Ashwin Vardarajan
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On January 3, 2023, the Supreme Court (‘SC’) delivered its decision in Kaushal Kishor v. Union of India [Writ Petition (Criminal) No. 113 of 2016], where it, inter alia, held that Articles 19 and 21 of the Constitution of India may be enforced under Article 32/226 “against persons other than the State or its instrumentalities.” While confined to the application of only Articles 19 and 21, this ruling marks a consequential development in the jurisprudence of Indian constitutional law. However, the decision was not unanimous – the split was four-to-one, where Justice B.V. Nagarathna dissented. The majority judgment omits in addressing several questions relating to the horizontal application of fundamental rights, which shall be the points of discussion in this essay.
A Brief Summary
The majority opinion – comprising Justices Nazeer, Gavai, Bopanna and Ramasubramanian – has premised its ruling on three reasons. First, provisions under Part III of the Constitution (dealing with fundamental rights) are not entirely structured to be solely enforceable against the State and its instrumentalities. For example, Article 17 simply states that ‘“Untouchability” is abolished and its practice in any form is forbidden.’ Nothing in the language of Article 17 deals with the ‘State’ promoting or engaging untouchability, thereby giving space for the right against untouchability to be enforceable on private individuals as well. Likewise, in paragraph 73 of the majority opinion, the SC painstakingly enlisted several substantive rights guaranteed under Part III of the Constitution and found that many – including Articles 19 and 21 – are couched with language which does not make them enforceable only against the State and its instrumentalities.
Second, the SC also browsed through practice in foreign courts, including those of the USA, Ireland, South Africa, and the European Union. It was found that there is a trend present in foreign courts for the enforcement of rights against private individuals. Third, the SC traced through a series of its own previous judgments to show that there is a long-standing trend where fundamental rights have been enforced against private individuals – more on this later.
Nagarathna, in her dissent, inter alia, noted that rights under Part III were designed to govern the relationship between the State and its citizens, and not between two private persons or citizens. To her, this relationship was why Article 12 defines ‘State’ in Part III. The only exception to this rule, according J. Nagarathna, was the enforcement of the writ of habeas corpus, which is enforceable against private persons who have illegally detained or confined someone.
In addition, J. Nagarathna also pointed out three issues with the majority’s ruling: (1) in the presence of an alternative (and efficacious) remedy for the enforcement of common law rights – which overlap with fundamental rights under Articles 19 and 21 – providing a remedy under the writ powers of the Supreme Court might be infructuous; (2) a dispute concerning violation of rights may include complicated questions of fact, which a constitutional court is certainly not supposed to engage with; and (3) the idea of Part III governing the relationship between the State and its citizens, indicated by the presence of Article 12 in Part III, goes for a toss since, inherently, Articles 19 and 21 are designed to govern such a relationship.
The Problem of Contrary Rulings
The majority, in fairness, has taken a rather progressive step forward insofar as the enforcement of fundamental rights against private individuals is concerned. For instance, the enforcement of the right to privacy under Article 21 can be enforced with greater ease against big-tech firms collecting and processing personal data of citizens in India in appropriate cases. However, the SC has employed a rather loose reasoning for arriving at its ratio.
Some of the errors in the majority’s decision are glaringly obvious. For instance, the SC cited P.D. Shamdasani v. Central Bank of India Ltd. (1952), where it was held that Article 21 cannot be enforced against non-state entities since the words ‘procedure established by law’ – a ‘law’, as defined under Article 13, can only be brought into effect by the ‘State’ (with the exception of ‘customs’, which may be uncodified) – necessarily excludes such a possibility. However, the Court does not engage at all with why this ruling should not be followed as a binding precedent. The only (possible) explanation we receive is in paragraph 76, where the SC noted:
‘To begin with, this Court was weary of extending the enforcement of fundamental rights against private individuals. But this reluctance changed over a period of time. Let us now see how the law evolved…’
After reproducing a catena of decisions to buttress this point, it was held that judicial trend shows how the SC has previously ‘applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator’ (sic). However, while the Court then, in P.D. Shamdasani, may have displayed ‘reluctance’ in enforcing Article 21 against private individuals, there must exist reasons for why this Court, now, chooses to not follow that decision. If a decision – that too delivered by a co-ordinated bench – does seem antique or untenable, there is a process of countenancing it: it is either bypassed on facts, or it is overruled by a larger bench. In Kaushal Kishor, the majority does none of this.
