‘individual vs. society’.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION

WRIT PETITION (CRIMINAL) NO. 113 OF 2016

KAUSHAL KISHOR                                             … PETITIONER(S)

VERSUS

STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION @ (DIARY) NO. 34629 OF 2017

J U D G M E N T

V. RAMASUBRAMANIAN, J.

3. Thereafter,   the   Constitution   Bench,   by   an   order   dated

24.10.2019, formulated the following five questions to be decided by

this Court:­

“…1)   Are   the   grounds   specified   in   Article   19(2)   in

relation to which reasonable restrictions on the right

to free speech can be imposed by law, exhaustive, or

can restrictions on the right to free speech be imposed

on grounds not found in Article 19(2) by invoking other

fundamental rights? 

2) Can a fundamental right under Article 19 or 21 of

the Constitution of India be claimed other than against

the ‘State’ or its instrumentalities? 

3) Whether the State is under a duty to affirmatively

protect the rights of a citizen under Article 21 of the

Constitution   of   India   even   against   a   threat   to   the

liberty of a citizen by the acts or omissions of another

citizen or private agency? 

4) Can a statement made by a Minister, traceable to

any affairs of State or for protecting the Government,

be   attributed   vicariously   to   the   Government   itself,

especially   in   view   of   the   principle   of   Collective

Responsibility? 

5) Whether a statement  by a  Minister, inconsistent

with the rights of a citizen under Part Three of the

Constitution,   constitutes   a   violation   of   such

constitutional   rights   and   is   actionable   as

‘Constitutional Tort”? …”

.....

  46. The   second   question   referred   to   us   is   as   to   whether   a

fundamental right under Article 19 or 21 can be claimed against

anyone other than the State or its instrumentalities. Actually, the

question is not about “claim” but about “enforceability”.

47. To use the phraseology adopted by the philosophers of Law,

the   question   on   hand   is   as   to   whether   Part   III   of   the

Constitution has  a  “vertical”  or  “horizontal”  effect.  Wherever

Constitutional rights regulate and impact only the conduct of the

Government and Governmental actors, in their dealings with private

individuals, they are said to have “a vertical effect”. But wherever

Constitutional   rights   impact   even   the   relations   between   private

individuals, they are said to have “a horizontal effect”.

48. In   his   scholarly   article,   “The   ‘Horizontal   Effect’   of

Constitutional Rights”, published in Michigan Law Review (Volume

2. Issue 3, 2003) Stephen Gardbaum, states that the horizontal

position has been adopted to varying degrees in Ireland, Canada,

Germany,   South   Africa   and   European   Union.   According   to   the

70

learned author, this issue has also been the topic of sustained

debate   in   the   United   Kingdom   following   the   enactment   of   the

Human Rights Act of 199855

.

49. No jurisdiction in the world appears to be adopting, at least as

on date, a purely vertical approach or a wholly horizontal approach.

A   vertical   approach   provides   weightage   to   individual   autonomy,

choice and privacy, while the horizontal approach seeks to imbibe

Constitutional values in all individuals. These approaches which

appear   to   be   bipolar   opposites,   raise   the   age­old   question   of

‘individual vs. society’.

...

