2016 Order 05-Oct-2017

WP(Crl.)No.
113/2016 1
ITEM NO.7 COURT NO.1 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Criminal) No(s).113/2016
KAUSHAL KISHOR Petitioner(s)
VERSUS
THE STATE OF UTTAR PRADESH GOVT.OF U.P.HOME SECRETARY Respondent(s)
(FOR [AD-INTERIM ORDER AND DIRECTIONS] ON IA 14656/2016)
Date : 05-10-2017 These matters were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE A.M. KHANWILKAR
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
Amicus Curiae(s) Mr.F.S.Nariman, Sr.Adv.
Mr.Harish Salve, Sr.Adv.
For Petitioner(s) Mr.Rishi Kapoor, Adv.

Ms.Manju Jetley, AOR
For Respondent(s) Mr.T.N.Singh, Adv.

Mr.Upendra Mishra, Adv.
Mr.Vinay Garg, Adv.
Mr.Ravi Prakash Mehrotra, AOR(NP)
Mrs.Nidhi Khanna, Adv.

Mr.A.Puri, Adv.
Mr.Prabhas Bajaj, Adv.
Ms.Aarti Sharma, Adv.
Mr.Akshay Amritanshu, Adv.
Mr.Mukesh Kumar Maroria, AOR
Mr.Lakshmi Raman Singh, AOR
UPON hearing the counsel the Court made the following

O R D E R
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2017.10.07
09:40:52 TLT
Heard Mr.F.S.Nariman and Mr.Harish Salve, learned senior
Reason:
counsel, who have been assisting this Court as amicus curiae.
After some hearing, it is submitted by the learned senior

WP(Crl.)No.113/2016 2
counsel that this is a matter of great importance and should be
referred to the Constitution Bench under Article 145(3) of the
Constitution. Mr.F.S.Nariman, learned senior counsel further
submits that this Court has already framed four questions on
29.08.2016. The said questions are as follows:
“(a) When a victim files an F.I.R. alleging rape, gang

rape or murder or such other heinous offences
against another person or group of persons, whether
any individual holding a public office or a person
in authority or in-charge of governance, should be
allowed to comment on the crime stating that “it is
an outcome of political controversy”, more so, when
as an individual, he has nothing to do with the
offences in question?
(b) Should the “State”, the protector of citizens and

responsible for law and order situation, allow these
comments as they have the effect potentiality to
create a distrust in the mind of the victim as
regards the fair investigation and, in a way, the
entire system?
(c) Whether the statements do come within the ambit and

sweep of freedom of speech and expression or exceed
the boundary that is not permissible?
(d) Whether such comments (which are not meant for self
protection) defeat the concept of constitutional
compassion and also conception of constitutional
sensitivity?”
It is also submitted by him that the Constitution Bench
may not restrict its advertence to the questions but may also
include other questions. Mr.Nariman, learned senior counsel, has
framed four questions, which are as follows:
“1. Whether, and if so under what circumstances (if

any) would a private individual or group of private
individuals (including private corporations) be
required to conform to the rigor and discipline of
Article 21 (in the Fundamental Rights chapter) of
the Constitution – whether as “State” as broadly
defined, or otherwise;
WP(Crl.)No.113/2016 3
2. In what cases/circumstances is it permissible in

law for an individual or group of individuals to be
proceeded against to protect a third person's
fundamental right under Article 21 of the
Constitution;
3. Whether and if so in what circumstances should

private corporations whose activities have the
potential of affecting the life and health of the
people be subjected to the discipline of Article 21
– as opined (prima facie) in the Constitution Bench
decision of this Hon'ble Court in M.C.Mehta vs.
Union of India (1987);
4. Whether the acts and action of a public figure

(i.e. A Minister of a Central or State Government)
would be brought under, and be subjected to, the
discipline of Article 21 of the Constitution, where
it adversely effects the right of a third person to
a fair investigation of a criminal case and/or to a
fair trial of the case.”
Mr.Harish Salve, learned senior counsel, has also framed
three questions, which read as follows:
“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
the Westminster system of democracy and expressly
recognised in Article 75(3) and Article 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?”
Though we have mentioned the questions yet we may clarify
that we are not referring any particular question(s) to the
Constitution Bench but the matter in entirety.

WP(Crl.)No.113/2016 4
The matter be placed before the Constitution Bench after
taking necessary instructions from the Chief Justice of India.
(SATISH KUMAR YADAV) (H.S. PARASHER)

AR-CUM-PS ASSISTANT REGISTRAR

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WP(Crl.)No.

ITEM NO.7 COURT NO.1 SECTION X

Writ Petition(s)(Criminal) No(s).113/2016

KAUSHAL KISHOR Petitioner(s)

THE STATE OF UTTAR PRADESH GOVT.OF U.P.HOME SECRETARY Respondent(s)

(FOR [AD-INTERIM ORDER AND DIRECTIONS] ON IA 14656/2016)

Date : 05-10-2017 These matters were called on for hearing today.

Amicus Curiae(s) Mr.F.S.Nariman, Sr.Adv.

Mr.Harish Salve, Sr.Adv.

For Petitioner(s) Mr.Rishi Kapoor, Adv.

For Respondent(s) Mr.T.N.Singh, Adv.

Mr.Ravi Prakash Mehrotra, AOR(NP)

Mrs.Nidhi Khanna, Adv.

Mr.Lakshmi Raman Singh, AOR

UPON hearing the counsel the Court made the following

counsel, who have been assisting this Court as amicus curiae.

After some hearing, it is submitted by the learned senior

counsel that this is a matter of great importance and should be

referred to the Constitution Bench under Article 145(3) of the

Constitution. Mr.F.S.Nariman, learned senior counsel further

submits that this Court has already framed four questions on

29.08.2016. The said questions are as follows:

“(a) When a victim files an F.I.R. alleging rape, gang

(b) Should the “State”, the protector of citizens and

(c) Whether the statements do come within the ambit and

It is also submitted by him that the Constitution Bench

include other questions. Mr.Nariman, learned senior counsel, has

framed four questions, which are as follows:

“1. Whether, and if so under what circumstances (if

2. In what cases/circumstances is it permissible in

3. Whether and if so in what circumstances should

4. Whether the acts and action of a public figure

Mr.Harish Salve, learned senior counsel, has also framed

three questions, which read as follows:

“1) Whether a statement made by a Minister, in

2) Whether a statement by a Minister, inconsistent

3. Whether the statement by a Minister, in relation

Though we have mentioned the questions yet we may clarify

that we are not referring any particular question(s) to the

Constitution Bench but the matter in entirety.

The matter be placed before the Constitution Bench after

taking necessary instructions from the Chief Justice of India.

(SATISH KUMAR YADAV) (H.S. PARASHER)

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