Supreme Court’s unwanted adventurism by misapplying horizontality: Kaushal Kishor verdict

The reasoning of the 4:1 majority on the Constitution bench for arriving at its decision is filled with errors, elementary mistakes and misinterpretation(s) of existing jurisprudence that has been developed over decades on the complex issue of horizontality.

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The Supreme Court's radical judgment delivered last month in Kaushal Kishor versus State of Uttar Pradesh & Ors. (2022) which ostensibly seems progressive in its approach, is in actuality a tale of misreadings and bad externalising that consists of fundamental errors and glaring selectivity from existing jurisprudence, leaving some vital questions unheeded.

A Constitution bench of the court, in the instant case, deals with the crucial issue pertaining to the enforcement of fundamental rights envisaged under Articles 19 and 21 of the Constitution in a horizontal manner, that is, whether such rights can be claimed against private individuals. Answering the question in the affirmative, the court by a 4:1 majority ruled that, "A fundamental right under Article 19/21 can be enforced even against persons other than the State or instrumentalities."

Hardly a progressive step

Placing reliance on transformative constitutionalism, the decision in Kaushal Kishor seems to be a progressive step forward insofar as the enforcement of fundamental rights against private individuals is concerned. However, the reasoning of the majority for arriving at its decision is filled with errors, elementary mistakes and misinterpretation(s) of existing jurisprudence that has been developed over decades on the complex issue of horizontality.

Also read: Horizontal Effect:  Hope for Migrant Workers

I present a critique of the judgment by building on the existing scholarship on this matter by lawyer and constitutional law scholar Gautam Bhatia and LL.M. student Anujay Shrivastava.

Turning a blind eye to precedent

The decision seems to be a set of confusions as the majority judgment, authored by Justice V. Ramasubramanian on behalf of Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna and himself, failed to back the decision with proper reasoning. It appears to have conveniently rejected the existing jurisprudence and precedents pertaining to contemporary constitutionalism and the applicability of fundamental rights horizontally.

For instance, the court failed to provide any reasoning as to why the dictum of a Constitution bench of the court in P.D. Shamdasani versus Central Bank of India Ltd. (1952) should not be followed as a binding precedent in the instant case. In that case, the court had held that Article 19 is inapplicable against private persons and Article 21 cannot be enforced against non-State entities, as the phrase "except by procedure established by law" excludes its application against non-State entities.

The sole reasoning for not following such precedent can be traced from paragraph 76 of Kaushal Kishor, in which the majority selectively went on to analyse a total of 16 cases to buttress its point pertaining to the expansion of the enforceability of fundamental rights beyond the State and its instrumentalities. However, the decisions relied on by the majority merely depict the applicability of fundamental rights to any entity performing a public function, rather than the logic of majority pertaining to horizontal application of fundamental rights per se.

Apart from P.D. Shamdasani, the majority also turned a blind eye towards another existing precedent of the Supreme Court that runs contrary to the application of fundamental rights horizontally, as highlighted by Justice B.V. Nagarathna in her dissenting opinion — Zoorastrian Cooperative Housing Society Limited versus District Registrar (2005). In this judgment, the Supreme Court held that Article 19(1) cannot be enforced against a housing society via a writ petition as it is not a 'State' under Article 12 of the Constitution.

Further, the majority judgment relies on the court's landmark decision in Justice K.S. Puttaswamy (Retd.) versus Union of India (2017); again, it commits a bizarre mistake (highlighted by Justice Nagarathna in her dissent), as it cited a paragraph from the decision which runs contrary to the decision rendered by the majority itself. In K.S. Puttaswamy, then Justice S.A. Bobde in his opinion explicitly ruled that:

"[F]undamental rights … provide remedy against the violation of a valued interest by the 'state', as an abstract entity, whether through legislation or otherwise, as well as by identifiable public officials, being individuals clothed with the powers of the state." (emphasis supplied)

It clearly notes that common law rights are horizontally applicable, while fundamental rights are vertically applicable. Notably, the majority has cited this paragraph from K.S. Puttaswamy and concluded, without explaining any reasoning to arrive at such a conclusion, in paragraph 78: "A fundamental right under Article 19/21 can be enforced even against persons other than the State or instrumentalities."

