On January 3, the Supreme Court enlarged the scope of Articles 19 and 21 by holding that these fundamental rights would be available not just against the government but also against private parties.
These articles guarantee the fundamental rights of speech, assembly, movement, unionisation, residence, trade and life.
The judgement assumes importance because fundamental rights are traditionally enforced against governments, authorities that are controlled by the government or those that perform a governmental function. Legal experts believe that this judgement has the potential to open doors for expanded actions to be brought against private parties as well. However, its possible impact will only be seen in upcoming cases.
What has the court said?
The court was deciding on whether any additional restrictions can be put on the right to free speech of public officials. In 2016, Azam Khan, then a cabinet minister in Uttar Pradesh, had said that an alleged gang rape of a woman and her daughter was a “political conspiracy”. Subsequently, the woman filed a case, fearing that his remarks will hamper the investigation.
The Constitution bench was deciding on various questions related to the enforceability of fundamental rights and the responsibility of a government for statements of its ministers. One of these questions was whether Articles 19 and 21 can only be applied against governmental actors or against private entities as well.
The court held that the application of fundamental rights, in instances such as the right to life, has expanded “in several areas such as health, environment, transportation, education and prisoner’s life”.
It concluded, given the changing nature of the role of the government, that rights under Articles 19 and 21 “can be enforced even against persons other than the State or its instrumentalities”.
Horizontal vs vertical
There are some rights enforceable only “vertically”, meaning against the “state”: the government and similar authorities. For instance, if the government passes a law taking away someone’s right to free speech, then a citizen can file a case against the government for taking away her fundamental right.
However, if a private party, such as an employer, restricts a person from saying something, then an employee cannot claim that her fundamental right to speech is being restricted.
On the other hand, certain fundamental rights are “horizontal”: enforceable against private individuals as well. Such as the fundamental right against untouchability, the right to access public utilities – such as shops, public restaurants, hotels and roads – regardless of a person’s religion, caste or sex.
Having a fundamental right remedy, as opposed to filing a civil case, has several benefits. Parties can approach a High Court or Supreme Court directly. These cases are listed faster than ordinary civil cases and are cost-effective as well, involving negligible court fees. Further, it also opens the possibility of getting a remedy without there being an explicit provision in law.
In the past, courts have expanded the application of certain rights against private parties as well. For instance, in cases related to the environment, courts have levied fines on private actors for polluting the environment and affecting a person’s right to life under Article 21.
The January 3 judgement solidifies this line of reasoning. “[This case] is among the first to categorically say that a right – especially under Article 19 - can be enforced against non-state actors as well,” said advocate Thulasi Raj, one of the lawyers involved in this case.
Shift in jurisprudence
Oftentimes, companies such as Twitter or Google, which wield tremendous influence have the ability to restrict someone’s speech. In those cases, a person would have limited remedies against them as opposed to if a similar action was undertaken by the government. This case may open up possibilities of bringing a fundamental rights violation claim against them.
According to senior advocate Kaleeswaram Raj, who worked on this case, “The constitutional courts will have to seriously take note of the horizontal application of fundamental rights under Articles 19 and 21 henceforth, even when the fundamental right violation is at the instance of a non-state actor.”
The case could also put additional obligations on the government to ensure that private parties do not take away any fundamental rights.
Tarunabh Khaitan, professor of public law and legal theory at the Faculty of Law at Oxford University explained how this would work. “Suppose, you work at a multinational company, such as Twitter, and as an employee you discover some massive illegal activity, such as corruption, and you become a whistleblower – passing the relevant information to a journalist,” he said.
In that case, he added, if such information sharing goes against your employment contract and there is no law to protect this whistleblowing, then the employee could potentially claim that their freedom of expression is being violated by the company’s legal action for breach of contract.
Giving another possible impact of this judgement, Thulasi Raj said, “If a journalist is prevented from speaking by a private actor, the journalist can file a writ saying the state is not protecting my Article 19(1)(a) right [to free speech].”
However, she added that the “conclusion of the bench are quite theoretical” and therefore, it will become clear with future cases how the courts choose to apply this.
Possible impact
While this case has theoretically expanded how citizens can invoke their fundamental rights, experts differ on how much this will impact cases.
“The judgment has tremendous potential to create a radical shift in the judicial attitude in the case of horizontal violation of the fundamental rights,” said senior advocate Raj.
According to Shameek Sen, associate professor teaching constitutional law at the West Bengal National University of Juridical Sciences, Kolkata, “The court has [only] created a structure. Now that this is created next time the court wants to apply rights under Articles 19 and 21 horizontally, the court does not have to reinvent the wheel.”
However, he believed this judgement would not make a huge difference in ordinary court cases. “If each individual action can be elevated to the scale of a fundamental rights’ violation, it can open floodgates of litigations, so courts will be circumspect,” he added.
‘Vague’
Further, Anuj Bhuwania, professor at Jindal Global Law School, Sonipat, said that this judgement was vague and could lead to confusion. “When there is a fundamental right against everyone and everything, there is a right against nobody,” he said. “On one hand, while courts seem progressive while expanding the application of fundamental rights, they are forgetting to do the absolute basics on the other.”
He continued, “The court does not strike down repressive statutes or does not punish violation of rights by the state, such as illegal detentions in Kashmir.” According to him, the use of this case might lead to unpredictable results in politically charged situations.
For instance, it could potentially be used to shut down critical speech by claiming it infringes a person’s right to life.
Professor Khaitan also believed that the judgment is not entirely clear and therefore, its impact was hard to assess, ‘The judgement, mercifully, does not say that these rights are enforceable against ‘all’ private persons. It says that it can be enforced against persons other than the state or its instrumentalities.”
But it leaves unclear which non-state persons would now count as being responsible under Articles 19 and 21. “We will have to wait and see how courts process the precise scope of duty-bearers in future cases,” he said.