On January 3, a Supreme Court Constitution Bench comprised of Justices S. Abdul Nazeer, Justices V. Ramasubramanian, B.V. Nagarathna, B.R. Gavai, and A.S. Bopanna rendered a decision that the fundamental rights entrenched 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”.

Justice V. Ramasubramanian, writing for the majority, emphasised how, after A.K. Gopalan v. State of Madras, AIR 1950 SC 27, 'lost its hold,' the Supreme Court has gradually expanded the scope of Article 21 in areas such as health, environment, transportation, education, and prisoners' rights. A.K. Gopalan was a well-known case in which a majority of five judges, while hearing the appeal of a popular Indian communist leader arrested under a preventive detention law, interpreted Article 21 in a narrow and restrictive manner.  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 regard, the Supreme Court judge cited Justice Vivian Bose's famous words in S. Krishnan v. State of Madras, AIR 1951 SC 301 about not putting undue emphasis on petty linguistic specifics and 'penetrating deep into the heart and spirit of the Constitution'. “As Vivian Bose, J., put it in a poetic language in S. Krishnan vs   State of   Madras “Brush aside for a   moment the pettifogging of the law and forget for the nonce all the learned disputations about this and that, and "and" or "or", or "may" and "must". Look past the mere verbiage of the words   and   penetrate   deep   into   the   heart   and   spirit   of   the Constitution.”

As a result, addressing the question of whether a fundamental right under Article 19 or 21 can be asserted against anyone other than the State or its agents. According to Justice Vivian Bose “A fundamental right under Article 19/21 can be enforced even against persons other than

The State or its instrumentalities”

The majority of the five-judge Bench also held that the state had an affirmative duty to protect a person's Article 21 rights against any threat to their personal liberty, even if the threat came from a non-state actor.

Notably, Justice B.V. Nagarathna disagreed with the horizontal application of Articles 19 and 21. While her colleagues on the bench ruled that the rights guaranteed by the aforementioned articles of the Constitution could be enforced against persons other than the state or its agents, Justice Nagarathna emphasised the practical difficulty of allowing such constitutionally enshrined rights to operate against private individuals and entities.

According to Justice Nagarathna, although this court has gradually expanded the scope of Article 12 of the Constitution through its "jurisprudential labour" to ensure that a private entity performing a public duty or function and thus "informing our national life" does not escape the discipline of Part III simply because it is not a "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”.

Justice Nagarathna said, “The rights in the realm of common law which may be similar or identical in their content to the fundamental rights under Articles 19 or 21 operate horizontally. However, the fundamental rights under Articles 19 and 21 may not be justiciable horizontally before the constitutional courts except for those rights which have been statutorily recognised and in accordance with the applicable law. However, they may be the basis for seeking common law remedies.”

“The rights in the realm of common law, which may be similar or identical in their content to the Fundamental Rights under Article 19/21, operate horizontally: However, the fundamental Rights under Articles 19 and 21, may not be justiciable horizontally before the Constitutional Courts except those rights which have been statutorily recognised and in accordance with the applicable law. However, they may be the basis for seeking common law remedies. But a remedy in the form of writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court i.e., by way of Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court.”

In her part dissent, Justice Nagarathna also proposed to hold the government vicariously liable for a statement made by a minister that is traceable to any affairs of the state or for the protection of the government by invoking the principle of collective responsibility, while the other four judges on the Constitution Bench, rejected the contention that vicarious liability could be envisaged in such a situation. Justice Nagarathna, the junior-most judge on the bench, was the lone dissenting voice.

Case Title: Kaushal Kishor v. State of UP 
Citation: WP (Crl) No. 113/2016

Link: https://main.sci.gov.in/supremecourt/2016/27156/27156_2016_3_1501_40744_Judgement_03-Jan-2023.pdf