New Delhi: A constitution bench of the Supreme Court has said that the fundamental rights in Article 19 and 21 of the constitution are enforceable even against other persons, and not just the state and its instruments.
A bench of Justice V. Ramasubramanian, who authored the judgment, and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna, held that the government had the responsibility of protecting citizens from both the state and non-state actors when it came to Article 21. Justice B.V. Nagarathna dissented.
The majority judges noted that the apex court has expanded Article 21 to include health, environment and the rights of prisoners among others, according to LiveLaw.
The bench cited A.K. Gopalan v. State of Madras, a case where the apex court while hearing a petition against the preventive detention of the communist leader, said that under Article 21, which protects life and personal liberty, no court needs to apply a due process of law standard.
“The original thinking 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 state’ to ‘deep and pervasive control’ to the ‘nature of the duties/functions performed’,” Justice Ramasubramanian is quoted by LiveLaw as having said.
The judge quoted key judgments to impress that “petty linguistic details” need not be paid undue importance to. It noted that in the landmark judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India which upheld the right to privacy, individuals were protected against interference by the state and non-state actors as well.
LiveLaw reports that Justice Nagarathna, in her dissent judgment, highlighted the “practical difficulty of permitting such constitutionally consecrated rights to operate against private individuals and entities.”
Such horizontal application of fundamental rights under Articles 19 and 21 could be permitted “only if the elementary differences between a fundamental right and the congruent common law right, the incidence of duty to respect each of such forms of rights, and the forum which would be called upon to adjudicate on the failure to respect each of such rights were ignored,” she said.
A private body in its private capacity cannot be “axiomatically amenable to the claims of fundamental rights violations,” she said.
In such cases, writ courts which do not deal with fundamental rights would also have to deal with disputes that concern such questions, she stressed.