The author, Saumya Tripathi is a second-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow
Featured Artwork: Understanding Fundamental Rights in the Indian Constitution by Gyanchakra
The Indian jurisprudence regarding the applicability of fundamental rights enshrined in the constitution had in its initial stages followed strict adherence to the principle that fundamental rights can be imposed only against the ‘State’ as defined under Article 12. This is what is called the vertical application. However, over time, through judicial precedents, the definition of State has been expanded to encompass in it, several bodies; not necessarily having complete ownership of the government.
The judgement in Kaushal Kishor has marked a tectonic shift in its approach wherein the Supreme Court pronounced that right under Articles 19 and 21 can be enforced against private parties other than the State as well. This marks a milestone in the journey of ‘horizontal’ enforcement of fundamental rights. Although this concept is not alien to our constitution as rights under Articles 15(2), 17 and 23 all have a horizontal character to an extent but extending its scope to other rights raises some pertinent questions to which Indian jurisprudence does not fetch any answers as of now.
In the light of these contemporary developments, this article seeks to analyse the various perspectives on application of fundamental rights and endeavours to gauge the feasibility of the horizontal approach especially in relation to the areas of free speech and expression and right to life in India.
In Brief: Decoding The Judgement
The five-judge constitution bench in Kaushal Kishor v. State of Uttar Pradesh (hereinafter, “Kaushal Kishor”) was inter alia resolving the issue of whether a fundamental right under article 19 or 21 of the Constitution of India can be claimed other than against the State or its instrumentalities. The Supreme Court with a majority of 4:1 (Nagarathna J. dissenting) held that rights under Articles 19 and 21 can be enforced even against private actors. To the contrary, Nagarathna J. concluded that these rights are not justiciable before the constitutional courts but can be claimed as common law rights.
While the majority applied the horizontal approach to the application of fundamental rights, i.e. fundamental rights are justiciable not only against the State but also private parties. The dissenting opinion adopted the vertical approach, wherein an action against violation of fundamental rights can be brought only against the state action. The stance of the majority is a polar extreme of what has been the prevalent approach in the Supreme Court. This judgement unsettles the law on this subject and creates scope for deliberation on the horizontal approach.
What’s the issue About?: Understanding Horizontality
Horizontal application is defined simply as binding private parties to constitutional requirements. In the Indian context as discussed above, it refers to the enforcement of rights against private actors other than the State. Horizontality can be grouped broadly into two categories viz. Direct and Indirect. Both of them can be termed as ways to subject private actors to certain constitutional restraints.
- Direct Horizontality
As a concept, direct horizontality implies that individuals can bring action against the private parties on the touchstone of constitutional rights without interference of other legal frameworks. For instance, the Article 18 of the Constitution abolishes titles, thereby preventing private parties from doing certain actions (accepting titles). In such jurisdictions, the Constitution does not differentiate between private parties and the State when it comes to the justiciability of the rights.
- Indirect Horizontality
Indirect Horizontality can be termed as the middle ground between two polar extremes of verticality and horizontality. This model proposes that although the constitutional rights can be directly enforced against the State, they can nonetheless be enforced to some extent indirectly on private actors as well. The basic premise is that common law regulating private parties cannot violate constitutional guarantees and if it does, the constitutional rights can be enforced against private actors as well.
- The Positive Obligation Model
This model approaches rights and obligations, which is not exactly horizontal but results in similar consequences. This concept proposes that right against State cannot only be violated by an action on part of the State, but also by omission of its duties. It has significant overlap with indirect horizontality. For instance, a clause in a contract which is unconscionable and does not protect the rights of weaker party in contract law may be held in contravention to the constitutional right to equality (indirect horizontality) but at the same time it can be claimed that the State failed in its positive obligation (duty) to ensure the right to equality (positive obligation). Therefore, positive obligations imposed on the State can also lead to situations of indirect horizontality.
In summary, direct horizontality binds individuals; indirect horizontality binds courts in their interpretation of the law; and positive obligations bind state authorities.
The Shift to Horizontality in the Indian Jurisprudence
The definition of the State was crucial to our understanding of enforcement of fundamental rights, and hence going by the original schema of the Part III of the Constitution, which starts with Article 12, thereby defining the State for the purpose of the said part. The term “other authorities” occurring in it was ambiguous in terms of interpretation. This became the central issue of many subsequent judicial pronouncements.
Various criteria such as having a statutory authority, being an instrumentality of the State, performing public functions etc were initially considered to determine whether a body was State or not. The most comprehensive judgement in this regard was the Ajay Hasia case wherein court laid down a comprehensive guide, consisting of criteria such as control of government over share capital, financial assistance, administration, monopoly status etc. But the court has later held that the tests in Ajay Hasia are not an exhaustive list or rigid principles that if a body falls under them, it will be considered a State under Article 12.
The rigidity of the vertical approach in Indian context is best demonstrated in cases such as Zee Telefilms case and Zoroastrian Housing Society case. In the former, the court categorically stated that fundamental right could only be enforced against the State, no writ under Article 32 lies to a non-state actor. Similarly, the latter case dealt with a challenge to a bye law of the housing society that restricted the sale of land to a non-parsi person as being violative of Article 14 and 15 i.e. the right to equality. The court held that as a Cooperative Housing Society was not ‘State’ within the meaning of Article 12, the respondents could not claim violation of fundamental rights against it.
