Article 19 & 21 Rights Can Be Enforced Against Private Individuals & Entities : Supreme Court Holds By 4:1 Majority

In an important development, a Constitution Bench of the Supreme Court on Tuesday said that the fundamental rights enshrined in Articles 19 and 21 are enforceable even against persons other than the state or its instrumentalities.“A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”, the majority judgment held.Justice V. Ramasubramanian, writing the majority judgement on behalf of himself, and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna, highlighted how after A.K. Gopalan v. State of Madras, AIR 1950 SC 27 ‘lost its hold’, the top court has over time expanded the width of Article 21 in several areas such as health, environment, transportation, education, and rights of prisoners. A.K. Gopalan was a famous case in which a majority of five judges, while hearing the plea of a popular Indian communist leader who had been arrested under a preventive detention law, placed a narrow and restrictive meaning on Article 21. Justice Ramasubramanian wrote, “The original thinking that these rights can be enforced only against the state, changed over a period of time. The transformation was from ‘state’ to ‘authorities’ to ‘instrumentalities of state’ to ‘agency of the government’ to ‘impregnation with governmental character’ to ‘enjoyment of monopoly status conferred by state’ to ‘deep and pervasive control’ to the ‘nature of the duties/functions performed’.”In this connection, the Supreme Court judge also quoted Justice Vivian Bose’s famous words in S. Krishnan v. State of Madras, AIR 1951 SC 301 about not placing undue importance on petty linguistic details, and ‘penetrating deep into the heart and spirit of the Constitution’. On the strength of this prescription, Justice Ramasubramanian proceeded to answer the question whether a fundamental right under Articles 19 or 21 could be claimed other than against the state or its instrumentalities, in the affirmative. “The answer to [this] question is partly found in the nine-Judge Bench decision in Justice K.S. Puttaswamy itself,” he acknowledged, referring to how, in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, the right to privacy was recognised as a right which ‘protected the inner sphere of the individuals from interference by both the state and nonstate actors’. Going one step further, the majority of the five-Judge Bench also held that the state was under a duty to affirmatively protect Article 21 rights of a person against any threat to their personal liberty, even if such a threat originated from a non-state actor.Justice Nagarathna dissentsNotably, Justice B.V. Nagarathna took a different stand with respect to the horizontal application of Articles 19 and 21. While her colleagues on the bench held that the rights guaranteed by the said articles of the Constitution could be enforced even against persons other than the state or its instrumentalities, Justice Nagarathna highlighted the practical difficulty of permitting such constitutionally consecrated rights to operate against private individuals and entities. Horizontal application of fundamental rights under Articles 19 and 21 could be permitted, she said, only if the elementary differences between a fundamental right and the congruent common law right, the incidence of duty to respect each of such forms of rights, and the forum which would be called upon to adjudicate on the failure to respect each of such rights were ignored. According to Justice Nagarathna, although this court, through its ‘jurisprudential labour’ has progressively expanded the scope of Article 12 of the Constitution so as to ensure that a private entity performing a public duty or function and therefore ‘informing our national life’, does not escape the discipline of Part III merely because it is not ‘state’ stricto sensu, “a private body, acting in a private capacity, fulfilling a private function, cannot be axiomatically amenable to the claims of fundamental rights violations”. She added that recognising a horizontal approach of fundamental rights between citizens inter se would render redundant, all the tests and doctrines forged by this Court to identify ‘State’ for the purpose of entertaining claims of fundamental rights violations. Quite apart from that, on account of the availability of an alternate remedy under common law, the courts would be reluctant to entertain a writ petition, the judge claimed. Finally, if these fundamental rights were allowed to operate horizontally, writ courts, which do not enter into the adjudication of disputed questions of fact, would have to invariably deal with such questions of fact. In support of her conclusion, relying on judgements that showed the top court’s disinclination or reluctance in recognising that the said fundamental rights could operate horizontally, Justice Nagarathna said, “The rights in the realm of common law which may be similar or identical in their content to the fundamental...

Article 19 & 21 Rights Can Be Enforced Against Private Individuals & Entities : Supreme Court Holds By 4:1 Majority

Awstika Das

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