72. Part­III of the Indian Constitution begins with Article 12 which defines the expression “the State” to include the Government and the Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 73. After defining the expression “the State” in Article 12 and after declaring   all   laws   inconsistent   with   or   in   derogation   of   the fundamental   rights   to   be   void   under   Article   13,   Part­III   of   the Constitution proceeds to deal with rights. There are some Articles in   Part­III   where   the  mandate   is   directly   to   the   State   and there  are  other  Articles  where  without   injuncting  the  State, certain   rights   are   recognized   to   be   inherent,   either   in   the citizens of the country or in persons. In fact, there are two sets of dichotomies that are apparent in the Articles contained in Part 90 III. One set of dichotomy is between (i) what is directed against the State; and  (ii)  what is spelt out as inhering in every individual without reference to the State. The other dichotomy is between (i)  citizens; and  (ii)  persons. This can be illustrated easily in the form of a table as follows: Sl. Nos. Provisions   containing   a mandate to the State Provisions   declaring the   rights   of   the individuals   without reference   to   “the State” on whom the right is conferred 1. Article 14 mandates the State not   to   deny   to   any   person equality   before   law   or   the equal   protection   of   the   laws within the territory of India. ­ Any person 2. Article   15(1)   mandates   the State   not   to   discriminate against   any   citizen   on grounds only of religion, race, caste,   sex,   place   of   birth   or any of them. ­ Any citizen 3. ­ Article 15(2) mandates that   no   citizen   shall be   subject   to   any disability,   liability, restriction   or condition, with regard to—   (i)   access   to shops,   public restaurants,   hotels and   places   of   public entertainment;   or   (ii) the   use   of   wells, tanks,  bathing ghats, roads   and   places   of Citizen 91 public   resort maintained   wholly   or partly   out   of   State funds or dedicated to the   use   of   general public, only   on   grounds   of religion,   race,   caste, sex, place of birth or any of them. 4. Article   16(1)   declares   that there   shall   be   equality   of opportunity for all citizens in matters   relating   to employment   or   appointment to any office under the State. ­ Only citizens 5. Article   16(2)   states   that   no citizen   shall   on   grounds   of only religion, race, caste, sex, descent,   place   of   birth, resident   or   any   of   them   be ineligible for or discriminated against   in   respect   of   any employment   or   office   under the State. ­ Citizen 6. ­ Article   17   abolishes untouchability   and forbids the practice of the same in any form and declares it to be a punishable offence. Neither   the word   “citizen” nor   the   word “person”   is mentioned   in Article   17.   It means   that what   is abolished   is the   practice and   any violation   of this injunction   is punishable. 7. ­ Six types of rights are listed in Article 19(1), as   available   to   all Citizens 92 citizens. 8. Article   20   confers   three different rights namely (i) not to be convicted except by the application of a law in force at the time of the commission of offence;   (ii)   not   to   be prosecuted and punished for the   same   offence   more   than once;   and   (iii)   right   against self­incrimination. ­ Persons 9. ­ Article 21 protects life and   liberty   of   all persons. Persons 10. Article   21A   mandates   the State   to   provide   free   and compulsory   education   to   all children of the age of six to fourteen years. ­ Children 11. Article 22 provides protection against   arrest   and   detention generally and saves preventive detention   with   certain limitations. ­ All   persons except   an enemy   alien (Article   22(3) (a) makes the provision inapplicable to   an   enemy alien). 12. ­ Article 23(1) prohibits traffic   in   human beings and begar and other similar forms of forced   labour.     Any contravention is made a punishable offence. Any person 13. ­ Article   24   prohibits the   employment   of children below the age of   fourteen   years   in any factory or mine. Children 14. ­ Article   25(1)   declares the right of all persons to   freedom   of Persons 93 conscience   and   the right freely to profess, practice   and propagate religion. 15. ­ Article 26 confers four different   types   of rights   upon   every religious denomination   or   any section thereof. Religious  denomination 16. Article 27 confers right not to be   compelled   to   pay   any taxes,   for   the   promotion   of any particular religion. ­ Person 17. ­ Article   28(1)   forbids religious   instructions being provided in any educational institution   wholly maintained   out   of State funds, with the exception   of   those established under any endowment or trust. Person 18. ­ A   right   not   to   take part   in   any   religious instruction   imparted in   an   educational institution   recognised by   the   State   or receiving   aid   out   of State   funds,   is conferred   by   Article 28(3). Person 19. ­ A right to conserve the language,   script   or culture distinct to any part of the territory of India   is   conferred   by Article 29(1). Citizens 20. A   right   not   to   be   denied admission   into   any This   applies   to institutions Citizen 94 educational   institution maintained   by   the   State   or receiving   aid   out   of   State funds,   on   grounds   only   of religion, race, caste, language or any of them is conferred by Article 29(2). maintained   by   the State   or   even   to institutions   receiving aid out of State funds. 21. (i)   A   right   to   establish   and administer   educational institutions of their choice is conferred   by   Article   30(1) upon the religious as well as linguistic minorities. (ii)     The   State   is   mandated under   Article   30(2)   not   to discriminate   against   any educational   institution   while granting aid. ­ Religious and  linguistic  minorities 22. ­ The right to move the Supreme Court for the enforcement   of   the rights   conferred   by Part III is guaranteed under Article 32. The   words “State”, “citizen”   or “person”   are not mentioned in   Article   32, indicating thereby   that the   right   is available   to one   and   all, depending upon   which right is sought to   be enforced. 74. The above table would show that some of the Articles of PartIII are in the form of a directive to the State, while others are not. This is an indication that some of the rights conferred by Part­III are to be honored by and also enforceable against, non­State actors. 95 75. For instance, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against non­State actors also. The owner of a shop, public restaurant, hotel or place of entertainment, though a non­State actor cannot deny access to a citizen of India on grounds only of religion, race etc., in view of Article 15(2)(a). So is the case with wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public, in view of Article 15(2)(b). The right not to be enforced with any disability arising out of untouchability is available against non­State actors under Article 17. The right against double jeopardy, and the right against self­incrimination available under sub­Articles (2) and (3) of Article 20 may also be available even against non­State actors in the   case   of   prosecution   on   private   complaints.   We   need   not elaborate   more,   as   the   table   given   above   places   all   rights   in perspective.

