This blog has been authored by Md. Rayyan, a 3rd Year B.A. LL.B. (Hons.) student at TNNLU, Tiruchirappalli.
Recently, the Supreme Court in Kaushal Kishor v. State of Uttar Pradesh (“Kaushal Kishor”), gave a horizontal effect to the enforceability of Articles 19 and 21 of the Constitution by plainly stating that:
“A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”
Kaushal Kishor arose out of two petitions which challenged insensitive and derogatory statements on women made by serving ministers. These two petitions were later clubbed together and five issues for consideration were framed by a constitution bench in 2019. One of these issues dealt with the horizontal application of fundamental rights guaranteed under Articles 19 and 21. Akin to ministers’ statements, the judgement of the Court pronounced on January 3rd, 2023 has raised a number of eyebrows with regard to horizontality.
Horizontality and India – a brief background
Horizontality or horizontal application refers to the act of invoking constitutional norms between private parties instead of conventionally limiting it to the relationship of private parties with the State. In India, generally fundamental rights are enforceable against the State but there can be horizontal application in certain exceptional cases and some horizontal-orientated rights given in the constitution. Some examples of horizontal-orientated rights are Prohibition of discrimination under Article 15 and Prohibition of human trafficking and Forced labour under Article 23.
It is in this context that Kaushal Kishor has declared Article 19 and Article 21 to be horizontally applicable. Some criticisms it has received include irrelevancy of the precedents cited in the case and lacking conceptual clarity in differentiating between different types of horizontality. My criticism of Kaushal Kishor is with respect to two aspects. Firstly, it is wrong in equating common law rights with fundamental rights. Secondly, the precedent it cites is not the majority opinion but instead the concurring opinion of only one judge.
Wrongly equating common law rights with fundamental rights
The Court relied heavily on paragraph 397 of a nine-judge bench in Justice K.S. Puttaswamy [Retd.] v. Union of India [privacy](“Puttaswamy”) to hold that Article 19 and 21 have horizontal application. Strangely, this paragraph does not explicitly state that fundamental rights under Article 19 and 21 have horizontal application. It instead limits horizontal application to common law rights and very directly states that fundamental and constitutional rights only provide remedies against the State, either through legislation or via individuals clothed with powers of the State.
Puttaswamy, however, does state that some rights such as Right to Privacy can be both fundamental rights and common law rights. But goes on to clarify, when there is a violation by State and its instrumentalities, a claim would lie against the enforcement of fundamental rights in constitutional Courts. Whereas, when there is a violation by a non-State actor, the same claim would be a common law action at an ordinary Court. This distinction between fundamental rights and common law rights seemed to be conveniently ignored by the Supreme Court in Kaushal Kishor.
In Kaushal Kishor, the question specifically framed by the Constitution Bench in 2019 was:
“Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?”
The answer provided also explicitly refers to the words “fundamental rights” and not common law rights. By extending horizontal application to fundamental rights guaranteed under Article 19 and 21, the Court has gone against the opinion in Puttaswamy. The very paragraph quoted by the Court in Puttaswamy states that common law rights can be enforced horizontally and fundamental rights are to be enforced against the State or its instrumentalities.
Kaushal Kishor suffers from haziness in differentiating common law rights and fundamental rights. This difference is taken note by B.V. Nagarathna, J. in her dissenting opinion. She aptly differentiates between the enforceability of fundamental rights and common law rights:
“Though the content of the Fundamental Right may be identical under the Constitution with the common law right, it is only the common law right that operates horizontally except when those Fundamental Rights have been transformed into statutory rights under specific enactments or where horizontal operation has been expressly recognised under the Constitution.” (Emphasis added)
Concurring opinion and not Majority opinion cited
Paragraph 397 of Puttaswamy relied upon in Kaushal Kishor is not the majority opinion. Instead, it is the concurring opinion of only one judge, S.A. Bobde J. (as he then was). The majority view on the same could be found in paragraph 272 of the same judgement. It holds the fact that the right to privacy being a common law right does not put any bar on its constitutional recognition as a fundamental right. It does not make any reference to the horizontal application of common law rights let alone fundamental rights, as done in the opinion of Bobde J. quoted in Kaushal Kishor.
Generally, concurring opinions are not considered to be binding, as they do not receive support from the majority. Instead, they only have a persuasive value in the eyes of the Court. In India, there is no settled position on the value of concurring opinion as precedence. In Indian Young Lawyers Association v. State of Kerala, R.F. Nariman J. rejected the lone concurring opinion of Ayyangar, J. since it was a view taken only by one judge. He added that it would not be binding on the Court in the present case and should be tested in a future case.
Further, in Commissioner of Wealth Tax v. Dr. Karan Singh, the lone concurring opinion of Mitter, J. was rejected since it did not deal with an issue considered in the original judgement. The opinion of Bobde, J. relating to the horizontal application of common law rights was not one of the key issues for consideration in Puttaswamy. The main issue dealt whether or not the right to privacy is an intrinsic part of right to life and personal liberty under Article 21. This author feels as though the opinion of Bobde, J. on horizontality should not be considered by the Court since it does not deal with the issues considered in Puttaswamy.
Even in cases where lone concurring views are relied upon, they are done so very explicitly. In Kaushal Kishore, while quoting the lone concurring view of Bobde, J. in Puttaswamy, the phrase “this Court laid down the landscape as follows” is used. This ascribes the view of Bobde, J. to that of the majority, whereas the majority have not dealt with the aspect of horizontality at all. Further, even Bobde, J. in his concluding remarks in Puttaswamy only deals with interference of privacy by the State or its instrumentalities covered under article 12 and does not mention about interference by non-State actors at all:
“428.3. Any interference with privacy by an entity covered by Article 12's description of the “State” must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.” (Emphasis Added)
Concluding Remarks
To sum it up, the majority opinion in Kaushal Kishor has several issues plaguing it. Issues such as irrelevant precedents being cited and the lack of clarity on the different kinds of horizontality were already highlighted. Kaushal Kishor does not differentiate between fundamental rights and common law rights, the latter of which have a horizontal operation whereas the former does not. Kaushal Kishor relies upon Puttaswamy which deals with horizontality of common law rights while answering the question of horizontality of fundamental rights.
Moreover, the paragraph of Puttaswamy relied upon by the Court in Kaushal Kishor is not the majority opinion and instead it is the concurring opinion of a lone judge. The quoted concurring opinion did not even deal with the main issue in Puttaswamy and similar observations were not present in its majority view. Ergo, Kaushal Kishor is based on an improper application of precedent and its reliance on Puttaswamy could be questioned on the basis that it cites a lone concurring opinion.