 Good evening one and all amongst us we have Dr. Charu Mathur. She's already done sessions which have always been insightful and before going live to the session we were discussing as to how Nule will be and as usual with her since she is that equal ease with English as well as Hindi it will be a combination and to understand as to what is the scope of expansion under the article 12 of Fridt jurisdiction in terms of the all-day-down Kaushal Kishore v. State of UP and we all know that there are important judgments which change the dynamism the thought process in the legal journey and even otherwise. Since today's session is slightly late than the normal schedule I will straightaway share the knowledge overview. Thank you Vikas ji so good evening everyone so today I will be discussing a very important case this is a judgment from a constitution bank and it is one judgment which has expanded the scope of article 12. Article 12 as you know that whenever you have any breach of your fundamental rights you have a remedy only against the state this is a consistent position which has been taken by various various judgment of the Supreme Court ranging right from your PD Shamsa Shani and so on and so forth. Now before I start it is very important for us to understand how do matters becomes a constitutional matter why was this matter referred to five judgments so what happened in this case see I always say that whenever you look at anything you have to look it from the social, political, historical aspect of the society we live in so it was the time of elections which were going to held in the state of UP and at that relevant point of our time it was the Samajwadi party which was the governing party in the state of UP so sometime in July 2016 there was a news item that a 13-year-old girl and her mother were gang raped on National Highway 91 which passes through the bourbon share where car was stopped by the criminals who dragged the kid out and her mother and they gang raped her in the street. Now with this thing now with this thing in mind you must have heard about Mr. Azam Khan so Azam Khan was a minister in Akhilesh Yadav's government and he made a statement that this news report which is coming when the elections are coming about a gang rape in the state of UP on a highway they said that it looks like a political conspiracy against the Uttar Pradesh government this was of 2016 and we get the state decision in 2023. Now in August 2016 the victims they approached the Supreme Court they find a repetition before the Supreme Court and they ask for the action against the minister for making such remarks against the incident and they said that in this case they fear that they will not get a fair trial in the state of Uttar Pradesh and it was a request to transfer the case to another state so basic case as you can understand that it was just a fact that there will be no fair investigation because your minister is giving such a statement so they said that transfer our case from state of UP to another state. Now when this matter came before the court so I think it was the bench headed by Justice Deepak Mishra and he said that he will require the assistance of Mr. Fallin Ariman as an amicus and they say that to how to go about it because rule of law is to be sustained and while passing this order and while while engaging him as while engaging him as an amicus the court ordered that we will have to examine it in the larger cons to larger controls of this and they made out of the case under article 19 1A which is which deals with your freedom of speech and expression whether the people individuals right in this case the minister Agam Khan whether as a public office when they are holding a public office can they make such comment on the crimes right and whether such comments of the people who are holding the public office do that create doubt in the minds of the victim about the fair investigation and by the state or you can see that matter came in supreme court so it's simple transfer matter go in on a our fundamental right of speech and expression so in this matter the court it states the investigation it also asked as a part and the government while they reply on the plea of transfer of investigation from state of UP to another state and in this case they appointed Mr. Poli Nariman as the amicus now when this happened jai seki matter and notice hota jojava bd make a little bit more difficult right so I don't find the server or no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no no Constitutional morality, Constitutional trust, good governance. All these things have been taken forward. And there is a principle that is said to be good governance. The no-lands principle has also been talked about. Now, they tried to connect it with the TOT, which is called the Constitutional TOT. And on top of that, Rajin Dhawan, when there was a final argument, he went on the Constitutional TOT and what is to the extent. Now, thereafter, when the matter of Azam Khan took place the next time, the court said to Azam Khan, sorry for it, and you can't blame me. I'm asking for an apology, right? So they said, I'm sorry. So ideally speaking, matters should have ended there. But before the court came forward, he framed questions that what responsibility will a public figure have for a public figure? Now, as the matter increased, after that, Bench Bunny, Chief Justice Deepak Mishra, Justice Khan Bulkarki, and now Chief Justice Justice Chandrachuraki. And after that, his scope went up. And Mr. Nariman said that what should be the civil rights act should be with us. And while going into it, one thing started a discussion that is called horizontal and vertical rights. So horizontal and vertical rights, what are they? We need to understand this. So where the question