No value of Constitution if fundamental rights breached

The Constitution will "lose its importance" if there is no redressal for breach of fundamental rights, such as the right to life and fair trial, of the citizens by private individuals who are performing state actions, the Supreme Court said on Wednesday.

Fundamentals rights such as the right to life and equality and freedom of speech enshrined under the Constitution are enforceable against the State and its instrumentalities and the private parties, performing state actions, have been taking the plea that they cannot be held accountable for a breach of such rights of the citizens.

"The Constitution will lose its importance, if there is no redressal for the violation of fundamental rights (of citizens) by private parties performing government functions," a five-judge Constitution bench headed by Justice Arun Mishra observed while dealing with issues arising out of a case related to controversial statement by former UP minister Azam Khan over a rape case.

Senior advocate Harish Salve, who is assisting the bench as an amicus curiae, said "the idea that you have to be state employee or instrumentality to carry out the public duties died decades ago" as private individuals and firms are conducting functions which are primarily state functions.

The theory that only govt servants perform public service need to be relooked, he told the bench which also comprised Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat.

With the progress in the society, the role of the state has shrunk and the government authorities have lesser roles in our lives and our jurisprudence has to change accordingly, he said and referred to the work being conducted by private parties.

"So you are saying that if public duties like railways and collection of toll are given to private entities, they should be made responsible for upholding the fundamental rights," the bench said.

Salve said the time has come to "marry" the constitutional principle with the privileges to private entities to ensure the fundamental rights of the citizens.

The bench had earlier taken note of a controversial statement of Khan that the gruesome Bulandshahr gang-rape in 2016, was part of a "political conspiracy".

He had later tendered an unconditional apology before the apex court, which was accepted.

The top court, while disposing of the case against Khan, referred the matter to a five-judge bench to deal with larger issues such as whether a minister can make such a statement which is capable of infringing the rights of the victim to have a fair probe and trial.

Salve said that democracy is very fragile and it depends on the "faith of public on the system" and "the law of contempt is used not for the protection of an individual but for protecting the public faith in an institution".

He said, "the democracy is based on the faith of the people in the system" and moreover, a minister is bound by the oath under the Constitution and is obliged to preserve the constitutional values.

A minister, who has taken an oath to do right to all manner of people in accordance with the Constitution, has to exercise his "right of free speech consistent with his constitutional oath," he said.

The freedom of speech does not confer upon a minister an independent right to make statements that would "emasculate" the right to life and fair trial of victims, he said.

He said if the state fails to discharge its constitutional obligation then, aggrieved persons can seek damages against such errant public servants under the law of tort (civil wrong).

"The State is under a constitutional duty to ensure that the rights of its citizens are not violated and to create an ecosystem in which these rights can be enjoyed in their activist dimension," he said.

Earlier, the top court had framed five issues to be deliberated upon by it.

The first issue said whether the court can impose restrictions on freedom of speech beyond the restrictions provided presently under Article 19 (2) of the Constitution.

"Can a fundamental right under Article 19 (freedom of speech) or 21 (right to life) of the Constitution be claimed other than against the 'State' or its instrumentalities," the second issue read.

"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 third question said.

The fourth issue said that can a statement of a minister, traceable to any affairs of state, be "attributed vicariously to the government itself" in view of the principle of collective responsibility.

"Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution (which deals with fundamental rights), constitutes a violation of such constitutional rights and is actionable as 'Constitutional Tort' (civil wrong)," the fifth issue read.

The court was hearing a plea filed by a man, whose wife and daughter were allegedly gang-raped in July 2016 on a highway near Bulandshahr, seeking transfer of the case to Delhi and lodging of an FIR against Azam Khan for his controversial statement.