This article has been written by Pradnya Vishal Gangurde, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution at LawSikho, and edited by Shashwat Kaushik. This article is a detailed analysis of whether the fundamental rights in Articles 19 and 21 of the Constitution are enforceable even against private citizens and not just the state and its instrumentalities.

It has been published by Rachit Garg.

Introduction

The fundamental rights enshrined in Part III of the Constitution of our country are supreme in protecting the rights and freedom of its citizens. The scope of Article 19 and Article 21 has been expanded by the Supreme Court’s judgement dated January 3, 2023, in writ petition Kaushal Kishor vs. The State of Uttar Pradesh and Ors. with a special leave petition, stating that they can be used not only against the state but also against private citizens. Whether freedom of speech and the right to express freely under Article 19 or the protection of life and personal liberty under Article 21 can be claimed against anyone other than the ‘State’ or its instrumentalities was one of the five issues raised in this matter. Rights such as restraining untouchability, forced labour, and trafficking are clearly available against the state as well as other individuals. In this article, we will delve into the significance of Article 19 and Article 21 and explore the implications of their enforceability beyond the state.

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What are fundamental rights

Fundamental rights are a set of basic rights and freedoms that are considered essential for the development and well-being of individuals. These rights are given by our constitution to its citizens. They are designed to protect the inherent dignity, equality, and liberty of every person. In India, the Constitution guarantees several fundamental rights in Part III, such as:

If any of the fundamental rights of a citizen have been violated, he can seek help from the high court or Supreme Court of India. He can file a writ for the enforcement of fundamental rights in the high court under Article 226 and in the Supreme Court under Article 32 of the Constitution.

What is Article 19

The citizens of India are bestowed with the right to freedom of speech under Article 19(1), which guarantees every citizen their freedom of speech and right to express freely, assemble peacefully without arms, form associations or unions, enjoy the freedom of movement within the country, choose a place to reside and settle, and pursue any profession, trade, occupation, or business.

These rights are subject to restrictions and are not absolute; the Constitution has given the state the right to impose certain reasonable restrictions on each of the rights as may be required in the interest of the citizens. Clauses 2 to 6 of Article 19 provide these restrictions.

Article 19(2)

Article 19(2) states that the right to freedom of speech and expression shall not hinder the functioning of any current law or prevent the state from enacting laws that impose reasonable limitations on exercising the right. These limitations are imposed in the interest of safeguarding the sovereignty and integrity of India, maintaining national security, fostering friendly relations with other countries, upholding public order, decency, or morality, or dealing with contempt of court, defamation, or incitement to commit an offence.  

Article 19(3)

Article 19(3) states that the right to assemble peacefully without arms shall not affect the operation of any existing law. The state can enact laws that impose reasonable restrictions in the interest of the sovereignty, public order, and integrity of India.  

Article 19(4)

Article 19(4) puts restrictions on the freedom to form associations or unions in the interest of public order, morality, sovereignty, and integrity in India.  

Article 19(5)

In Article 19(5), the citizen can enjoy the freedom of movement within the country and choose a place to reside and settle in such a manner that the operation of any existing law will remain unaffected. The state can enact laws imposing reasonable restrictions on these rights in the interest of the general public or to protect the interests of any Scheduled Tribe.

Article 19(6) 

Article 19(6) states that the citizens have the right to pursue any profession, trade, occupation, or business, but in the interest of the general public, the state can make laws relating to the technical or professional qualifications that are required for practising any profession or engaging in a trade, occupation or business.

What is Article 21

Article 21 emphasises the protection of life and personal liberty as fundamental rights. It states that no person can be deprived of their life or personal liberty except through a legally established procedure. This means that any infringement on these rights must be done in accordance with a lawful process. The purpose of this provision is to ensure that the state cannot arbitrarily take away someone’s life or personal liberty without following due process of law. It guarantees the safeguarding of these fundamental rights and serves as a protection against any unlawful deprivation.

Significance of Article 19(1) and Article 21

The statement by George Washington, “If the freedom of speech is taken away then dumb and silent, we may be led, like sheep to the slaughter” highlights the importance of freedom of speech in society. It suggests that when people are unable to express their thoughts, ideas, and opinions freely, they become passive and vulnerable to manipulation and oppression.

Freedom of speech is a fundamental human right that allows people to express themselves freely without fear. It enables open conversation, the exchange of different viewpoints, and the progress of society. When people are not allowed to express themselves, they blindly follow oppressive ideologies or policies. They may become submissive, unaware of their rights, and easily manipulated by those in power.

Every individual is born free and has the right to life and liberty. Protection of everyone’s life and personal liberty is essential to ensuring a just and secure society. Whenever an individual’s life and liberty are secured, they can fearlessly contribute to society and explore new ideas to pursue self-development that will lead to the development of society.

Hence, freedom of speech and the protection of life and personal liberty provided under Article 19(1) and Article 21 are critical for the proper operation of democracy. It is the responsibility of the state as well as every other individual to ensure that they do not violate the rights and freedoms of other citizens.

