Kaushal Kishor, Horizontal Rights, and Free Speech: Glaring Conceptual Errors

There is an old adage that if you want to arrive at the right answers, you have to first ask the right questions. The Supreme Court’s judgment judgment earlier this month in Kaushal Kishor vs Union of India reflects another truth: that if you want to arrive at answers that mean anything at all, your questions have to first make sense.

Ostensibly, this judgment of a Constitution Bench of the Court deals with crucial constitutional issues around the limits to freedom of speech and expression, and the horizontal application of fundamental rights. If this was the only information you had about Kaushal Kishor, you would imagine that the case arose out of a factual matrix where perhaps an institutionally powerful non-State actor violated an individual’s constitutional rights – a case such as Tomlinson vs Television Jamaica (Jamaican Court of Appeal), for instance, or Khumalo vs Holomisa (South African Constitutional Court). In these cases, the judiciaries of their respective countries developed the law on horizontality and free speech because the disputes before them raised questions about horizontality and free speech.

What was the dispute in Kaushal Kishor vs Union of India? To understand this, you will first have to go back to August 2016 – the halcyon days of Chief Justice Dipak Misra’s Court – when the SC admitted a petition seeking action against a UP government minister, who had claimed that a gangrape in Bulandsahr was a “political controversy.” The Court framed four “questions” for resolution, which – as I pointed out at the time – were vague to the point of being incoherent. The government minister in question then apologised to the Supreme Court. The matter ought to have rested here, except that in October 2017, the case – now without a lis – was referred to a Constitution Bench of the Supreme Court, i.e., a five-judge bench that is constituted only when a “substantial question of law” with respect to the interpretation of the Constitution has arisen. During this time, the Court had also anointed Messrs. Fali Nariman and Harish Salve, and the genesis of what finally became the judgment in Kaushal Kishor can be traced back to one of the “questions” submitted to the Court by Mr. Nariman, namely, whether obligations under Article 21 would apply to non-State parties.

The matter was then buried for a couple of years, as often happens at the Supreme Court, until its sudden resurrection in mid-2019. At this point, the following five questions were framed by the Constitution Bench:

1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

As I had written at the time, while questions (4) and (5) had some tenuous connection to the original dispute, the first three questions were simply general excursions into constitutional philosophy (see “A Very Strange Constitution Bench“, October 27, 2019). I had also warned that this kind of judicial buccaneering never ends well, because these questions are simply too complex, too multi-layered, and too poly-centric to admit of resolution in the abstract: judiciaries all over the world have spent decades developing the law on these issues, incrementally, and in response to the concrete disputes that are brought before them. Shortly after, in a guest post, Anubhav Khamroi pointed out that the first question had already been decided by a coordinate bench in Sahara vs SEBI, thus making Kaushal Kishor not only an academic exercise on this point, but an unnecessary academic exercise too boot.

The matter once again lay buried for three years, until it was pulled out a second time during CJI Lalit’s tenure, assigned to a bench, and then heard and decided. The Court split 4-1, with Nagarathna J in partial dissent. Some of the conclusions in Kaushal Kishor have already been critiqued on this blog (see “Who Killed Article 12?“). This piece sets out a few additional arguments.

Horizontality

Before looking at the Court’s analysis, it is important to get a few concepts straight. When we look at the application of constitutional principles to private, non-State parties, there are four different approaches, which must be kept conceptually distinct (for an explanation, see “Horizontality: A Schema” on this blog, and the present author’s PhD thesis. These are as follows:

1. The State Action doctrine refers to an approach where you ask whether a private party sufficiently resembles the State, for its actions to be attributable to the State. Different tests are used in different countries: the doctrine itself originated in the US, is applied in various jurisdictions such as South Africa, and in India, it takes the form of the extensive case law on the interpretation of Article 12 of the Constitution (see the blog series “What is the State?“, from 2014)
2. Positive obligations refers to an approach where rights are deemed not only to have negative content – i.e., requiring the State to refrain from doing something – but also, positive content – i.e., requiring the State to act affirmatively to protect your rights. On some occasions, positive obligations arise in the context of State omission in cases where certain private parties are violating the rights of others. The classic example here is Vishaka.
3. Indirect horizontality refers to an approach where private law is subjected to constitutional scrutiny, and is interpreted or modified accordingly. For example, in the famous New York Times vs Sullivan, the US Supreme Court modified the common law of defamation to bring it in line with the constitutional guarantee of free speech.
4. Direct horizontality refers to an approach where private conduct is subjected to constitutional scrutiny. For example, Article 15(2) proscribes discrimination by any person against any other person, in certain specified contexts.