76. That takes us to the question as to how the Courts in India have dealt with cases where there were complaints of infringement by   non­State   actors,   of   fundamental   rights,   other   than   those 96 covered in column 2 of the Table in para 73 above. To begin with, this Court was weary of extending the enforcement of fundamental rights against private individuals. But this reluctance changed over a period of time. Let us now see how the law evolved: (i) In  P.D.  Shamdasani  (supra), a Five Member Bench of this Court was dealing with a writ petition under Article 32, filed by a person who lost a series of proceedings both civil and otherwise, against the Central Bank of India Limited, which was at that time a company incorporated under Companies Act. The grievance of the petitioner in that case was that the shares held by him in the company were sold by the bank in exercise of its right of lien for recovery of a debt. Therefore, the petitioner pitched his claim under Article 19(1)(f) and Article 31(1)(which was available at that time). But while making a comparison between Article 31(1) (as it stood at that time) and Article 21, both of which contained a declaration in the same negative form, this Court observed in  P.D.  Shamdasani  as follows:   “There   is   no   express   reference   to   the   State   in Article 21. But could it be suggested on that account that that Article was intended to afford protection to life and personal liberty against violation by private individuals? The   words   “except   by   procedure   established   by   law” plainly exclude such a suggestion”. 97 (ii) The aforesaid principle in P.D. Shamdasani was reiterated by another   Five   Member   Bench   of   this   Court   in  Smt.   Vidya Varma  vs.  Dr.   Shiv   Narain   Varma66holding   that   the language of Article 31(1) and Article 21 are similar and that they do not apply to invasions of a right by a private individual and that consequently no writ will lie in such cases. (iii) In  Sukhdev   Singh  vs.  Bhagatram   Sardar   Singh Raghuvanshi67  two   questions   arose   before   a   Constitution Bench of this Court. One of the questions was whether an employee of a statutory corporation is entitled to protection of Articles 14 and 16 against the corporation on the premise that these   statutory   corporations   are   authorities   within   the meaning of Article 12. In his separate but concurring opinion, Mathew,   J.   pointed   out   that   the   concept   of   State   has undergone  drastic  changes  in  recent   years and  that  today State cannot be conceived of simply as a coercive machinery wielding   the   thunderbolt   of   authority.   The   learned   Judge quoted the decision of the US Supreme Court in  Marsh  vs. Alabama68 , where a person who was a Jehovah’s witness was arrested   for   trespassing   and   distributing   pamphlets,   in   a company town owned by a corporation. Though the property in question was private, the Court said that the operation of a town was a public function and that therefore, the private 66AIR 1956 SC 108 67(1975) 1 SCC 421 68326 US 501 (1946) 98 rights   of   the   corporation   must   be   exercised   within constitutional limitations. After quoting the decision in Marsh, K.K. Mathew, J. went on to hold as follows: “95. But how far can this expansion go? Except in very few cases, our Constitution does not, through its own   force,   set   any   limitation   upon   private   action. Article 13(2) provides that no State shall make any law which takes away or abridges the rights guaranteed by Part III. It is the State action of a particular character that   is   prohibited.   Individual   invasion   of   individual right   is   not,   generally   speaking,   covered   by   Article 13(2). In other words, it is against State action that fundamental   rights   are   guaranteed.   Wrongful individual acts unsupported by State authority in the shape   of   laws,   customs,   or   judicial   or   executive proceeding are not prohibited. Articles 17, 23 and 24 postulate that fundamental rights can be violated by private individuals and that the remedy under Article 32 may be available against them. But, by and large, unless an act is sanctioned in some way by the State, the action would not be State action. In other words, until   some   law   is   passed   or   some   action   is   taken through officers or agents of the State, there is no action by the State…” (iv) In People’s Union for Democratic Rights  (supra) this Court pointed   out   that   the   fundamental   right   guaranteed   under Article   24   is   enforceable   against   everyone,   including   the contractors.  