The judgement by the Supreme Court on January 3, 2023, in writ petition Kaushal Kishor vs. The State Of Uttar Pradesh Govt. and Ors. with the special leave petition ruled that the rights guaranteed under Article 19(1) and Article 21 can be enforced against private individuals and not only against the state.

Kaushal Kishor vs. The State Of Uttar Pradesh Govt. and Ors. (2023)

Facts of the case

The facts of the writ petition were that the petitioner and members of his family were travelling to attend a relative’s funeral on July 29, 2016, when they were stopped by a gang on the national highway. The possessions of the petitioner and his family members, including cash and jewellery, were snatched away by the gang. The petitioner’s wife and minor daughter were also gang raped by the gang. Azam Khan, the then Union Minister for Urban Development in the Government of Uttar Pradesh, called for the press conference and termed the incident a political conspiracy, although an FIR was registered on July 30th, 2016 for various offences, and newspapers and television channels reported this incident. The petitioner was upset by the careless statement made by the minister and was afraid that a fair investigation in the matter would be hampered; therefore, he filed a writ petition for several reliefs, including monitoring the investigation of the FIR and the trial of the case outside the state, and prayed for the registration of a complaint against the minister for the outrageous statements made by him against the victims. Following the order of the Supreme Court, Azam Khan issued an unconditional apology, which was accepted by the Court, and the Court moved towards the other questions regarding freedom of speech and protection of life and liberty that were raised due to the statements of the minister.

The second special leave petition arising out of the judgement of the Kerala High Court dismissing two writ petitions also came before the same three member bench. The writ petition was filed on the basis that the Minister for Electricity in the state of Kerala issued certain statements in February 2016 and April 2017 that were extremely disparaging towards women. The Minister faced no official consequences, but his political party publicly reprimanded him. Hence, writ petitions were filed by the petitioner, in which he requested that a direction be given to the Chief Minister to structure a code of conduct for ministers who are bound by the constitutional oath of office and take appropriate measures if any of the ministers failed to uphold the oath. In the second Writ, the petitioner requested instruction to the relevant authority to take action against the Minister in question due to his statements. The division bench of the Kerala High Court rejected both petitions, stating that it falls outside the domain of the Court to decide whether the code of conduct for Ministers can be framed by the Chief Minister. 

Issues to be determined

Five similar issues, as mentioned below, were raised in both matters:

  1. Can the restrictions on the freedom of speech mentioned in Article 19(2) be imposed based on reasons not found in it by invoking other fundamental rights, and are these restrictions comprehensive?
  2. Whether freedom of speech and the right to express freely under Article 19 or the protection of life and personal liberty under Article 21, given as the fundamental rights by the Constitution of India, can be claimed against anyone other than the ‘State’ or its instrumentalities.
  3. Is the state obligated to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India, even when the liberty of the citizen is threatened by the actions or negligence of another citizen or private citizen?
  4. Whether the Government itself should be held vicariously liable for the statement by a Minister, traceable to any affairs of the state, or made to protect the Government, especially in the light of the principle of collective responsibility.
  5. Whether a statement made by a minister that is not consistent with the fundamental rights of the citizens enshrined in Part 3 of the Constitution amounts to a violation of constitutional rights, and can action be taken as a “Constitutional Tort”?

Arguments

The Court heard the learned Attorney General of India, Mr. R. Venkataramani; Ms. Aparajita Singh, who assisted as amicus curiae; Counsel for the petitioner, Mr. Kaleeswaram Raj, in the special leave petition; and counsel who sought to intervene, Mr. Ranjith B. Marar.

One of the issues to be determined by the court was whether freedom of speech and the right to express freely under Article 19 or the protection of life and personal liberty under Article 21, given as the fundamental rights by the Constitution of India, can be claimed against anyone other than the ‘State’ or its instrumentalities. It was contended by the Attorney General, Mr. R. Venkataramani, that the Constitution has inherent arrangements for claims of fundamental rights against the state or its instrumentalities. Furthermore, it has enacted provisions to address breaches or violations of fundamental rights by persons other than the State or its instrumentalities. But it would essentially amount to constitutional change if any proposal to include subjects or matters for which claims can be made against persons other than the state is introduced. 

Ms. Aparajita Singh submitted that some fundamental rights, such as access to shops, public restaurants, hotels, and places of public entertainment, restraining untouchability, forced labour, and trafficking, are clearly available not only against the state but also against other individuals. She further pointed out that some of the elements of Article 21, such as the right to a clean environment, have been upheld and enforced against private entities. In the case of M.C. Mehta vs. Kamal Nath and Ors. (1996), damages were awarded against non-state actors for violation of the right to a clean environment, as guaranteed under Article 21. In the same way, the majority and concurring opinions in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India (2018), while elaborating on the duty of the state and non-state actors to protect the rights of citizens, pointed out that for the acknowledgement and enforcement of claims against non-State actors, legislative intervention might be necessary. However, in the context of Article 19, a 1951 Constitution Bench ruling in P.D. Shamdasani vs. Central Bank of India Ltd. declared it not applicable against private individuals. 

