The Indian Constitution under Part III provides various fundamental rights which are sacrosanct and cardinal principles to achieve the core objectives of liberty, equality and dignity envisaged under the Indian Constitution. The rights under Part III create a corresponding obligation upon the State to ensure that the fundamental rights are not violated.
In order to protect the fundamental rights of individuals, the constitutional courts in India have increasingly expanded the scope of enforcement of fundamental rights (See R.D. Shetty v. International Airport Authority, (1979) 3 SCC 489). Earlier, the enforcement of fundamental rights was only provided against a breach by actions of the State. The concept of State was later enlarged to embrace various instrumentalities of the State as well. By virtue of this extension, corporations which had governmental control or which discharged functions of public importance came under the purview of State agencies or instrumentalities. Consequentially, fundamental rights were also made applicable to actions of such State instrumentalities.
Recently, the Hon’ble Supreme Court of India in Kaushal Kishor v. State of Uttar Pradesh & Ors. (Kaushal Kishor) has yet again increased the scope of enforcement of fundamental rights by making the right of freedom of speech and expression under Article 19(1)(a), and right to life and personal liberty under Article 21 of the Indian Constitution directly enforceable against private actors including individuals and corporations.
In this article, we discuss the findings in Kaushal Kishor in the above context and give our thoughts on its implications on private entities.
Horizontal and vertical application
With the evolution of the concept of ‘State’, the centre of political hegemony came to be confined in the State and the State became capable of exercising unbridled power against the individual. In order to negate such a situation, the architects of the Indian Constitution provided for fundamental rights under Part III of the Indian Constitution (See Justice K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1). The objective behind including fundamental rights under the Indian Constitution was to ensure that certain basic rights of the citizens or persons (as the case may be) are not taken away by the State. This was necessary to preserve the ideals of democracy in the backdrop of imbalance of power in the State-individual dichotomy. The constitutional courts have, therefore, stressed on limiting the capacity of the State to interfere with the rights of individuals.
Accordingly, most of the fundamental rights were included as protective mechanisms against oppressive behaviour by the State and its instrumentalities against private parties. Such fundamental rights regulate and affect only the conduct of the State and State actors in their dealings with private individuals by laying down a direct mandate on the State. For instance, Article 14 of the Indian Constitution stipulates a direct mandate on the State to provide to every person equality before law. Similarly, Article 21A mandates the State to provide free and compulsory education to all children of the age of six to fourteen years. Where the constitutional rights govern the relationship between the State and non-State actors, they have a vertical effect.
In contrast to this, when the constitutional rights affect the inter-se relationship between non-State actors, they have a horizontal effect. Article 15(2) of the Indian Constitution which prohibits discrimination against access to shops, public restaurants, hotels and places of public entertainment is an example of a constitutional right having a direct horizontal effect by governing conduct of private parties vis-à-vis other private parties.
Article 19 and 21 and reasonable restrictions
Article 19(1)(a) of the Indian Constitution provides to all citizens the freedom of speech and expression, which may be restricted by a law made by the State on the extremely limited grounds of threat to sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The constitutional courts have held that any restrictions on free speech and expression on such grounds must pass the test of ‘reasonability’ (See Maneka Gandhi v. Union of India and Ors., (1978) 1 SCC 248).
Article 21 of the Indian Constitution has two distinct aspects, right to life and right of personal liberty. It provides wide protection against encroachment of physical restrictions of movement as well as psychological restrictions which impede a person’s liberty. The aspect of personal liberty encompasses the right to health, clean environment, and right to basic necessities of life (See Francis Coralie Mullin v The Administrator, Union Territory of Delhi, (1981) 1 SCC 608; Vellore Citizens Welfare Forum v. Union of India (UOI) and Ors., (1996) 5 SCC 647). The constitutional courts have held that restrictions on personal liberty of an individual must be in accordance with the procedure established by law keeping in mind the standard of reasonable restrictions. The courts have cautioned that the test of reasonableness cannot be arbitrary but is rooted in the extremely high standard of public interest considering the underlying objective of achieving a welfare state. Hence, traditionally both Articles 19(1) and 21 have a vertical application as they regulate the conduct of State by prohibiting the State from making arbitrary laws.
Are private parties obligated to protect fundamental rights under Article 19 and /or Article 21?
The traditional understanding of vertical applicability of Articles 19(1) and 21 has now been turned on its head by the majority opinion in Kaushal Kishor. The majority view expressed by Hon’ble Justice V. Ramasubramanian has referred to a catena of judgments to conclude that, on a case-to-case basis, fundamental rights under Article 19 and /or Article 21 are enforceable against private parties.
The minority opinion in Kaushal Kishor delivered by Hon’ble Justice B.V. Nagarathna provides a dissenting view and holds that Articles 19 and 21 are not enforceable before constitutional courts, if they pertain to inter-se relationship between non-State actors. The minority opinion provides some compelling reasons for restricting Articles 19 and 21 between private actors, such as:
1. Precedents: An analysis of judgments of the constitutional courts in India reveals that the intention of the courts has always been to regulate State conduct while implementing fundamental rights. The concept of ‘State’ may have been widened but the applicability of fundamental rights still remained contingent on the characterization of an institution within that increased concept of ‘State’. Therefore, determination of what constitutes ‘State’ has been regarded indispensable for the application of fundamental rights.
In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, while commenting on the concept of State with respect to fundamental rights, the Supreme Court noted that the objective of fundamental rights is to govern State action. The Supreme Court acknowledged that certain fundamental rights under the Indian Constitution such as abolition of untouchability and access to public places, can be enforced against private parties also, but the general rule is that fundamental rights can only be enforced against the State.