Kaushal Kishor commits an elementary mistake by repeatedly bunching these concepts together. This is evident in its opening discussion of US law from paragraphs 50 to 54), where it conflates The Civil Rights Case (state action), New York Times vs Sullivan (indirect horizontality), and Shelley vs Kraemer (state action, with the judiciary deemed to be state). It is evident in its consideration of Irish constitutional law (paragraph 55), where it mixes up positive obligations with horizontality. The majority states that Irish constitutional law is on “the opposite end of the spectrum” from US constitutional law on the question or horizontality. This is fundamentally incorrect: Irish constitutional law has developed a restrictive account of horizontality under the constitutional tort doctrine (more on that anon). A few paragraphs later, the majority cites the Irish Supreme Court case of Meskell to hold that under Irish constitutional law, “full horizontal effect” has been given to rights such as freedom of association, freedom from discrimination and the right to livelihood (paragraph 57). This is also incorrect: it is, in fact, a criticism of Irish constitutional law that its horizontal rights doctrine is narrow and limited (see, e.g., Banda). The majority’s discussion of South African constitutional law then conflates horizontality under the Constitution with horizontality under statute (paragraph 61), and its awareness of South African jurisprudence on horizontality appears to end at 2011 (for reference, the most recent South African judgments on horizontality, which significantly developed the law, were handed down in 2021) (paragraph 64). Even its analysis of the law it does seem to be aware of is ill-considered: the majority states that the South African Constitutional Court in Juma Masjid took horizontal effect to “an extreme”: if anything, the decision in Juma Masjid is a fundamentally conservative one, that firmly places horizontal rights subordinate to vertical rights against the State. And then we finally have the UK and the ECHR (paragraphs 66 – 70), where every example the Court takes is grounded in positive obligations, and not horizontality.

Now, nobody was forcing the majority in Kaushal Kishor to undertake a global, comparative analysis of horizontality. However, if the majority elected to do that, then it bore a minimum obligation to (a) get the concepts right, (b) get the law right, and (c) provide an up-to-date picture of the law. The Kaushal Kishor majority manages to fail all three requirements.

The majority then comes to Indian law, where once again the same set of confusions is rife. In paragraph 76, the majority claims that it is going to examine a set of cases that extended the application of fundamental rights to non-state parties. It then indiscriminately summarises sixteen cases, some of which were about positive obligations (e.g. Vishaka vs State of Rajasthan), some of which were about the meaning of “State” (Zee Telefilms), some of which were about direct horizontality (IMA vs Union of India), and some of which are utterly irrelevant to the question altogether (the RTE judgment). Having slashed and burned its way through thus jurisprudential forest, the majority then notes “that all the above decisions show that on a case-to-case basis, this  Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator.” (paragraph 77) Of course, the decisions cited do nothing of the sort. The majority then bizarrely cites a passage in Puttaswamy that goes against its own position (something picked up on by Nagarathna J in her dissent), as it notes that common law rights are horizontally applicable, while fundamental (constitutional) rights are vertically applicable. The majority says that Puttaswamy has answered a “part of the question” (it does not explain how), and then triumphantly concludes, in paragraph 78:

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

Like the title of the famous Borges’ short story, this is both everything and nothing. The Court’s “declaration” that Articles 19 and 21 apply horizontally is meaningless and incoherent without further clarity. It should be immediately clear that not every violation of Articles 19 and 21 (or, for that matter, other constitutional provisions) can yield a constitutional remedy through writ proceedings (a point that is hammered home by Nagarathna J). To take a basic example, if referee Mike Riley takes a bribe to award a wrongful penalty to Manchester United against Arsenal, the remedy is to proceed against him under criminal law, and not under the constitutional guarantee against manifestly arbitrary treatment. Similarly, if X enters into a contract with Y and then refuses to pay Y for services rendered, you proceed against X under contract law, not for breaching your right to livelihood under Article 21. “Unbounded” direct horizontality is an obvious non-starter, because it will turn all of existing private law into constitutional adjudication, creating havoc both in substance and in procedure. It is precisely for this reason that Courts elsewhere – whether it is Ireland, or South Africa, or Kenya, or even the United States – have developed doctrine incrementally, and arising out of concrete cases, and not as abstract philosophical exercises. And it is precisely for this reason that the majority ought to have refrained from answering this question in the abstract.