of horizontal and vertical rights came before the court was whether there exists the horizontal, where there exists the horizontal rights or only vertical rights which are applicable to the fundamental rights. So here before we proceed, it is very important for us to realize what do we mean by the horizontal rights and what do we mean by the vertical rights. Now, one second, I will just read out Article 12 also to you. So Article 12 of the Indian Constitution, what does it say? So Article 12 of the Indian Constitution, it gives you, if there is any law, right? If there is any law which breaches your fundamental rights, then the remedy will lie only against the state or the state's instrumentality. So this is a position which was going for ages which has been right from the inception of our constitution. So earlier it was only against the state. Then over the time it started with RSCB versus Mohanlal. He is straight in his state's instrumentality. Then you want to go into Z-Telecoms. If there is a private organization, but if the public function is discharged, then we can go against it. So these were some of the questions which were before the court. So the most important thing was that you were faced with horizontal or vertical issues. What are the fundamental rights? Will the protection be horizontal or vertical? So for this basis we need to understand what we mean by horizontal or vertical. So in this case, I just want to read out a paragraph from the decision itself. So in this case, when this matter came before the court, they framed five questions. Out of the five questions, our focus today was only on two questions. So the first question which came before the Constitutional Bench was can the freedom of speech and expression be restricted on the grounds outside? Those contained in Article 19-2 of the Constitution. Second question was can the citizen claim right to life and liberty violations under Article 21 of the Constitution against non-state actors like private individuals? So the question we will concentrate on today is can a citizen claim right to life and liberty violation under Article 21 of the Constitution against non-state actors like private individuals? Suppose your dog is barking and you are not able to read my exam. Can I read a writ file against you in the court? Can I ask you to issue a writ of mandamus whether he is my neighbour or a private citizen because he is disturbing my right to life peacefully and it is in violation of Article 21. So till now our thinking was that the rights that we have to exercise are against our own state or state instrumentality and if we are to do a lot of public functions then against them. But it will not lie against a private individual. So if I have a remedy, I have a five to five life or if I want to claim damages I have to go to the civil court. After this judgment, I can go and file a writ and as for this judgment, there can a writ of mandamus can be issued even against a private individual. Now before I take you to the judgment further I will just take you to the question number three which says that does the state have an obligation to protect citizens from violation of their right to life and personal liberty from non-state actors? So in two questions we will cover question two or question three which came to the court. And the fourth question was can statements made by public office deals can be attributed to the government if it is linked to the state affair and can the state be responsible for statement of public office deals which results in the violation of their constitutional right? So ideally if you look at the issue it was that does a minister give such a statement through which I am getting fair investigation or not getting it, it makes a difference and you can transfer that matter. But it has made it so big that the question before the court was that how do you see this whether I can even write against a private individual? So finally this matter was reformed to the 5th constitutional bench and the first 5th constitutional bench was made by Arun Mishra, Indira Banerjee, Vinit Saran, Amar Shah and Ravindra Bhatt. So this bench started listening to the matter and at that time, Azam Khan apologized for it. So one way the matter was over the court wanted him to move forward. After that the court said Mr. Nariman sir should do some questions and after that Mr. Harish Salve would give the money and appointed the court and after that some questions were framed and at that time the union was given to the attorney general KK Vinu Gopal sir. Now when the matter came at that time Arun Mishra said that if you are talking about horizontal and vertical that you are going against the private individual then there are more chances that this will be misused and this will increase the tendency in the supreme court. But nevertheless issues were framed matter was solved and when the matter started hearing so the first question that came in that the court kept that we have to see how much power the ministers enjoy as a minister as a public official what are their fundamental rights can they be curtailed under can they be curtailed and go beyond the provision of article 19 2 of the constitution. So ultimately this matter kept coming till many times and finally when Mr. Adish was busy in the court Arun Mishra's bench said this is about 2020 when he said we will hear it once and then the matter didn't go ahead. Finally when the matter came it had come back in November 2022 and now this matter was before a new bench. So this bench had Justice Abdul Nasi Justice Gowai Justice Bopanna Justice Rama Subramanyam and Justice Nagarathna the decision came on the 3rd of January and in this 4-1 decision came Justice Nagarathna was in dissent and the majority opinion was authored by Justice