The Court went a step further by holding that the Union   of   India,   the   Delhi   Administration   and   the   Delhi Development   Authority   have   a   duty   to   ensure   that   this Constitutional obligation is obeyed by the contractors. Going further, this Court held that certain fundamental rights such as   those   found   in   Articles   17,   23   and   24   are   enforceable against the whole world. 99 (v) S. Rangarajan  (supra) was a case where a division Bench of the Madras High Court revoked the ‘U’ certificate issued to a Tamil   feature   film,   on   the   ground   that   it   offended   the reservation policy. The Government of Tamil Nadu supported the decision of the High Court on the ground that several organizations   in   Tamil   Nadu   were   agitating   that   the   film should   be   banned   as   it   hurt   the   sentiments   of   people belonging to the reserved categories. After pointing out that this Court was amused and troubled by the stand taken by the State Government, this Court indicated that it is the duty of the State to protect the freedom of expression since  it  is  a  liberty  granted against  the State and  that the State cannot plead its inability to handle the hostile audience problem.  Holding that the State cannot negate the rule of law and surrender to blackmail and intimidation, this Court said that it the obligatory duty of the Court to prevent it and protect the freedom. (vi) In  Smt.  Nilabati, this Court made  a  distinction  between, (i) the decision in Kasturi Lal upholding the State’s plea of   sovereign   immunity   for   tortious  acts  of   its   servants, which was confined to the sphere of liability in tort; and (ii) the State’s liability for contravention of fundamental rights  to  which  the  doctrine  of  sovereign   immunity  has no application in the constitutional scheme. In paragraph 100 34, which contains the separate but concurring opinion of Dr. A.S. Anand, J., the law was summarised as follows:­ “34. The   public   law   proceedings   serve   a   different purpose than the private law proceedings. The relief of monetary   compensation,   as   exemplary   damages,   in proceedings under Article 32 by this Court or under Article   226   by   the   High   Courts,   for   established infringement   of   the   indefeasible   right   guaranteed under   Article   21   of   the   Constitution   is   a   remedy available   in   public   law   and   is   based   on   the   strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which   has   failed   in   its   public   duty   to   protect   the fundamental   rights   of   the   citizen.   The   payment   of compensation in such cases is not to be understood, as   it   is   generally   understood   in   a   civil   action   for damages   under   the   private   law   but   in   the   broader sense   of   providing   relief   by   an   order   of   making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the   fundamental   rights   of   the   citizen.   The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public   law   duty   and   is   independent   of   the   rights available to the aggrieved party to claim compensation under   the   private   law   in   an   action   based   on   tort, through   a   suit   instituted   in   a   court   of   competent jurisdiction or/and prosecute the offender under the penal law.” (vii) In  Lucknow  Development  Authority  vs.  M.K.  Gupta69 this Court pointed out that the administrative law of accountability 69(1994) 1 SCC 243 101 of public authorities for their arbitrary and even  ultra vires actions has taken many strides and that it is now accepted by both by this Court and English Courts that the State is liable to compensate for the loss or injury suffered by a citizen due to arbitrary actions of its employees. (viii) The decision in  Bodhisattwa  Gautam  (supra), arose under special circumstances. A girl student of a college lodged a complaint   against   a   Lecturer   for   alleged   offences   under Sections 312, 420, 493, 496 and 498­A IPC.   The Lecturer moved the High Court under Section 482 Cr.P.C. for quashing the complaint. The High Court dismissed the quash petition. When the Lecturer filed a special leave petition, this Court not only dismissed the SLP but also issued notice suo motu on the question as to why he should not be asked to pay reasonable monthly maintenance during the pendency of the prosecution. Finally,   this   Court   ordered   payment   of   a   monthly   interim compensation after  holding   that  what   was   violated  was the fundamental right of the women under Article 21 and that   therefore  a   remedy   can   be  provided   by   this   Court under Article 32 even against the non­state actor (namely the   accused).     This   decision   was   cited   with   approval   in Chairman,   Railway   Board  &   Ors.  vs.  