SUPREME COURT RULING ON ARTICLE 19 AMBIT
The Supreme Court of India recently made a significant ruling in a case involving the fundamental right to freedom of speech. In a 4-1 majority decision, the Constitution Bench of the court stated that an individual can seek enforcement of this right not only against the government, but also against other citizens. This ruling expands the grounds for seeking protection of these rights.
Contents
• Article 19 and the Right to Free Speech
• Enforcing Rights against Private Entities
• Reference to Previous Court Rulings
• International Perspectives on Fundamental Rights
Article 19 and the Right to Free Speech
Article 19 of the Constitution of India guarantees the right to freedom of speech and expression, and is typically invoked against the state. Some fundamental rights, such as those prohibiting untouchability, trafficking, and bonded labor, are explicitly against both the state and other individuals. The recent Supreme Court ruling extends the right to free speech to include protection against private citizens.
Enforcing Rights against Private Entities
This interpretation brings an obligation on the state to ensure that private entities also abide by Constitutional norms. It opens up a range of possibilities in Constitutional law, potentially allowing for the enforcement of privacy rights against a private doctor or the right to free speech against a private social media entity.
Reference to Previous Court Rulings
The Court referenced the 2017 verdict in Puttaswamy, in which a nine-judge bench unanimously upheld privacy as a fundamental right. The government had argued that privacy is a right enforceable against other citizens and, therefore, cannot be elevated to the status of a fundamental right against the state.
International Perspectives on Fundamental Rights
The Court also looked to foreign jurisdictions, contrasting the American approach with the European Courts. The US Supreme Court’s ruling in New York Times vs. Sullivan, which found that defamation law as applied by the state against The New York Times was inconsistent with the Constitutional guarantee of freedom of speech and expression, was cited as an example of a shift in US law from a “purely vertical approach” to a “horizontal approach.”
A vertical application of rights means they can only be enforced against the state, while a horizontal approach means they are enforceable against other citizens. For example, a horizontal application of the right to life would enable a citizen to bring a case against a private entity for causing pollution, which would be a violation of the right to a clean environment.
TRIVIA:
“A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”, the majority judgment held.
Justice V. Ramasubramanian, writing the majority judgement on behalf of himself, and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna, highlighted how after A.K. Gopalan v. State of Madras, AIR 1950 SC 27 ‘lost its hold’, the top court has over time expanded the width of Article 21 in several areas such as health, environment, transportation, education, and rights of prisoners. A.K. Gopalan was a famous case in which a majority of five judges, while hearing the plea of a popular Indian communist leader who had been arrested under a preventive detention law, placed a narrow and restrictive meaning on Article 21. Justice Ramasubramanian wrote, “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 Nagarathna dissents
Notably, Justice B.V. Nagarathna took a different stand with respect to the horizontal application of Articles 19 and 21. While her colleagues on the bench held that the rights guaranteed by the said articles of the Constitution could be enforced even against persons other than the state or its instrumentalities, Justice Nagarathna highlighted the practical difficulty of permitting such constitutionally consecrated rights to operate against private individuals and entities.
– “Kaushal Kishor v. State of UP | WP (Crl.) No. 113/2016”