However, within the Part III of the Constitutions, there exist certain rights which would be rendered superfluous if not guaranteed against private actors. For instance, right under Article 15(2) i.e. the right of a citizen not to be discriminated against on the grounds of religion, race, caste, sex, place of birth while accessing shops, public restaurants, hotels etc. the abolition of untouchability under Article 17 prohibition of human trafficking and child labour are certain rights which are enforceable against not only the State, but everyone.
As the State withdrew from trade-related and commercial activities, the focal point of the claims of violation of constitutional rights shifted towards the inability of the State to fulfil its obligations, especially the expansion of right to life starting from matters relating to the environment. In the MC Mehta case, the Supreme Court deemed the State to be holding trusteeship of the resources and casting on it the responsibility to protect them even against infringement by private parties.
This shift could be seen in the matters where violation of one’s fundamental rights was done by a private party and it was directly held responsible without meddling by the State. The case of Bodhisattwa Gautam is an appropriate illustration on this point, wherein the court directed the accused to pay compensation to the rape victim.
Stepping up, the court in response to a PIL, in the case of Vishakha while acknowledging State’s failure to enact law for protection of women from workplace sexual harassment for both public and private employment, laid down comprehensive guidelines for the same.
Thus, initially the court tried to stick to its position of verticality, however this did not prevent it from expanding the scope of State to include a few private bodies such as the ones which perform some public function or simply which by their nature are like the State. However, with the evolution of the concept of the welfare state, especially in environment litigation there was a shift towards horizontality via the positive obligations approach. In later cases like Bodhisattwa, the selective direct horizontality was noticed. Thus, the jurisprudence in India has been a mixed application of theories of positive obligations and horizontality. However, can it be said that this approach altogether needs to be replaced with direct horizontality, bypassing the State in such litigations and maybe opening a floodgate of litigations? This is discussed in the next segment.
Right Where the Flaw Lies: A Critical Analysis of the Kaushal Kishor Judgement
The majority in Kaushal Kishor, mingles the concepts of direct horizontality and positive obligations of the State, giving a Nelson’s eye to the fact that though they lead to similar outcomes, they are different concepts jurisprudentially. For instance, while Vishakha judgement related to the positive obligations of the State, Zee Telefilms dealt with the restrictive meaning of the State so as to exclude BCCI from its ambit (does not support horizontality at all) and IMA case dealt with direct horizontality in terms of Article 15.
Finally, it cites a paragraph from the Puttaswamy decision, which categorically holds that an action for violation by a non-state actor of a fundamental right identical to a common law right will lie in the ordinary court. This essentially goes against its own reasoning. Furthermore, the conclusion asserts that the concept of the ‘State’ has evolved over time due to the expansion of its scope. However, it fails to provide a rationale for why the concept of the ‘State’ should be discarded and why fundamental rights should be extended to include enforcement against non-state actors. Lastly, on the basis of this it reaches the abrupt conclusion that Article 19 and 21 are horizontally applicable.
In the light of this background Kaushal Kishor presents a legal quandary, rather than settling the law. Most of the flaws in the majority’s reasoning and conclusions have been rightly pointed out by Nagarathna, J. in her dissenting opinion.
While dealing with the question on horizontal application of rights enumerated under Articles 19 and 21, Nagarathna, J. created a distinction between common law rights and constitutional rights. She opined that certain constitutional rights like right to life are primordial in nature and stem from natural law, implying that their existence was not dependent on them being recognized as rights in the Constitution. The entire object of elevating certain rights to be fundamental in the Constitution was to make them specifically enforceable against the State and its instrumentalities.
The distinction between the two sets of rights stems from the incidence of duty to respect the right. While for common law the duty is that of citizens or non-state actors, for fundamental rights it is the State and its instrumentalities. Horizontality, therefore, is a feature of common law. The same paragraph of the Puttaswamy judgement, as quoted by the majority is then quoted by her to substantiate the aforesaid distinction which proves her point and is the logical source of her discussion.
The possible difficulties that would result from recognition of horizontality of Articles 19 and 21 are that firstly, although the definition of ‘State’ under Article 12 has been expanded over the years to include private entities performing a public function, it is starkly different from the universal operation of fundamental rights against all persons. Had the intention of the Court in the vast jurisprudence set up by it would be the horizontal application of these rights, this Court would not have indulged in formulating tests to determine the scope of ‘State’, rather it would have been prudent of them to entertain all such claims even against private entities.
Secondly, the Court does not generally exercise its writ jurisdiction in cases where an alternate efficacious remedy is available under common law or statutory law especially against private persons (under Article 226). Thus, even if the horizontal application of rights under Articles 19 and 21 will be recognized, the action would fail on the ground that a corresponding common law remedy was available. Moreover, writ courts do not enter into resolving disputed questions of fact. However, while adjudicating violations by private actors, it is inevitable to deal with questions of fact.
Conclusion
The decision in Kaushal Kishor has raised more questions about horizontal application of fundamental rights than it has answered. It seems to be practically unfeasible and creates judicial uncertainty. While such recognition is benign intended and a significant development but unless a framework is developed to effectively operate it, the decision virtually is rendered infructuous.
Horizontality is a complex issue involving multitudes of dimensions to analyse, and in a situation like in this case where this entire exercise was academic and abstract in nature because the facts from which the case arose did warrant such an inquiry. This decision leaves behind a quagmire, for instance under criminal law defamation is a crime for which a private party can be sued in an ordinary court of law but now defamation can be claimed as a violation of right to life and the same citizen now has the right to approach Supreme Court upon its violation. It has the potential to open the flood gates of frivolous litigation, thereby affecting judicial efficiency. Without a concrete reasoning and appropriate framework of application, as pointed out by some scholars this judgement might slip into judicial desuetude.
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