Chandrima   Das (Mrs.) &Ors.70 . 70(2000) 2 SCC 465 102 (ix) As rightly highlighted by the learned  amicus,  this Court has awarded   damages   against   non­State   actors   under   the environmental law regime, whenever they were found to have violated the right under Article 21. For instance this Court was concerned with a case in  M.C.   Mehta  vs.  Kamal   Nath  71 where a company built a club on the banks of River Beas, partly   taken   on   lease   from   the   Government   and   partly   by encroaching into forest land and virtually turning the course of   the   River.   Invoking   the   “polluter   pays   principle”   and “precautionary   principle”   landscaped   in  Vellore   Citizens’ Welfare   Forum  vs.  Union   of   India72and   also   applied   in Indian   Council   for   Enviro­Legal   Action  vs.  Union   of India73, this Court held the owner of the private motel to be liable to pay compensation towards the cost of restoration of the ecology of the area. Thereafter, a show cause notice was issued to the motel as to why they should not be asked to pay compensation to reverse the degraded environment and as to why a pollution fine should not be imposed. In response, the motel contended before this Court that though in proceedings under   Article   32   it   was   open   to   this   Court   to   grant compensation to the victims whose fundamental rights were violated or who are victims of arbitrary Executive action or victims of atrocious behavior of public authorities, the Court cannot impose any fine on those who are guilty of that action. 71(1997) 1 SCC 388 72(1996) 5 SCC 647 73(1996) 3 SCC 212 103 The motel also contended that fine is a component of criminal jurisprudence   and   hence   the   imposition   of   fine   would   be violative   of   Articles   20   and   21.   This   Court,   even   while accepting the said argument in so far as the component of fine is concerned, directed the issue of fresh notice to the motel to show   cause   why   exemplary   damages   be   not   awarded,   in addition   to   the   damages   already   awarded.   Thereafter,   this Court held in M.C. Mehta vs. Kamal Nath (supra at footnote no.15) as follows:­ “10. In   the   matter   of   enforcement   of   fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have   been   responsible   for   disturbing   the   ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the “POLLUTER­PAYS PRINCIPLE” which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter,   is   under   an   obligation   to   make   good   the damage caused to the environment.” (x) In  Consumer   Education   &   Research   Centre  &   Ors.  vs. Union of India  &Ors.74, this Court held that in appropriate cases   the   Court   could   give   appropriate   directions   to   the employer,   be   it   the   State   or   its   undertaking   or  private employer, to make the right to life meaningful, to prevent pollution of work place, protection of environment, protection of   the   health   of   the   workmen   and   to   preserve   free   and 74(1995) 3 SCC 42 104 unpolluted water for the safety and health of the people. The Court was dealing in that case with the occupational health hazards   and   diseases   afflicting   the   workmen   employed   in asbestos industries. In paragraph 29 of the Report, this Court said, “…It is therefore settled law that in public law claim for compensation is a remedy available under Article 32 or Article 226   for the   enforcement   and   protection  of  fundamental and human   rights.   …   It   is   a   practical   and   inexpensive   mode   of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported   exercise   of   their   powers   and   enforcement   of the   rights   claimed   either  under   the   statutes   or   licence issued  under  the   statute  or  for  the  enforcement  of  any right or duty under the Constitution or the law.” (xi) In Vishaka vs.  State of Rajasthan. 75 , this Court laid down guidelines, in the absence of a legislation, for the enforcement of the right to gender equality of working women, in a class action petition that was filed to enforce fundamental rights of working women and to prevent sexual harassment of women in workplace. The guidelines imposed an obligation upon both public and private employers not to violate the fundamental rights guaranteed to working women under Article 14, 15, 19(1)(g) and 21. In Medha Kotwal Lele  & Ors.  vs. Union of 75(1997) 6 SCC 241 105 India76,this   Court   noted   that   even   after   15   years   of   the judgment in Vishaka  (supra), many States had not made the necessary amendments or failed to effectively implement the guidelines. This Court issued a direction in Paragraph 44.4 : “44.4     The   State   functionaries   and   private   and public   sector   undertakings/organisations/bodies/ institutions,   etc.   shall   put   in   place   sufficient mechanism to ensure full implementation of Vishaka [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] guidelines and further provide that   if   the   alleged   harasser   is   found   guilty,   the complainant victim is not forced to work with/under such harasser and where appropriate and possible the alleged   harasser   should   be   transferred.   