Notably, all the decisions that are reproduced by the Supreme Court to highlight the changing aspect of law by highlighting the supposed judicial trend for horizontal applicability of fundamental rights are not relevant to the instant case as they are based in different contexts: some of them involve the aspect of positive obligation and some of them involves an instrumentality of the State. In toto, the premises on which those precedents were based are otiose for arriving at the conclusion in instant case, on which the majority arrived without providing any coherent reasoning for declaring the applicability of fundamental rights horizontally.

There is no denial that certain fundamental rights are horizontally applicable; the Constitution explicitly provides for them as they are primarily in the form of absolute prohibitions pertaining to certain acts (for example, Article 17 — abolition of untouchability). However, the rights under consideration here — Articles 19 and 21 — cannot be applied horizontally as they are different in nature, guaranteed as they are to persons subject to certain restrictions.

With this ruling some unprecedented and cascading effects might come in the future, as the court has now done away with an important requirement pertaining to the infringement of Articles 19 and 21, which is that the infringer needs to adhere to the requirement of Article 12. It could result in flooding of the higher judiciary with writ petitions concerning private disputes for the enforcement of Articles 19 and 21.

Unconstitutional constitutional interpretation

Furthermore, the decision in Kaushal Kishor amounts to an 'unconstitutional constitutional interpretation', a phenomenon understood by Israeli legal academic Yaniv Roznai in his work on "Unconstitutional informal constitutional changes" (UICC), as was observed by Shrivastava. To echo his views in conjunctive reading with the observations made by LL.M. student Anubhav Khamroi, there is no denial that Kaushal Kishor manifests UICC and runs contrary to the very scheme of the Constitution of India. It does not fall under the ambit of transformative constitutionalism, but qualifies as constitutional dismemberment.

The dissent of Justice Nagarathna hits the bull's eye on almost every point as to why the horizontal applicability of Articles 19 and 21 is problematic and against the very scheme of the Constitution. She has aptly pointed out in her dissent as to why there exists a demarcation between common law rights and fundamental/constitutional rights, and that alternate efficacious remedies exist in common law which ultimately makes the horizontal application of Articles 19 and 21 via writ jurisdiction futile and otiose, specifically as Indian constitutional law requires that alternative remedies be exhausted before approaching a constitutional court under its writ jurisdiction.

The majority also conveniently failed to take into consideration the decisions of coordinate benches, as highlighted above. If the bench thought that decisions rendered previously by the court are not good law, there is a procedure for countenancing it by way of distinguishing/bypassing such decisions on facts, or such decision could have been overruled by a larger bench, but the majority does none of this. As correctly noted by Bhatia, the position that accrues from this judgment is that "this is both everything and nothing".

Undoubtedly, the interpretation rendered by the majority decision pertaining to the enforceability of Articles 19 and 21 to extend their application horizontally against non-State actors/private parties or individuals runs contrary to the scheme of the Constitution.

What is the way forward?

The majority in Kaushal Kishor posits an unfettered direct application of rights horizontally against non-State actors without even providing any reasoning for doing so, and by getting incorrect facets from foreign jurisdictions and existing law therein (paragraph 31).

The judgment has created an unwanted conundrum relating to horizontality, which is one of the most complex and complicated issues pertaining to contemporary constitutionalism. The implications of this decision need to be thought through more practically in the coming time, as the court would have to deal with the concrete realities stemming from the decision. However, at this juncture, without an iota of doubt it can be concluded that the decision has left the jurisprudence on horizontality in doldrums, as it departs from existing precedents and muddies the jurisprudence without reaching any conclusive point.

It is difficult for one to understand the rationale of the majority. It has voyaged into uncharted waters by deviating from the existing principles without any cogent reasoning. It is hoped that in the near future, the Supreme Court corrects its mistake, and turns its eye towards the dissenting judgment to assent with the constitutional scheme and find the majority judgment incapable of application to undo the UICC.