Case Name: Kaushal Kishore vs State of Uttar Pradesh & Ors.
Court: The Hon'ble Supreme Court of India (‘Supreme Court')
Observation: Fundamental rights under Article 19 and 21 of the Constitution of India can be enforced even against persons other than the State or its instrumentalities
Judgment date: January 3, 2023
Act/Law: Article 19 and 21 of the Constitution of India. Article 19 protects rights regarding freedom of speech etc., and Article 21 protects life and personal liberty.
Prior to this judgement being reported, the common understanding was that the constitutional rights can only be enforced against the Government and its functionaries (called the State and its instrumentalities, in the judgement). The Supreme Court, keeping in mind the dynamic nature of law and society, arrived at inter alia the following questions to reassess the possibility of enforcement of the constitutional rights against the private persons, i.e., against the entities other than the Government and its functionaries:
- Whether a fundamental right under Articles 19 or 21 of the Constitution of India be enforced against entities/persons other than the State or its instrumentalities?
The Supreme Court held that:
“A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.”
The Supreme Court supported the above observation with the following reasons:
“Articles where without injuncting the State, certain rights are recognized to be inherent, either in the citizens of the country or in persons”. “For instance, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against non-State actors also. The owner of a shop, public restaurant, hotel or place of entertainment, though a non-State actor cannot deny access to a citizen of India on grounds only of religion, race etc., in view of Article 15(2)(a). So is the case with wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public, in view of Article 15(2)(b). The right not to be enforced with any disability arising out of untouchability is available against non-State actors under Article 17”.
- 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?
The Supreme Court continuing in its pragmatic approach towards the issues being considered in the judgement further stated that:
“The State is under a duty to affirmatively protect the rights of a person under Article 21,whenever there is a threat to personal liberty, even by a non-State actor.”
- Whether 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?
The Supreme Court taking a progressive approach observed that the fundamental rights enshrined in the Constitution can only hold meaning if the said rights are respected, not just by the State and its instrumentalities, but by individuals against other individuals. It is only when the rights are enforceable at the individual level that there can be true peace and tranquillity for the citizens. In the words of the Supreme Court:
“The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. 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) upon any individual.”
“Under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed in Article 19(2), cannot be imposed upon the exercise of one's fundamental right”.
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