There is, however, a second – and more conceptual – problem with the majority’s approach (again, noted by Nagrathna J in her dissent). If you take up Part III of the Constitution, you will immediately see that where the Constitution intends for a fundamental right to apply horizontally, it explicitly provides so (Articles 15(2), 17, 23, and 24). This is structurally different from, for example, the South African Constitution, where Section 8(2) states: “a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right” (see also, Article 20, Constitution of Kenya). Unlike the South African Constitution, therefore, where any provision of the Bill of Rights can potentially apply horizontally (subject to doctrinally-placed constraints, which is how the South African law on horizontality has developed), the Indian Constitution has specific carve-outs for domains where rights apply horizontally. Presumptively, therefore, for other rights, there is no horizontal application available. Now, the majority does not even engage with this argument, let alone deal with it. It provides no reasoning whatsoever to explain why it is departing from the obvious result of an eyeball test of Part III’s text and structure; and the judgments that it relies upon – as pointed out above – do not support the proposition that it advances.

All this is unpardonably shoddy.

Miscellany

There is little profit in dwelling upon other parts of the judgment, although a few brief points may be made. The third question involves a literal restatement of existing law, which the Court does (the answer is “yes”, going back at least to Vishaka). The fourth question is a basic, first-principles articulation of the simple point that a minister does not always speak for the government. Conceptual confusion returns in the fifth question, where the majority confuses torts by government actors with constitutional tort, and embarks on a thoroughly irrelevant excursion into tort law. As Nagarathna J correctly points out in her opinion, the reason why it is called constitutional tort is because it incorporates the concept of damages/compensation from tort law; a constitutional tort involves the breach of constitutional rights by State actors where compensation is an appropriate remedy (even here, there is some degree of conflation, as constitutional tort in Ireland means something else), not a common law “tort” committed by a State actor.

And finally, there is confusion even in the majority’s consideration of Article 19(2). The majority once again seems to conflate two conceptually distinct points. The first point is that the Court – obviously – cannot engraft fresh exceptions to the right to free speech, beyond the eight sub-clauses already present in Article 19(2). This the Court (correctly) affirms in paragraph 29. The second point is that there will inevitably be occasions where rights under Part III will clash, and the Court will have to balance clashing rights through a principled and doctrinally sound approach. Ostensibly while analysing this second point, the majority cites a series of cases where the courts have done precisely this – sought to balance the claims of two competing rights (e.g., free speech and privacy). Noting that “tools” exist to do so, the majority then comes right back, in its conclusion, to the statement that “under the guise of  invoking other fundamental rights or under the guise of  two fundamental rights staking a competing claim against  each other, additional restrictions not found in Article  19(2), cannot be imposed on the exercise of the right  conferred by Article 19(1)(a).” But what does this mean? When I argue for restricting your right to free speech because it is impinging on my privacy, I am invoking privacy (not found in Article 19(2)) to restrict the scope of your right to free speech. Also, where does this leave judgements such as the 2016 criminal defamation verdict, which explicitly invoked reputation as a ground to justify criminal defamation as a limitation upon free speech? Once again, there is no engagement with these thorny issues in the majority’s judgment; in the dissent, at the very least, there is, although Nagarathna J.’s conclusion that certain kinds of speech are outside the ambit of Article 19(1)(a) altogether is, itself, a somewhat perilous idea, as it involves assessing the comparative worth of forms of expression, without adequate thought for the structure of Article 19(1)(a) or the consequences that follow.

Conclusion

Kaushal Kishor is a salutary lesson in judicial restraint when it comes to dealing with abstract philosophy instead of a concrete lis. Horizontality is one of the most complex and complicated issues in contemporary constitutionalism, involving a multitude of overlapping questions about the nature of the State, institutional power asymmetries, public and private law, forms of remedies, and so on. These questions can only be considered in the concrete, in a situation where a rights-bearer and a rights-violator are before the Court, and the issue of horizontal rights applicability assumes tangible form. Without that, as we have seen, there is confusion, and what is worse, a muddying of previously (relatively) clear waters. One can only hope, with Kaushal Kishor, that when future courts look at the majority, they find it simply incapable of application, and that with the passage of time, the judgment slips into judicial desuetude.