Further provision   should   be   made   that   harassment   and intimidation of witnesses and the complainants shall be met with severe disciplinary action.” (xii) In Githa Hariharan (Ms.) & Anr. vs. Reserve Bank of India & Anr.77 , this Court was dealing with a challenge to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 which declared the father to be the natural guardian of the person and property of a minor son and unmarried daughter. The mother was recognised as the natural guardian under these provisions   “after   the   father”.  These   provisions   resulted   in hardship to spouses separated from each other while dealing with the wards. Reading the obligations of the State under certain International Conventions like CEDAW into the right to 76(2013) 1 SCC 297 77(1999) 2 SCC 228 106 dignity of women and gender equality, traceable to Article 21 and 14, this Court read down the word “after” to mean “in the absence   of”.   By   such   interpretation,   this   Court   invoked fundamental rights to interpret a word in the sphere of family law. (xiii) In  Indian  Medical   Association  vs.  Union   of   India. 78, the policy of an Army College of Medical Sciences to admit only those   who   are   wards   of   army   personnel,   based   on   scores obtained   in   an   entrance   test,   was   under   challenge.   The question   that  came  up for  consideration  was  whether  this discriminatory   practice   by   a   private   entity   would   be   in violation   of   Article   15   of   the   Constitution.   This   Court   in Paragraph 187 stated: “187. Inasmuch as education, pursuant to T.M.A. Pai [(2002) 8 SCC 481], is an occupation under sub­clause (g) of clause (1) of Article 19, and it is a service that is offered for a fee that takes care of all the expenses of the educational institution in rendering that service, plus a reasonable surplus, and is offered to all those amongst   the   general   public,   who   are   otherwise qualified,   then   such   educational   institutions   would also be subject to the discipline of clause (2) of Article 15.   In   this   regard,  the   purport   of   the   above exposition of clause (2) of Article 15, when read in the context of egalitarian jurisprudence inherent in Articles  14,  15,  16  and  Article  38,  and  read  with our national aspirations of establishing a society in which   equality   of   status   and   opportunity,   and justice, social, economic and political, would imply that the private sector which offers such facilities ought   not   to   be   conducting   their   affairs   in   a manner   which   promote   existing   discriminations and disadvantages.” 78 (2011) 7 SCC 179 107 (xiv) In  Society   for   Unaided   Private   Schools   of   Rajasthan (supra),  the   constitutionality   of   Section   12   of   the   Right   of Children to Free and Compulsory Education Act, 2009 was challenged on the ground that it violated Articles 19(1)(g) and 30 of those who had established schools in the private sector. While upholding the Constitutionality of the provision, which required all schools, private and State­funded, to reserve 25% of its intake for students from disadvantaged background, this Court held:  “222. The   provisions   referred   to   above   and   other provisions of international conventions indicate that the rights have been guaranteed to the children and those rights carry corresponding State obligations to respect, protect and fulfil the realisation of children's rights. The   obligation   to   protect   implies   the horizontal right which casts an obligation on the State   to   see   that   it   is  not   violated  by  non­State actors. For  non­State actors to respect  children's rights   casts   a   negative   duty   of   non­violation   to protect   children's   rights   and   a   positive  duty   on them to prevent the violation  of children's rights by others, and also to fulfil children's rights and take   measures   for   progressive   improvement.   In other words, in  the  spheres of  non­State  activity there shall be no violation of children's rights.” (xv) In  Jeeja   Ghosh  vs.  