Fundamental right can be enforced against individuals
A fundamental right, under Article 19/21 of the Constitution, can be enforced even against persons other than the State or its instrumentalities. This is what the Supreme Court (SC) says in a 4:1 majority judgment in Kaushal Kishor v State of UP. Justice B V Nagarathna, the sole dissenting judge, issued a dissenting judgement.
Facts on this case
In this case some rash and intemperate remarks by two ministers, one while serving in the Uttar Pradesh Cabinet and another in Kerala, were considered by the SC to examine whether some restrictions need to be imposed.
In the main case Azam Khan, a minister for the urban development in Uttar Pradesh, while addressing the public described the gangrape incident of a young girl and her mother as a ‘political conspiracy and nothing else.’ He criticised one of the victims when she complained about not getting justice and stated that the victim had surely got the publicity that she needed. He went on talking about how the victims will face the world if they go around spreading the details of this incident. The husband and father of the two gangrape survivors filed a petition of their plea seeking a probe by the Central Bureau of Investigation and that the trials should be held outside the State of Uttar Pradesh as Azam Khan’s Statement spoiled the chance of a fair hearing in that State.
The SC referred the matter to a Constitutional Bench and the bench delivered its judgement now.
Main issues involved in this case
- Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution.
- Can a Fundamental Right under Article 19 (that is freedom of speech and expression) and Article 21 (that is right to life and Personal Liberty) of the Constitution, can be claimed against anyone other than the ‘State’ or its instrumentalities.
- Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the constitution even if it is against a threat to the liberty of the citizen by the acts or omissions of another citizen or private agency.
- Whether the Statement of a minister, traceable to any affairs of the State, should be attributed vicariously to the government itself for not keeping in mind the principle of collective responsibility.
- Whether a Statement made by a minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution (that is Fundamental Rights), constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong).
Constitutional bench judgement
In the Constitutional Bench judgement in this case, the SC found that reasonable restrictions in Article 19(2) are “exhaustive” and nothing further can be added.
The court also examined and concluded that a statement of the minister makes no vicarious liability on the part of the state, even though there is collective responsibility of ministers.
Similarly, the SC concluded that a mere statement by a minister that goes against an individual’s fundamental rights may not usually be actionable, but becomes actionable if it results in actual harm or loss.
One key issue that the SC considered was whether a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities.
Writs provided by the Constitution
The Constitution of India provides five kinds of writs which are Habeas Corpus, Mandamus, Quo Warranto, Certiorari, and Prohibition.
Under Article 32, a writ petition can be filed in the Supreme Court when Fundamental Right of any citizen has been violated. Similarly, under Article 226, a writ petition can be filed in the High Court against such violation.
The SC has over time been expanding the breadth and width of Article 21 in several spheres such as health, environment, transportation, education, and rights of prisoners.
The writs that cannot be issued against a private person
Normally the fundamental rights are executable against the State but in some cases, they may even be executable against the individual.
However, the following writs cannot normally be executed against a non-state entity.
The Writ of Prohibition is not maintainable against a private entity because this writ is used only against a judicial and a quasi-judicial body.
The Writ of Certiorari is used for judicially reviewing the lower court order. Therfore, there is no question of use of such a writ against a private body.
The Writ of Quo Warranto is not maintainable against a private body because it questions the authority of the person who is holding a public post.
In the issuance of mandamus against a private body, which performs a public duty on behalf of the government, such a body will be considered as a State entity within the meaning of Article 12 of the Constitution.
Writ of Habeas Corpus could be issued against the private body.
The SC, in many cases such as Army School v Smt. Shilipi Paul held that the writ petition, except the writ of habeas corpus, is not maintainable against a private body.
In Dr Anand Gupta v Rajghat Education Centre And Ors the SC held that a writ petition can only be issued against a public authority but the writ of habeas corpus can be issued against a private body, as well.
In the case of Dushyant Somal v Sushma Shomal, the SC issued a writ of habeas corpus against a parent who kept the child with him illegally as per the order of the lower court the custody of the child was provided to the child’s mother.
Article 21 interpreted restrictively since AK Gopalan case
It was in A.K. Gopalan v The State of Madras, a majority of five judges, while hearing the plea of A K Gopalan who had been arrested under a preventive detention law, made a narrow and restrictive interpretation of Article 21.
The initial thinking that these rights can be enforced only against the state, has 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.
Puttaswamy case was a forerunner of a new thinking
The judgement in this case relies on 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’.
It was on the strength of such a prescription, the SC in this case ( Kaushal Kishor v State of UP), proceeded to answer the legal issue whether a fundamental right under Articles 19 or 21 could be claimed against entities, other than the State or its instrumentalities, in the affirmative.
The SC adds that the answer to such a question is partly there in the nine-Judge Bench decision in in Justice K.S. Puttaswamy (Retd.) v Union of India [ (2019) 1 SCC 1] in which the right to privacy was recognised as a right and the right protected the inner sphere of the individuals from interference by both the state and non-state actors.
State to protect citizen’s right against non-state actor
In tune with the K.S. Puttaswamy judgement, the SC holds that the state was under a duty to affirmatively protect the rights of a person, under Article 21 of the Constitution, against any threat to their personal liberty, even if such a threat originated from a non-state actor.