In the same vein, in Zoroastrian Co-operative Housing Society Limited and Ors. v. District Registrar Co-operative Societies (Urban) and Ors., (2005) 5 SCC 632, the Supreme Court considered the question of whether bye laws of a private co-operative society restricting the right of membership only to persons from the Parsi community can be challenged on the grounds of violation of fundamental rights. The Supreme Court recognized the contractual nature of a co-operative society and its bye laws. It noted that a co-operative society is a form of voluntary association where individuals unite for mutual benefit. It further noted that the formation of a co-operative society is based out of a contract and the members of a co-operative society set out the terms of membership in the form of bye-laws, which is also a contract. In view of this, the Supreme Court refused to subject contractual arrangements between individuals to the standards imposed for fundamental rights, and held that a co-operative society is governed by a statute and any interventions in its governance would be made by the statute itself. It is not for the constitutional courts to intervene and provide for terms of contract between individuals on the ground of fundamental rights.
2. Alternate and efficacious remedy: Constitutional courts enforce fundamental rights by way of writ jurisdiction. However, courts have held that writ jurisdiction is not ordinarily available to an aggrieved person if an effective alternative remedy is available (See CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603; Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir and Ors, (2022) 5 SCC 345).
As held by the Supreme Court in Justice K. S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1, the fundamental rights are not the sole repository of the principles enshrined within those rights. These principles relate to higher values of mankind and are treated as natural rights which are available to all human beings. Therefore, even in the absence of fundamental rights, the natural rights continue to govern the common law and private relations in a civilized society. The common law and fundamental rights may overlap with each other since they emanate from the same principles of natural law.
Importantly, protection against violation of such rights by the State or its agents is provided under the fundamental rights and can be sought in constitutional courts by way of writs. Whereas, violation of a common law right by a private party can be remedied in ordinary courts of law. The courts have hence taken a view that disputes between private parties which involve questions of natural law or horizontal application of fundamental rights can be remedied through a statute or under common law.
Our thoughts
The Hon’ble Supreme Court in Kaushal Kishor has made private relationships subject to fundamental rights under Article 19 and Article 21. This implies that all non-State actors are liable to protect fundamental rights provided under Article 19 and / or Article 21. However, this does not correspond to the long line of precedents developed by the Supreme Court. Application of writ jurisdiction on private parties has been consistently subjected to the test of whether the private body performs a public function. The decision of Zee Telefilms v. UOI, (2005) 4 SCC 649 (Zee Telefilms), which was cited with approval in the majority opinion to stress that “violator of a constitutional right could not go scotfree merely because it is not a State”, was dealing with a private body which was found to be discharging public functions.
The courts have gone further ahead to clarify that merely performing public functions does not render all actions of a private body subject to writ jurisdiction. There must be an element of public law involved for the enforcement of writs on private parties, and where there is another branch of law applicable, the disputes between private parties will be governed by that branch of law (See Ramakrishna Mission & Ors v. Kago Kunya and Ors, (2019) 16 SCC 303; VST Industries Ltd. v. VST Industries Workers’ Union, (2001) 1 SCC 298).
An obvious conundrum arising out of the interpretation taken in Kaushal Kishor would be that until now, private employees terminated from their employment were only entitled to receive damages under the law of contract (See Sirsi Municipality v. Cecelia Kom Francis Tellis, (1973) 1 SCC 409). On account of the Kaushal Kishore judgment, the right to livelihood, which is a part of Article 21, will now be enforceable against private employers as well. Ergo, matters of private employment including termination can now be subjected to remedies under writ jurisdiction of constitutional courts. It also raises various other questions such as whether confidentiality obligations imposed by private companies on their employees have to comply with the strict standard of reasonable restrictions, and public interest under Articles 19 and 21. Will private entities have the constitutional obligation to provide health facilities or reimbursement for treatment as is required to be provided by the State under Article 21 (See State of Punjab & Ors. v. Mohinder Singh Chawala & Ors., (1997) 2 SCC 83).
Unfortunately, the majority opinion has not dealt with these questions, or with the reason for departure with the settled position of law. As stated earlier, certain basic human rights such as the right to life are elevated to the standard of fundamental rights because of the exceptional capacity of the State or its instrumentalities to interfere with such rights. Some of those human rights also have a separate simultaneous existence under common or private law, such as discrimination against individuals on the basis of caste. To that end, private parties are protected against actions of other private parties under statutes. Wherever there is lack of adequate private law remedy, the constitutional courts in India have granted reliefs in specific cases by evolving the domestic law. For instance, the Supreme Court developed a framework for protection of women from sexual harassment at workplace after recognizing that a lack of adequate law was affecting the right to life of women. (See Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241). Therefore, the objective sought to be achieved by imposing fundamental rights on private parties without specific delineation or boundaries is unclear.
There is also a lack of clarity on how parties can enforce such an obligation against a third party. In the event of an alternate and efficacious remedy being available, there is a good possibility that the petition will fail. Further, there is a possibility that the courts will have to look into disputed questions of facts in such a petition and in such a situation, a writ court is unlikely to exercise its jurisdiction to decide the dispute (See Shubhas Jain v. Rajeshwari Shivam and Ors., Civil Appeal No. 2848 of 2021). Given the practical implications of the judgment in Kaushal Kishor, issues regarding the implementation of the judgment may warrant further discussions in the future.
Authors: Souvik Ganguly, Renjith Nair and Shrishti Mishra
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