'Can A Fundamental Right Under Art 19 Or 21 Of Constitution Be Claimed Other Than Against State Or Its Instrumentalities?' SC Frames Issues

The Constitution Bench of the Supreme Court on Thursday discussed the framing of issues in the Kaushal Kishor case.

Senior Advocate Harish Salve, who has been appointed as an amicus curiae in the case, told the bench :

"If you are holding a constitutional office, you have to give up some rights"

Salve also mentioned that judges too exercise restraint by virtue of their office.

"There are all sorts of things written about the court , my lords don't say anything", he said.

The hearing is taking place before the bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Ravindra Bhat.


Salve and Attorney General K K Venugopal then handed over their respective drafts of issues framed in the case.

Issues proposed by the AG :

  1. Can a fundamental right under Article 19 or 21 of the Constitution be claimed other than against the 'State' or its instrumentalities?
  2. Are the grounds specified in Article 19(2), in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
  3. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of collective responsibility?


Issues proposed by Sr Adv Salve :

  1. Whether a statement made by a Minister, in relation to a matter of government business, is attributable to the government on account of the principle of Collective Responsibility inherent in Westminister system of democracy and expressly recognized in Article 75(3) and 164(2) of the Constitution.
  2. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable?
  3. Whether the statement by a Minister, in relation to government business, which is violative of the constitutional rights of a citizen, can constitute a "Constitutional Tort" as being an action which is "improper abuse of public power"and thereby actionable in damages?
  4. Whether the limitations on speech arising out of incidents of a constitutional office constitute a violation of the right to free speech under Article 19(1)(a) of the Constitution?
  5. Whether the rights under Article 21 are available against private persons?
  6. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?


The Court has framed issued accepting all of the suggestions of the AG and suggestions (2), (3) and (6) submitted by Salve.