constitution of IndiaFundamental rights under Article 19 or 21 of the Constitution of India can be also claimed against a Private Person though it is not “State” or its instrumentalities

The Constitutional Bench of Supreme Court in the case of Kaushal Kishor Vs State Of Uttar Pradesh & Ors.  decided on 03.01.2023 held that the jurisprudence which prevailed so far was that the rights enshrined under Article 19 & 21 of the Constitution of India can be claimed only against State or any private body carrying out public responsibility.

VERTICAL OR HORIZONTAL EFFECT

The Court went onto observe that to use the phraseology adopted by the philosophers of Law, the question on hand is as to whether Part III of the Constitution has a “vertical” or  “horizontal” effect.

CONSTITUTION OF COUNTRIES REFERRED

US, Ireland, UK, South Africa, Netherlands, Austria

FINDINGS & OBSERVATIONS

1. The Rights conferred by Article 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are enforceable against non-State actors also.

2. Horizontal effect has been applied vis-à-vis the nature of the right violated and the extent of obligation on the part of the violator.

3. Over the time width of Article 21 had been expended in several areas such as health, environment, transportation, Education, and Prisoner’s life, etc.

4. In the case of Krishnan v/s State of Madras, it was held that 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.

5. The Original Thinking of this Court is 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 the state” to “deep and pervasive control” 84 to the “nature of the duties/functions performed.

CONCLUSION

A fundamental right under Article 19 or Article 21 can be enforced even against persons other than the State or its instrumentalities. (This verdict came with a 4:1 majority.)

AMLEGALS REMARKS

So far, Constitutional Courts have refrained from interfering in the matters of authority even carrying out a public duty, on the ground that private persons cannot be construed to be falling under the ambit of “State”.

Even, in many issues, writs against private banks, private schools, etc were held to be not maintainable.

This verdict has resulted into a pragmatic shift in jurisprudence and has created a new bedrock for safeguarding fundamental rights even against persons other than the State.

– Team AMLEGALS