The majority also conveniently ignored other rulings by coordinated benches which have delivered opposite rulings. One such decision identified by J. Nagarathna is Zoroastrian Cooperative Housing Society Limited v. District Registrar (2005). In this case, bye-laws of a society based in Mumbai was challenged as being in violation of Article 19(1), since it permitted only members of the Parsi community to be eligible members of an association. Dismissing this challenge, the SC ruled that since a cooperative society is not a ‘State’ under Article 12, the right to movement, association, trade etc., guaranteed under Article 19(1) cannot be enforced against such a society by way of a writ under Article 32. The same Article 19(1) has now been applied horizontally without even considering Zoroastrian Cooperative Housing Society.
Interestingly, all decisions cited by the SC to display the judicial trend of horizontality at home are either premised in a completely different context, concern enforcement of rights against at least one State instrumentality, led to the enforcement of rights against private persons only because of the presence of a law catalysing it, or (oddly enough) are contrary to the decision this Court wished to arrive at. The exception, however, cited by the majority to buttress its reasoning was People’s Union for Democratic Rights v. Union of India (1982). This case dealt with a plea concerning the deplorable conditions of wage labourers working on building infrastructure for the 1982 Asian Games in Delhi. In view of the facts presented before them, the SC ruled that the rights under Articles 17 (untouchability), 23 (prohibition on human trafficking and forced labour) and 24 (prohibition of child labour in factories) were not only enforceable against the State but also private individuals who promote or engage in activities prohibited under the said provisions.
However, what differentiates Articles 17, 23 and 24 from Articles 19 and 21 (as were in consideration in the present case) is that the former are rights in the form of absolute prohibitions concerning certain punishable offences (like untouchability), whereas the latter are rights guaranteed to persons, exercisable with certain applicable restrictions. This distinction is important, as Article 19(1) has restrictions capable of being imposed by laws in accordance with Articles 19(2)-(6), and the right to life and liberty under Article 21 may be curtailed by way of a ‘procedure established by law’. Emphasis on ‘laws’, defined under Article 13(3)(a), was entirely missing in the SC’s elaborate reading of several provisions under Part III (in paragraph 73, as mentioned).
Admittedly, one of the reasons why Article 13 finds mention in Part III is to delineate what may constitute a ‘law’ to enable or restrict the exercise of fundamental rights. And as ruled in P.D. Shamdasani, a ‘law’ can only be enacted by the State or its instrumentality, and not by private persons. Read this way, Articles 19(1) and 21 traditionally emphasise on the relationship between the State and its citizens/individuals, and not inter-se between private persons. Given that the SC in Kaushal Kishor was breaking away from this tradition, it should have engaged with such jurisprudential differences in a meaningful way and carved a way to resolve its differences with several co-ordinate bench decisions.
Further Unanswered Questions
Some of the questions raised by J. Nagarathna in her dissent also deserve to be considered, which the majority opinion did not unfortunately. One of her critiques concerned the presence of an alternative remedy for the purposes of enforcing Articles 19 and 21 through Article 226 or in lower courts if a common law right (ostensibly overlapping with the rights under Articles 19 and 21, when horizontally applied). To an extent, that is true, since the Supreme Court has often disdained from allowing petitions which may be entertained appropriately elsewhere. Thomas Paul[i] has, for instance, highlighted the tendency of smaller benches of the Supreme Court to dismiss Article 32 petitions for the enforcement of fundamental rights and refer cases to High Courts instead for the reason of unburdening themselves. Such behaviour pre-empts how the Supreme Court may, in the long run, not entertain many, if not most, cases of fundamental rights violation between private persons. On top of that, the SC has rarely engaged in disputed and complicated questions of fact, which private disputes often entail.