Rama Subramanyam. So majority and we are just concentrating on question number 2 and 3 so in this case majority had that if you have a fundamental right if you have a fundamental right in French for that if you have a problem with a private individual then you can put a hit in the court now in my opinion this has actually opened the floodgates and file a case against any individual for example if your dog is barking can I just go and tell that please issue a mandamus against my neighbour not to ask his dog not to disturb my peaceful my peaceful existence because it is interfering with my right to life. Now with this there was the question which has come before the court was of horizontal and vertical so as far as the vertical rights are concerned that lies only against the state only the state and state instrumentalities as defined under article 12 of the constitution now thereafter the question says not just vertically but horizontally also these rights exist how do I say that these rights exist as a private citizen I have a right to go and ask that this is an issue which is pending before the court and my fundamental rights are infringed by a private individual and hence you should take an action against that private individual now with this in mind we will go to directly to the question number 2 now as far as your question number 2 is concerned there has been a consistent position of this court that your if there is an infringement of your fundamental right then your remedy will lie only against the your remedy will lie only against the state and its instrumentalities it cannot go beyond that so when this matter came to the court the court said what are the issues before that I will just tell you that the court analysed the scope they said when 191 AIA it went into changes under amendment number 1 as well as under your 16th amendment so in the 16th amendment the court noticed that this matter was important that as long as how to take the oath in the Constitution there was no strict requirement to take it in the that you have to put your allegiance towards the towards the state it is only after the 16th amendment that there has been change in the forms of the oath which are given in the third schedule of the constitution and in today's tariff we take the oath by keeping the allegiance so this has changed after that to the horizontal and vertical effect of the constitution so whenever the constitutional rights they regulate and they impact only the conduct of the government and the government after that is state and its instrumentalities when it is dealing with the private individuals it is called the vertical effect but the constitutional rights impact even the relationship between one on one private citizens it is called horizontal right so this the terms the constitutional philosophers have given so when we talk about everything then we talk about the horizontal or the vertical effect vertical is the right of state and instrumentalities I am an individual person who has some rights some rights are available to every person if this is the state that is handling my rights handling my fundamental rights then I can directly get into the court and I say that your duty is to protect my fundamental rights whereas this is your vertical effect but if a private individual is killing my rights can I go to court under articles 32 or 226 this will be coming under the horizontal effect I hope I am absolutely clear on this now when we come on this so as far as you look at the decision of majority they look and they said that this question our rights again are of state so they analyzed all the provisions of constitution before that they analyzed all the provisions whether from the upcoming jurisdiction now the court said this is the majority opinion which says that article 12 it defines the expression the state to improve the government and the parliament of India government and the legislature of each state and local authorities within the territory of India or under the control of government of India so they said that if you look at our fundamental rights then there are some rights available to any person available so if you look at article 14 if you look at article 21 it is available to every and every other person likewise there are other rights available only to citizens and there are some rights available only to the protected category whether it is children whether it is women or cultural minorities certain rights are available only to them now in this majority what they did instead of analyzing it further instead of analyzing it further they started looking into into the various decisions or existing decisions of the Indian so they started with PD Shamdasani's order five test constitutional bench order judgment which has come in 1952 in this case there was a repetition which was filed under article 32 of the constitution and in this case in this case the court held that there is no express reference up to the state in article 21 of the constitution and but it could suggest that an account that this article was intended to afford protection of life and liberty against violation of private individuals so in this case may PD Shamdasani may on a constitutional bench as this bench interpreted it the court said that article 21 is applicable to everyone it is not available only against against the state it is not only available only against the state or state instrumentality it is available against every other person everybody is right so if you read article 21 what does it say article 21 says that protection of life and liberty no person shall be deprived of his life or liberty except according to procedural established by law so the court interpreted it in this case it does not say that you need a remedy so your remedy is available