Guest Post: Who Killed Article 12? – Horizontal Rights and the Judgment in Kaushal Kishor

[This is a guest post by Ishika Garg and Abinand Lagisetti.]


On 3rd January 2023, a Constitution Bench of the Supreme Court delivered its judgement in the case of Kaushal Kishor v. The State of Uttar Pradesh. One of the questions before the Court was whether fundamental rights under Articles 19 and 21 of the Constitution can be claimed against parties other than the ‘State’ or its ‘instrumentalities. Essentially, the question revolved around the extent of and the limitations within Article 12 of the Constitution. Surprisingly, the majority in this case went on to hold that:

A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.

Talk about starting the year with a bang! The implication of this holding is that the rights under Article 19 and 21 are henceforth to be considered horizontal in nature, and would thus be available against private individuals. This begs the question of whether the decades-long jurisprudence that the courts have developed in delineating the scope of the ‘State’ under Article 12 was all in vain. In this post, the authors shall first attempt to unpack the line of reasoning followed by the majority in arriving at its conclusion. Thereafter, the post shall outline the approach that the Bench should have instead adopted when deciding the question under reference before it. Lastly, the authors shall analyse the potential impact that this judgement shall have on future cases involving a similar question of law, and demonstrate how the same is undesirable.

Deconstructing the Majority: A Search for Reason

The majority begins with a rather unnecessary reproduction of the jurisprudence on horizontal and vertical application of fundamental rights in different jurisdictions. Unfortunately, the only role this reproduction seems to have served is that of a page-filling exercise. Regardless, two limbs of reasoning that enabled the majority’s conclusions can be culled out. At the first level, the majority argues that over a period of time, there has been a jurisprudential shift in India in favour of the horizontal application of all rights under Part III. This is evident from the following extract from the judgement:

To begin with, this Court was weary of extending the enforcement of fundamental rights against private individuals. But this reluctance changed over a period of time.

At this juncture, it becomes important to clarify that the problem that this post seeks to address is not of horizontal rights in general. Rather, the issue arises when we try to horizontally apply Articles 19 and 21 in specific. Indeed, there can be no doubt that some fundamental rights, such as the right against untouchability, can be and have been, horizontally applied. However, the very language of Articles 19 and 21 exclude such an application. This is clear from the dictum in the case of P.D. Shamdasani v. Central Bank of India. In that case, the Court held that the phrase “except by procedure established by law” in Article 21 necessarily excludes its vertical application. Similarly, it noted that the language and structure of Article 19 was intended to only cover cases involving some form of state action.

While acknowledging this thread of reasoning, the majority proceeds to discuss judgments, which it believes portray an inclination towards the horizontal application of these fundamental rights. Of all the cases that the majority has discussed, only two cases could be construed to lend support to its conclusion: Bodhisattwa Gautam and MC Mehta. All the other cases directly involve a state entity or an entity undertaking a public function akin to that of a state or involve a right other than those under Articles 19 and 21. Even the aforementioned two cases have been erroneously relied upon by the majority. This is for the reason that the relief awarded in each of these cases was not linked in any way to the status of the violator of the fundamental rights in question (private or public), but was in fact connected either to a statutory remedy to that effect or to a remedy in tort. For instance, in MC Mehta, the remedy finally awarded to the petitioners against a private body was so done by virtue of the existence of the well-established environmental law principle of ‘polluter pays’. Likewise, in Bodhisattwa Gautam, the compensation awarded was a result of an existing remedy by way of a Central Government scheme.

The second level of reasoning employed by the majority is dependent upon its interpretation of the applicable test under Article 12. As per them, the test has transitioned in the following manner:

…. 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”.

Through this excerpt, the majority seems to suggest that the test under Article 12 has been watered down by judicial decisions over the years. However, nothing could be farther from the reality. Post the decision in Ajay Hasia, requirements for a body to qualify as a ‘State’ under Article 12 have come to be crystallised in cases such as PK Biswas (as shall be discussed later). Resultantly, the test under Article 12 has only become stricter. Regardless, this excerpt serves as the majority’s recognition of the existence and relevance of a test under Article 12, whatever may be the standard. However, the final conclusion reached in this case stands in opposition to this acknowledgement. If fundamental rights are indeed enforceable against all private entities, then there would be no point in looking to Article 12 to see if the entity qualifies for such enforcement in the first place. In simple terms, the conclusion that the majority reaches not only presupposes the existence of no test but also invisibilizes Article 12 as a whole. Crucially, there is a clear absence of any reasoning to justify such a logical jump from the existence of some test to the existence of no test.

The Road Not Taken: A Constitutionally Compliant Alternative

Despite acknowledging the existence of a test under Article 12, the majority fails to meaningfully engage with it. It is this gap that provides a space to outline an alternative approach which the Court could have instead adopted. The authors propose that there is a two-fold procedure that the majority should have looked at in response to the question under reference before it. First, any question of enforcement of rights under Article 19 and 21 against any individual or entity should necessarily be answered through an enquiry into whether the individual or entity falls within the scope of Article 12. In establishing this, perhaps the most widely used test would be that established in the case of PK Biswas. While the elements of this test have been recounted in great detail on this blog earlier, the essence of it can be captured through the following question: Whether the body is financially, functionally and administratively dominated by or under the control of the Government? If this question is answered in the affirmative, then the body shall fall within the scope of Article 12. Even if the answer is in the negative, there is yet another level of scrutiny that may be conducted. This brings us to the second prong of our procedure.