Union   of   India79,   the   petitioner,   a disabled   person   suffering   from   cerebral   palsy,   was unceremoniously ordered off a SpiceJet aircraft by the flight crew on account of the disability. The petition was filed for putting in place a system to ensure such a violation of human 79(2016) 7 SCC 761 108 dignity and inequality is not meted out to similarly placed persons. This Court observed as follows:  “10. It is submitted by the petitioner that the Union of India (Respondent 1) has an obligation to ensure that its   citizens   are   not   subject   to   such   arbitrary   and humiliating discrimination.  It   is  a   violation   of  their fundamental rights, including the right to life, right to equality, right to move freely throughout the territory of India, and right to practise their profession.  The State   has   an   obligation   to   ensure   that   these rights are protected — particularly for those who are disabled. …” This Court awarded compensation to the petitioner against the private Airline on the ground that the airline, though a private enterprise, ought not to have violated her fundamental right. (xvi) In Zee Telefilms  Ltd.  vs.  Union of India80, this Court held that though BCCI does not fall within the purview of the term “State”, it discharges public duties and that therefore even if a remedy under Article 32 is not available, the aggrieved party can always seek a remedy before the ordinary courts of law or by way of a writ petition under Article 226.  This Court pointed out that the violator   of   a   constitutional   right   could   not   go   scot­free   merely because it is not a State.  The said logic was extended by this Court to   a   “Deemed   to   be   University”   in  Janet   Jeyapaul  vs.  SRM 80(2005) 4 SCC 649 109 University81, on the ground that though it is a private university, it was discharging “public functions”, by imparting education. 77. All the above decisions show that on a case­to­case basis, this Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator. But to enable the courts to have certain basic guidelines in place, for dealing with such cases, this Court developed a tool in Justice K.S. Puttaswamy. While affirming the right to privacy as a fundamental right, this Court laid down the landscape as follows: “397.  Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union's argument: that a right must   either   be   a   common   law   right   or   a fundamental   right.   The   only   material   distinctions between the two classes of right—of which the nature and content may be the same—lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed.  Common   law rights are horizontal in their operation when they are violated by one's fellow man, he can be named and   proceeded   against   in   an   ordinary   court   of law.   Constitutional   and   fundamental   rights,   on the   other   hand,   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. It is perfectly possible for an 81(2015) 16 SCC 530 110 interest   to   simultaneously   be   recognised   as   a common   law   right   and   a   fundamental   right. Where the interference with a recognised interest is by the State or any other like entity recognised by   Article   12,   a   claim   for   the   violation   of   a fundamental right would lie. Where the author of an identical interference is a non­State actor, an action  at   common   law  would   lie   in  an  ordinary court. 398. Privacy has the nature of being both a common law right as well as a fundamental right. Its content, in both forms, is identical. All that differs is the incidence of   burden   and   the   forum   for   enforcement   for   each form.” 78. Thus, the answer to Question No. 2 is partly found in the 9­ Judge Bench decision in Justice K.S. Puttaswamy itself. We have seen from the line of judicial pronouncements listed above that after A.K. Gopalan  vs. State of Madras82 lost its hold, this Court has expanded the width of Article 21 in several areas such as health, environment, transportation, Education and Prisoner’s life etc. As Vivian Bose, J., put it in a poetic language in S. Krishnan vs   State   of   Madras83 “Brush   aside   for   a   moment   the pettifogging   of   the   law   and   forget   for   the   nonce   all   the learned disputations about this and that, and "and" or "or ", or   "may"   and   "must   ".   Look   past   the  mere   verbiage   of   the 82AIR 1950 SC 27 83 AIR 1951 SC 301 111 words   and   penetrate   deep   into   the   heart   and   spirit   of   the Constitution.”. The original thinking of this Court 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”84  to   the   “nature   of   the   duties/functions   performed”85 . Therefore, we would answer Question No. 2 as follows:  “A fundamental right under Article 19/21 can be  enforced  even against  persons  other than the State or its instrumentalities