Supreme Court on Tuesday, during an important discussion said that the fundamental rights enshrined in Articles 19 and 21 are enforceable even against persons other than the state or its instrumentalities.“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’.
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.
In her part dissent, Justice Nagarathna also proposed to hold the government vicariously liable for a statement made by a minister that is traceable to any affairs of the state or for the protection of the government by invoking the principle of collective responsibility, while the other four judges on the Constitution Bench, rejected the contention that vicarious liability could be envisaged in such a situation. Justice Nagarathna, the junior-most judge on the bench, was the lone dissenting voice.
