characterizing the unfortunate event as a "political conspiracy only and nothing else" Following this, the Court directed Khan to tender an unconditional apology, observing that the case raised significant concerns regarding state obligations and the freedom of speech and expression. Consequently, the matter was referred to a Constitution Bench in 2017, based on specific questions formulated by Senior Advocates Fali S Nariman and Harish Salve, who were appointed as amici curiae.

To comprehend the perspective outlined by the esteemed Justice Nagarathna in her dissenting opinion concerning freedom of speech and expression, it is imperative to grasp the legal issues raised in the aforementioned case. The following issues were formulated, and the court resolved them as follows:

1.Whether the Court possesses the authority to impose limitations on the freedom of speech and expression beyond the existing restrictions stipulated under Article 19(2) of the Constitution?

The Court ruled that supplementary limitations, absent in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) of the Constitution.

2.Is it possible to assert a Fundamental Right pursuant to Articles 19 and 21 of the Constitution against entities other than the 'State' or its instrumentalities?

The court ruled that the enforcement of Article 19 and 21 of the Constitution is applicable even against individuals or entities beyond the 'State' or its instrumentalities.

3.Is the State obligated to proactively safeguard the rights of citizens under Article 21 of the Constitution, even in instances where there is a threat to the liberty of the citizen due to the actions or inactions of another citizen or private entity?

The court determined that the State bears a duty to actively safeguard the rights of individuals under Article 21 of the Constitution in the event of a threat to personal liberty, irrespective of whether it originates from a non-State actor.

4.Is the statement made by a Minister, pertaining to state affairs, to be imputed vicariously to the government due to the failure to adhere to the principle of collective responsibility?

The court ruled that a statement made by a Minister, even if linked to state affairs or intended to safeguard the government, cannot be imputed vicariously to the government by invoking the principle of collective responsibility.

5. Is a statement made by a Minister, which contradicts the rights conferred upon citizens under Part III of the Constitution, considered a breach of such Fundamental Rights and actionable as a 'Constitutional Tort' (civil wrong)?

The Court held that the mere statement made by a Minister inconsistent with the rights of citizens may not constitute violation of constitutional rights and to become actionable as constitutional tort. But, if as a consequence of such a statement, any act of omission or commission is done by the officers resorting in loss to a citizen then the same may be actionable as a constitutional tort. The court's observation in this judgment introduced a new paradigm in the understanding of constitutional torts.

Meaning of constitutional tort-

"A statement may be made by a Minister either inside or outside the House of People/Legislative Assembly of the State. A statement may also be made by a Minister in writing or by words spoken. A statement may be made in private or in public. A statement may also be made by a Minister either touching upon the affairs of the Ministry/ department of which he is in control or touching generally upon the policies of the Government of which he is a part. A Minister may also make a statement, in the form of an opinion on matters about which he or his department is not concerned or over which he has no control. All such statements need not necessarily give rise to an action in tort or in constitutional tort."

Historical background on liability of state in tort-

• ⮚ The concept of Constitutional Tort Law is based on the archaic English law.
• ⮚ Law Commission in 1956 had outlined certain principles on which appropriate legislation on the tortious liability of the state would proceed, in its first report on the ‘Liability of the State in Tort’.
• ⮚ A bill known as the government (Liability in Torts) Bill was introduced in 1967.
• ⮚Supreme Court in Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SSC 1039 recommended a legislative measure on the subject-matter.
• ⮚ The Supreme Court in Common Cause, a Registered Society vs. Union of India held that no civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. now let us understand the observation given by the honourable justice Nagarathna, why she did not agree with the approach laid down by the majority judges on liability of ministers in constitutional tort.

Opinion of Justice Nagarathna on constitutional tort-

Justice Nagarathna has adopted a cautious approach in making liability on constitutional tort. She said that this remedy is available not as a norm, but only in exceptional circumstances. She further held that it must be borne in mind that the tool of treating an action as a constitutional tort must not be wielded only in instances wherein state lawlessness and indifference to the right to life and personal liberties have caused immense suffering. Therefore, she recommended the promulgation of a proper legal framework to define the acts or omissions amounting to constitutional tort and the manner in which they would be redressed or remedied on the basis of judicial precedent. In her dissent note she proposed to hold the government vicariously liable for a statement made by a minister that is traceable to any affairs of the state or for the protection of the government by invoking the principle of collective responsibility. While the other four judges on the Constitution Bench, rejected the contention that vicarious liability could be envisaged in such a situation.

Conclusion- As the case was decided with 4:1 Majority wherein the judges in majority held that a statement by a minister would be actionable as a constitutional tort if such a statement leads to an act or omission by officers of the state resulting in harm or loss to a person or citizen.

While justice Nagarathna in her dissent note had alarmed about the complexity in adopting the approach introduced by majority judges. She suggested that, it would not be prudent to treat all cases where a statement made by a public functionary has resulted in harm or loss to a person or citizen, as a constitutional tort it must be borne in mind that the tool of treating an action as a constitutional tort must not be wielded only in instances wherein state lawlessness and indifference to the right to life and personal liberties have caused immense suffering.