only against the state so PD Shamdasani interpreted it in the same way that what your court is saying that the thing is already settled that if you want to apply then see it that if your right to light is being violated then you are not only against the state you can go against anybody this is the interpretation of this bench in the same way he went ahead after that he analyzed the matter of Subdev where he read the opinion of KK Matthew and he said that the law in article 13 says that there is no law that takes away the rights and it averages the guarantee by part 3 of the constitution so in that he said the court interpreted until some law is passed some action through the agents or officers of the state that is to be that must be taken and while he was going ahead he made the judgment of Nila Bhati and most importantly he said that the guidelines were also issued even at that point of time if a private individual does harassment of a woman at the workplace even then he will get a remedy this means if a private individual is violating article 21 I can invoke the red jurisdiction with this he analyzed Geeta Hariharan's judgment Geeta Hariharan's judgment was that the RBI circular in that the father of the child was considered as regards to the person and property of a minor son and unmarried daughter and mother was recognized fully after the father so this provision was challenged in Geeta Hariharan's RBI circular and the court said that this is wrong and both are equal so in this way while he was going ahead Mishanka ultimately came so he analyzed the Z telefilms and ultimately in the majority opinion he analyzed only this he said that even till now he says that if in article 21 any right is infringed any private individual who is called a non-state actor in technical language even in that my remedy is against that person and he ultimately he picked up a paragraph as Christian versus state of Madras and he wrote that paragraph he said that we need to brush aside for a moment of petty fogging of the law and forget for the nouns all the learned disputation about this and that and our main must look past the verbiage of the words and penetrate deep into the heart and spirit of the constitution so in this case the court had that what was the original intention of the constitution they said that even if you look at the transformative nature of the constitution there was a transformation from state to authorities to instrumentalities of the state to agency of the government to the monopoly which was enjoyed by the state and deep and perverse control and the nature and duties to be performed so is this basis where they said that there is a transformative constitution which is there there is a transformation which is going between the parties and they said that the fundamental right under article 19 and 21 the majorities held in kosher to show that fundamental right against article 19 and 21 it can be imposed against even a private individual it is not only against our state or its instrumentality so in my opinion this is a case which has actually opened the floodgates it is not necessary to open any gloves it is not giving my peaceful possession it is coming to my land so I can always go and file a writ against that person this is actually a very dangerous precedent because this will explore the documents of the court unlike any other judgment that has done the third question which is related to the court is whether the state is under the duty to affirmatively protect the right of the citizen under article 21 even against the threat to liberty of the citizen by acts or omission of another citizen or private agency so the court said that the question was wrong and the court changed the place of the citizen for the person so when he defined the person so the court said that over the period of a time right to life for the supreme court to spend a lot of time so initially understanding was that life and personal liberty should be done but what is the meaning of life what is the meaning of personal liberty he defined that he was saying what is my livelihood my right to life my right to clean air my right to life my right to living with dignity is my fundamental right right to live in a decent environment particularly everything you can put it under under right to life your right to privacy is your right to life your right not to be disturbed is your fundamental right your right to be forgotten is a fundamental right under 21 your right not to be remembered is a fundamental right and they said that when you talk about right to life it is not mere physical existence much beyond that and it has got multi dimension then after that they discussed what is the meaning of personal liberty what is the meaning of personal liberty there was once when we were talking about personal liberty you were not confined physically like where you were but they said while spending they went to Kharag Singh after that they went to Kharag Singh the minority opinion which actually is now the rule of law which says that it is not merely physical restraint but if there is any portion of any type it will be coming under your personal liberty is being compromised right so then there was this decision that nationalization case where 11 judges they discarded the majority opinion in A.K. Gopalan and they said they adopted K. Subarao's opinion in the in this A.K. Gopalan scale and likewise similarly Kharag Singh and Gobind's case were there which came under your which came under the right to privacy and finally you have the 9 judges decision in Puttaswamy Justice K. Puttaswamy where they said that Article 21 is way beyond is way beyond your mere physical existence so it has got many many dimensions so in this case in this case the court held that as held in Puttaswamy