The judicially accepted reading of Article 32 too does not permit such horizontal application of Articles 21 and 19. While Article 32(1) simply reads that the ‘right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by [Part III] is guaranteed’, a constitutional bench in Zee Telefilms Ltd. v. Union of India (2005) refused to enforce such rights against the Board of Control for Cricket in India, which is a private organisation operating as a registered society. The Court, rather, said that the ambit of Article 226 was wide enough to instead entertain such cases and held that such cases must go first to High Courts. While Zee Telefilms was cited by the Court, it was not at all discussed at length.
A possible solution to this would have been to read the ‘public functions’ test (applicable under Article 226) into Article 32. Dealing with the powers of High Courts to issue writs for the enforcement of fundamental rights, Article 226 allows such writs to be issued against ‘any person or authority’ – an enforcement power wider than that under Article 32. The ‘public functions’ test empowers, accordingly, the High Court to enforce fundamental rights against bodies, other than the ‘State’, which perform functions by nature such that are performed by ‘government agencies’, or are ‘activities which are too fundamental to the society’. However, reading this test into Article 32 would potentially leave the Court directly at odds with the decision in Zee Telefilms, which read the ‘public functions’ test solely under Article 226, and limited Article 32 to apply to the ‘State’.
Conclusion
In order to resolve the apparent jurisprudential differences which exist, the SC should have, ideally, referred the matter under Article 145(3) to a larger bench, keeping in mind the contrary rulings of co-ordinated benches and the questions that needed further addressing. In addition, the SC has seemingly applied Articles 19 and 21 horizontally plenarily, without defining any limitations. Reading the enforcement powers under Article 32 too expansively would also expose the SC to a flood of petitions concerning the horizontal application of rights. Installing certain limitations on the horizontal application of fundamental rights are, thus, necessary in order to filter cases which might head a court’s way. We see this in other jurisdictions too: Section 8(2) of the South African Constitution (which was, again, surprisingly cited by the Court), for instance, limits the application of rights horizontally “taking into account the nature of the right and the nature of any duty imposed by the right.”
Moreover, horizontality, as Johan van der Walt has written, is ‘more fundamentally concerned with the question of whether a bearer of legal subjectivity is involved in the privatisation of the political process or the public sphere’, which accordingly requires rights enforcement-based safeguards against those who ‘[usurp] political power by private or economic power’.[ii] Thus, horizontality cannot be understood simply as the plenary enforcement of rights against private individuals, but rather should focus on such private persons who possess considerable political and economic power to materially affect the fundamental rights of individuals. This perhaps also strengths why the ‘public function’ test should be read into Article 32 when a future opportunity presents itself, and why the demarcation by J. Nagarathna between common law rights (enforced in lower courts) and fundamental and constitutional rights (enforced in constitutional courts) was appropriate. Interestingly, the SC in Puttaswamy v. Union of India (2017) too agreed with J. Nagarathna’s distinction (see, PDF pp. 326-27).
By not paying heed to such issues, Kaushal Kishor leaves the jurisprudence on the horizontal application of fundamental rights incomplete. The SC must, therefore, address them in the future.
[i] Thomas Paul, ‘Is Constitutional Right Subject to Trimming by the Supreme Court?’ (2005) 47(1) Journal of Indian Law Institute 102-109
[ii] Johan van der Walt, ‘Blixen’s Difference: Horizontal Application of Fundamental Rights and the Resistance to Neo-colonialism’ (2003) 2003(2) Journal of South African Law 311, 312-13
Ashwin Vardarajan is a final year student of law at Symbiosis Law School, Pune.
