Scroll Top


In a recent ruling in Kaushal Kishor v. The State of Uttar Pradesh, the Supreme Court’s Constitution bench stated that “the rights granted to an individual under articles 19 and 21 of the constitution


In a recent ruling in Kaushal Kishor v. The State of Uttar Pradesh, the Supreme Court’s Constitution bench stated that “the rights granted to an individual under articles 19 and 21 of the constitution can be invoked against parties other than the ‘State’ or its ‘instrumentalities’ (as mentioned in article 12 of the constitution).” The majority in the case gave the reasoning that over a period of time, India’s jurisprudential landscape has shifted from the reluctance in the application of fundamental rights against private individuals towards the horizontal application of all the fundamental rights guaranteed to the people under the constitution.

The court used a number of cases to illustrate the tendency for the horizontal application of basic rights in order to substantiate its position. The most prominent ones were the cases of Bodhisattwa Gautam and MC Mehta. However, it has to be seen that even in these cases the relief given to the parties was not connected to the violator of the fundamental right (whether it was private or public in nature) rather it was connected to provisions under a statute or a remedy available in tort law.

The reasoning given by the court holds true for some of the rights, such as the right against untouchability guaranteed to individuals under article 17 of the constitution. However, it does not hold true for the rights guaranteed to people under articles 19 and 21 of the constitution.

The Supreme court’s ruling, in this case, is significant to consider because it directly contradicts the dictum given by the court in the case of P.D. Shamdasani v. Central Bank of India, where it was held that the language and structure of articles 19 and 21 clearly show that these rights can cover cases only if there was some state action and a state or its instrumentalities were involved in the case.

The majority’s second line of argumentation hinged on how article 12 of the constitution was construed. The majority’s view of article 12 demonstrates how over time, numerous court rulings have weakened the standard used to gauge the efficiency of article 12. This line of thinking, however, runs counter to the reality that since the Ajay Hasia case ruling, the test under article 12 has become harsher and the criteria for an entity to be considered a “State” under article 12 have become explicit.


A two-fold procedure needs to be applied when dealing with questions related to the enforcement of articles 19 and 21 of the constitution. Firstly, the question of enforcement of articles 19 and 21 should be answered through a test (especially the one given in the case of PK Biswas) which determines whether the entity is covered within the scope of the term ‘State’ (as mentioned in article 12 of the constitution).

Secondly, even if the entity is not covered under article 12 of the constitution, it would still be able to assert claims under article 226 of the constitution if not under article 32. “The High Court has the ability to issue writs and orders to any person or authority for the enforcement of rights upheld by Part III of the Constitution as well as for other purposes.” states article 226. This suggests that a non-state organization may be held liable for violating rights protected by part III of the constitution. In the case of Zee Telefilms, it was held, “the aggrieved party must take into account two things before seeking the remedy provided by Article 226: first, the nature of the functions being performed by the offender; and second, whether the violator is performing such function exclusively.”

In light of the precedent set in the Zee Telefilms case, the court in the present case should have first inquired whether article 12 covers within itself the body against whom fundamental rights under Articles 19 and 21 are sought to be enforced and if the answer to the first question proves to be negative then it should have inquired if the writ jurisdiction under Article 226 can be invoked by virtue of the entity fulfilling the two prerequisites of nature and exclusivity of its functions. However, in the present case, the majority made no attempts to consider the two-pronged test set by the precedents, rather it proceeded directly to the expansion of articles 19 and 21.


The decision given in the present case can have various consequences on the private disputes which exist in society. Until now, all cases regarding the infringements of Articles 19 and 21 of the constitution required that the violator of the rights must meet the requirements of article 12 of the constitution. However, with the precedent set in the present case, this requirement would be done away with which will lead to the flooding of the writ courts with private disputes. Additionally, it will change the established practice of the writ courts, which is to not consider disputed questions of fact, and force them to rule on them.

The court in the present case has attempted to widen the scope of articles 19 and 21 to include the entities which violate the fundamental rights of an individual and does not fall within the scope of article 12. For instance, in the case of the Facebook-Whatsapp litigation regarding the data sharing agreement, both Facebook nor WhatsApp can neither be tried under articles 19 and 21 for violating the right to privacy as they do not fall within the scope of article 12 nor they cannot be tried under article 226 as they are not exclusive entities in the field of providing communication services. Though expanding the scope of articles 19 and 21 to encompass these entities might seem plausible and logical, it vitiates or undermines the existing legal framework.

Furthermore, the court disregards the fact that the aggrieved parties may pursue a variety of common law remedies if they are unsuccessful in seeking redress under Part III of the constitution. For instance, it was established in the Puttaswamy case that the common law and section III of the constitution have the same definitions of the right to privacy. As a result, organizations that are not covered under article 12 can nevertheless be prosecuted under common law for breaching a person’s fundamental rights.

Thus, the court’s decision to extend the reach of Articles 19 and 21 to cover private entities not only breaches the existing legal system but also presumes that there is no test under Article 12 and renders Article 12 ineffective as a whole.

Author(s) Name: Aniket Yadav (National Law University, Delhi)