they said that this question is coming which is already decided in Puttaswamy and it says that it is a right which protects the inner sphere of the individual from interference by both state and non-state actors so they said that this question is already answered by the Supreme Court and you do have a remedy against the state in this case now as far as Justice Nagarathna's opinion is concerned first thing I must say that I really like the way she has what do you say she has presented all the information if you read the judgment you will find a lot of tables in this judgment so this is the art of writing the judgments which I really like but even when we prepare our cases or when we do analyze anything even right from our school days we analyze in table tabular form so it is easier to understand and it was done in this judgment in the minority as well as in the majority opinion so this according to me is a welcome change now coming further on this she said that it is not necessary to expand the scope of article 12 you cannot have a remedy against you cannot have remedy against a against the non-state act so she said that whatever remedy is to read the provisions then it provides only the remedy which is available it is only against the state or its instrumentality as held by the various court as held by the various courts in large number of decisions so she also went on to analyze various decisions of the court and as far as the first question was concerned so she answered that she agreed with the first question but as far as the second question is concerned she was of the opinion that right in the common law which is available is similar to the fundamental rights under article 19 and 21 they operate horizontally however your fundamental rights under 19 and 21 do not accept those rights which have been statutorily recognized therefore a fundamental right under 19 or 21 cannot be imposed against a person other than the state or its instrumentalities however you have the right to seek other remedies which is I think is the fair position and I tend to go with the minority of you know this is Nagaratna because as far as my understanding of article 12, 13, 14 the 19, 21 goes that it is united only against the state and its instrumentality and then she also heard that in large number of cases which we see every day that when you read there is a large power a huge power is given to the to the Supreme Court under article 142 to do complete justice between the parties the court has involved that power and it has been doing fairly regularly whenever it needs to be done so whether it is against a private medical quality because I do a lot of medical admission so if for any child's admission you did not ask for a document at that time but for 4 years you let the child read it you cannot take out the child for 5 years even if it is a private medical quality right so under the court article 142 they have given the relief to the parties or in the third question for justice Nagaratna's opinion that the duty is cast upon the state under article 21 is a negative duty that is not to deprive a person of his life and liberty except in accordance with law so she was also of the opinion that state has an affirmative duty to carry out obligations which are cast upon it under the constitutional and statutory laws so the question of this case the opinion that came in was that the opinion was that whatever matters whatever you are doing whatever you are doing in today's date because the law is saying in the constitutional bench the majority opinion is that if you have any grievance under article 21 under the right to life any action whether it is in private individuals you can go and file an appropriate before the before the Supreme Court or I think in my opinion this is expanding widely the jurisdiction of the court I don't think that was the intention of the of the original constitutional drafters I think by doing so we are killing the remedies which are available under the civil and federal law giving primacy to the jurisdiction of the court so this is what my opinion about this court is about this judgment is this is a judgment which could have and this is what even Justice Arun Mishra noticed that if you are going to expand it whether it is applicable to the non-state actors it will open the floodgate we have already seen that matters are being filed when I have 532 relying on Kaushal Kishore that this is a remedy that you are giving to me I have a right against a private individual is violating my rights so I have a remedy against that person so because if there are any questions I will be happy to take them this is from the youtube channel there are no questions probably you are giving a food of thought that as to whether Kaushal Kishore would require a redetermination but be that as it may as on today the Kaushal Kishore holds the field and there will be a large number of maybe Dr. Charu is having a different perspective but lawyers practicing on the original side would be too happy that there is a eukity in their life which they can actually enjoy because they can get a article 226 and article 32 it is the most pdf justice and like a lot of tortious cases also go we have seen where there has been an occupation or there is a road accident etc where it has been invoked and actually it has helped to give succour to the litigants immediately every individual has his own opinion about a particular judgment etc and they say that once minds differ the law also differs on that way and that is how it is generated so thank you Dr. Charu for sharing your knowledge and tomorrow friends you will be understanding the charges by the P.P. from Chennai T.S. Subramaniam so do stay connected with us on chapter 17 of the Court of Criminal Procedure of Humanities