- Bookmark
- Share
- CaseIQ
Kaushal Kishor v. State Of Uttar Pradesh And Others
Factual and Procedural Background
This writ petition (Criminal) No. 113 of 2016 came before the Supreme Court of India. The opinion contains two interlocutory orders that chart the procedural course of the matter. No underlying factual narrative giving rise to the petition is provided. The orders primarily record the Court’s effort to crystallise important constitutional questions involving the interaction between Article 19(1)(a) (freedom of speech and expression) and Article 21 (right to life and personal liberty) and its decision to place those questions before a larger bench.
Legal Issues Presented
- Whether the fundamental right to freedom of speech and expression under Article 19(1)(a) is regulated exclusively by the restrictions enumerated in Article 19(2), or whether the guarantees contained in Article 21 also impose independent or additional limitations on that freedom.
- Whether criminal prosecution can be sustained on grounds of “decency or morality” under Article 19(2) in the present matter (the Court noted that such prosecution “does not arise” on the facts before it).
Arguments of the Parties
Amicus Curiae – Mr F.S. Nariman
- Sought additional time to “think further and formulate” propositions on how to balance the rights under Articles 19(1)(a) and 21.
Union of India (Mr Mukul Rohatgi, Attorney General)
- Contended that criminal prosecution cannot be based on “decency or morality” under Article 19(2), and in any event such prosecution is not in issue in this case.
Amicus Curiae – Mr Harish Salve
- Expressed that Article 19(2) may be the sole textual limitation on Article 19(1)(a), yet emphasised that the freedom of speech and expression “has its own inherent contours” and “is not boundless.”
- Highlighted “inherent limitation in various articles,” implying an inter-relationship among fundamental rights.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court recognised the constitutional importance of determining how Articles 19(1)(a), 19(2) and 21 interact. Given the “importance of the matter,” the bench concluded that authoritative resolution requires consideration by a Constitution Bench under Article 145(3) of the Constitution. Before making the reference, the Court directed the appointed amici curiae to draft and file a set of precise questions of law to guide the larger bench. The orders also acknowledge the Attorney General’s request for additional time to prepare, and accommodate scheduling needs by fixing further dates.
Holding and Implications
REFERRED TO CONSTITUTION BENCH
Direct Effect: The writ petition itself remains undecided on merits; the matter is transferred to a Constitution Bench after the amici formulate the questions of law within one week. Broader Implications: The decision signals the Supreme Court’s intent to clarify whether Article 21 can serve as an independent constraint on free speech in addition to Article 19(2). No new precedent is created at this stage, but the forthcoming Constitution Bench ruling is poised to shape Indian constitutional jurisprudence on the interplay of fundamental rights.
(2018) 11 SCC 562 (1)
Order dated 29-3-2017
(Before Dipak Misra and A.M. Khanwilkar, JJ.)
Writ Petition (Crl.) No. 113 of 2016
1. Mr F.S. Nariman, learned Senior Counsel (who was appointed as Amicus Curiae) being assisted by Mr S.C. Sharma submitted that he requires some more time to think further and formulate the propositions with regard to the balancing of two preferential rights, namely, the right under Article 19(1)(a) and the right under Article 21.
2. Mr Mukul Rohatgi, learned Attorney General submitted that there cannot be a criminal prosecution on the ground of decency or morality under Article 19(2). Needless to say, the question of criminal prosecution does not arise in this case.
3. The core issue, as is projected before us, is whether the right conferred under Article 19(1)(a) is to be controlled singularly by the language employed under Article 19(2) or also the other fundamental right, that is, right under Article 21 would have any impact on it.
4. Mr Harish Salve, learned Senior Counsel, who was present in Court, expressed his intention to assist the Court. It is submitted by Mr Salve that Article 19(2) may be the only controlling provision but the right of freedom of speech and expression as enshrined and spelt out under Article 19(1)(a), has its own inherent contours and it is not boundless.
5. Let the matter be listed on 20-4-2017 for final hearing.
(2018) 11 SCC 562 (2)
Order dated 20-4-2017
(Before Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar, JJ.)
Writ Petition (Crl.) No. 113 of 2016
6. Heard Mr Fali S. Nariman, learned Senior Counsel along with Mr Subhash Sharma, learned counsel, who have been appointed as Amicus Curiae and Mr Harish N. Salve, learned Senior Counsel, who has also been appointed as Amicus Curiae to assist the Court in the matter.
7. Ms Madhavi Divan, learned counsel appearing for the Union of India, has submitted that Mr Mukul Rohatgi, learned Attorney General for India will be arguing the matter if some time is granted.
8. Mr Nariman has filed a written note of submissions by referring to certain judgments. We do not intend to record the submissions advanced today for a different reason. Mr Salve has also pointed out the inherent limitation in various articles.
9. Regard being had to the importance of the matter, we think it is seemly to refer the matter to the Constitution Bench, but prior to that, we would like to request the Amicus Curiae to formulate the propositions of law for the purpose of reference. The said propositions may be filed within a week hence.
10. Let the matter be listed on 2-5-2017.
Court Masters
Alert