Mr. Kaleeswaram Raj submitted that for the enforcement of fundamental rights against non-state actors, the transition from a vertical approach to the concept of horizontal application is justified as the role of the state is ever expanding with the Nation States slowly moving towards welfare governance. The vertical approach implies a scenario in which enforceability is solely against the Government and does not extend to private actors. In India, for enforcing fundamental rights, such as access to shops, public restaurants, hotels, and places of public entertainment, restraining untouchability, forced labour, and trafficking, a direct horizontal approach can be seen. He further argued that countries like Canada and Germany have embraced an indirect horizontal application, wherein the rights govern the laws and the statutes, which, in turn, regulate the conduct of citizens. The court has time and again held that the power under Article 226 is available not only against the Government and its instrumentalities but also against any person or authority. There are a number of examples where the Supreme Court has issued writs under Article 32 against non-State actors where private entities were performing public duties and non-State actors were doing statutory activities that impact the rights of citizens.

Judgement of the Court

The decision on all five issues raised was given by the Five Judges Constitution Bench. Regarding issue no. 2, the majority of the bench opined that the fundamental right under Article 19 or Article 21 can be enforced even against persons other than the state or its instrumentalities. The Supreme Court, while making the decision, said that the issue before them is whether Part III of the Constitution has a vertical or horizontal effect. The vertical effect is when the rights of an individual are enforceable only against the action of the Government, but when the rights are enforceable against the government as well as private individuals, it is said to have a horizontal effect. The Court said that there is no jurisdiction in the world that adopts a pure vertical or horizontal approach. While arriving at this decision, the bench referred to several decisions of foreign countries. The bench referred to the decision by the U.S. Supreme Court, wherein it overturned the decision in the matter of Jones vs. Alfred H. Mayer Co. (1968), stating that Congress could regulate the sale of private property to prevent racial discrimination. In this case, a suit was filed by Joseph Lee Jones in the District Court against Alfred H. Mayer Co.; he alleged the company refused to sell a property to him because he was African American. Jones relied on 42 U.S.C. § 1982, which provides that all citizens of the United States have the same right in every state and territory as white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. The complaint was dismissed by the District Court, and the decision was also affirmed by the Court of Appeals on the ground that the 13 and 14 amendments apply only to state action and do not apply to private refusal. This decision of the U.S. Supreme Court was noted as a shift from a purely vertical approach to a horizontal approach. The bench also discussed how the rights provided in the Irish Constitution have a horizontal effect.

It was also noted that some of the rights guaranteed in Part III of the Constitution are directed to the state, while others, such as those under Article 15(2)(a) and (b), Article 17, Article 20(2), Article 21, Article 23, Article 24, and Article 29(2), are enforceable against non-state actors as well. The court also referenced the case of M.C. Mehta vs. Kamal Nath, which was highlighted by the learned amicus curiae, wherein damages were awarded against non-State actors under the environmental law, and many other cases where the Court applied a horizontal approach. The bench also referred to the decision in the case of Justice K.S. Puttaswamy (Retd.) vs. the Union of India, wherein privacy was upheld as a fundamental right that protects the privacy of the person from being breached by both the State and non-state actors. The Supreme Court has therefore taken a horizontal approach and decided that “a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”.

However, Justice B.V. Nagarathna J. held a different view, stating that while a fundamental right under Article 19 or Article 21 might serve as a basis for seeking common law remedies, it cannot be enforced against individuals other than the State or its instrumentalities. On the other hand, a remedy in the form of a writ of Habeas Corpus can be sought against a private individual before a Constitutional Court through Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court.

Conclusion

This judgement will have far-reaching consequences for the concept of fundamental rights. When the Constitution of India was drafted, it was assumed that most of the fundamental rights were available against the state; however, over time, this perception appears to have evolved. It has now become obligatory on the part of the Government to ensure that non-State actors respect the fundamental rights of the individual. In today’s digital world, almost everyone has access to social media. Numerous platforms enable people to freely express themselves, but this openness can lead to instances where one person’s comments may hurt another. It is the responsibility of each individual to respect the freedom of others and their right to express themselves. Hence, fundamental rights, which are an important pillar of our democratic society, must be exercised responsibly, respecting the rights and dignity of other people.

 References

  1. https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2023/05/2023050195.pdf
  2. https://indiankanoon.org/doc/103640961/
  3. https://blog.ipleaders.in/kaushal-kishore-vs-state-uttar-pradesh-restrictions-article-191a/
  4. https://indiankanoon.org/doc/1514672/
  5. https://indiankanoon.org/doc/525184/
  6. https://indiankanoon.org/doc/127517806/
  7. https://tile.loc.gov/storage-services/service/ll/usrep/usrep392/usrep392409/usrep392409.pdf

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