While a body which does not pass the PK Biswas test would not be open to claims under Article 32 of the Constitution, the route of Article 226 continues to remain open. Article 226 vests in the High Court the power to issue orders and writs to “any person or authority” for the “enforcement of any of the rights conferred by Part III, and for other purposes.” The logical implication is that it is possible to hold a non-State body accountable for a substantive Part III violation even without invoking Article 32. An example of such an application is found in the case of Zee Telefilms. In that case, the status of BCCI under Article 12 was in question. Although BCCI was held not to be a ‘State’ within the meaning of Article 12, the Court held that the aggrieved party could nonetheless seek redressal through Article 226, given that BCCI discharged functions of significant public importance. Additionally, the Court supported the Article 226 route in that case because the BCCI was discharging such functions exclusively. Thus, as has been previously pointed out by a post on this blog, to avail of the option under Article 226, the aggrieved party must consider: first, the nature of the function being performed by the violator; and second, whether the violator is performing such function exclusively. In light of such precedent, the Court in the present case should have evolved the following method of enquiry instead of jumping the gun:

  1. To check whether the body against whom fundamental rights under Articles 19 and 21 are sought to be enforced falls within the scope of Article 12;
  2. To check if the body in question can be made amenable to writ jurisdiction under Article 226 by virtue of it fulfilling the two prerequisites of nature and exclusivity of its functions, if the first question is answered in the negative.

However, in the present case, there seem to have been no attempts on part of the majority to even consider, let alone establish, such layers of enquiry. Instead, the court directly moves on to the surprising expansion of Article 19 and 21 rights against all private bodies. Even if one turns a Nelson’s eye to such ignorance for a moment, a more foundational issue remains to be addressed. As Justice Nagarathna points out in her dissenting opinion, before the invoking the writ jurisdiction of a court, a preliminary enquiry into the existence of any alternative statutory or common law remedies must be embarked upon. This idea stems from the principle that if an effective remedy is found to exist that can adequately tackle the rights violation in question, then writ jurisdiction cannot be invoked. Given this limitation, an additional level of enquiry inevitably comes to precede the two-step procedure outlined above. This level would essentially look at whether any statutory remedies already exist in relation to the act for which a violation of fundamental rights is being claimed in the first place. Simply put, only in the vacuum of any such remedies should the Court get into the two stages of enquiry relating to the status/function of the body against whom the rights violation is claimed.

Through the Looking Glass: An Eye to the Future

As until now, all claims involving infringements of Articles 19 and 21 required the infringer to meet the requirements of Article 12. The immediate impact of doing away with such a condition would be the countless private disputes that would now flood the writ courts. In addition to overburdening the writ courts, such private disputes would also now require the writ courts to adjudicate upon disputed questions of fact. This would be a stark departure from the well-established practice of writ courts not entertaining such questions. Notwithstanding this, let us for a moment, pause and consider what rationale the Court might have had in reaching the overbearing conclusion that it did.

In the authors’ opinion, the Court’s attempt has been to spread its net wide to entrap those entities which violate fundamental rights of individuals but fail to meet the requirements of Article 12. One class of such entities would be social media giants. While such a rationale might have a plausible logical goal, it would undermine the existing legal framework as shall be demonstrated below. The ongoing Facebook-WhatsApp litigation before the Supreme Court serves as a reminder of the same.

The case involves a challenge to the data sharing agreement between Facebook and WhatsApp on the ground that it violated the users’ right to privacy and freedom of speech. The question that arises is whether such rights can be enforced against such non-state actors. While the majority opinion answers this question in the positive, an application of the aforementioned two-fold test reaches the opposite conclusion. First, neither Facebook nor WhatsApp, being independent private actors, are financially, administratively and functionally under the control of the Government. Given that they do not meet the requirements of Article 12, we shall now proceed to the second level of enquiry. What must be considered is whether the nature of the functions and the exclusivity of the functions render the platforms amenable to writ jurisdiction under Article 226. The nature of the functions discharged by both Facebook and WhatsApp i.e., expression and communication, are undeniably of significant importance to the public. However, the provision of such service, by no means, is the exclusive domain of just Facebook and WhatsApp. Multiple other actors such as Twitter and Telegram flood the field. Thus, neither Article 32 nor Article 226 provide a viable recourse against these entities.

Importantly, what the majority fails to consider is that the inapplicability of Part III remedies does not exhaust common law remedies that still continue to be available to aggrieved parties. As recognised by Justice Nagarathna in her dissent, there exists a concurrent remedy under common law that can be brought against non-state actors. For instance, as observed by the Court in Puttaswamy, the contents of the right to privacy under Part III and under common law are identical. The only difference being that, in cases involving non-state entities such as Facebook and WhatsApp, an action for the violation of such a right would now lie before an ordinary court. Alas, these nuances too have received no engagement from the majority, setting a dangerous precedent for the future.

Interestingly, no other jurisdiction in the world allows for such unbounded direct horizontal application of rights against non-state actors. Even jurisdictions that constitutionally recognise the horizontal application of rights, do so with certain limitations. For instance, Article 20 of the Kenyan Constitution allows for both direct and indirect horizontality. However, as highlighted by Brian Sang in his work, subsequent judicial developments such as Isaac Ngugi have made this horizontality contingent on the nature of the right and the circumstances of the case in question. Similarly, Article 8(2) of the South African Constitution expressly qualifies the direct horizontal application of rights on the basis of the nature of the right and the corresponding duty imposed by it. The basis for the Indian Court’s misadventure into uncharted territory thus remains a mystery.

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