recognising horizontality of the fundamental rights under Articles 19 and 21

decisions of this Court are demonstrative of its disinclination or reluctance in recognising that Fundamental Rights enshrined under Article 19 and 21 are permitted to operate horizontally: a) In P.D. Shamdasani vs. Central Bank of India Ltd., A.I.R. 1952 SC 59, a Constitution Bench of this Court refused to entertain a Writ Petition filed under Article 32 of the Constitution, wherein a prayer was made to enforce the right under Article 19(1)(f) and Article 31(1), as they then stood, against a private entity. In that context, it was held that the language and structure of Article 19 and its setting in Part III of the Constitution clearly show that the Article was intended to protect those freedoms against State action. This Court declared that violation of rights of property by individuals or entities other than the State and its instrumentalities, was not within the purview of Article 19(1)(f). Further, this Court made a comparison between Article 31(1), as it then stood, and Article 21 as both Articles cast a negative duty on the State. In that context it was held that although there is no express reference to the State in Article 21, it could not be suggested that the Article was intended to 90 afford protection to life and liberty against violation by private individuals. That the words “except by procedure established by law” exclude such suggestion that Article 21 would operate horizontally. The aforesaid decision is illustrative of this Court’s reluctance to hold that the Fundamental Rights under Articles 19 or 21 of the Constitution, would operate horizontally. It is also to be noted that in the aforesaid case, this Court has acknowledged that a suitable remedy exists under statutory law to redress the infraction complained of. Therefore, while this Court was mindful that the rights in the realm of common law, some of which have gained statutory recognition, operate horizontally, the Fundamental Rights under Articles 19 and 21, do not, except in the case of seeking a writ in the nature of habeas corpus. (b) In Zoroastrian Cooperative Housing Society Limited vs. District Registrar, Cooperative Societies (Urban), (2005) 5 SCC 632, the Petitioner society was a registered society with its own bye-laws, under its parent legislation, the Bombay Cooperative Societies Act. As per bye-law 7, only members of the Parsi community were eligible to become members of the Society. The effect of this was that since housing shares could be transferred only to members, effectively, only Parsis could 91 buy plots under the aegis of the Cooperative Society. This restrictive covenant in the bye-laws became the subject matter of challenge before this Court, inter-alia, on the ground that it violated the right to equality enshrined in the Constitution. This Court refused to accept such a challenge and held that the Society’s bye-laws were in the nature of Articles of Association of a company and were not like a statute. The byelaws were only “binding between the persons affected by them.” That a private contractual agreement is not subject to general scrutiny under Part III of the Constitution. This Court further distinguished between a discriminatory legislation passed by the State and a discriminatory bye-laws of a society or association, which is not ‘State’. Accordingly, it held that while a legislation may be subject to a challenge on the touchstone of Part III of the Constitution, bye-laws of a society or association, could not. This decision is also demonstrative of this Court’s disapproval of horizontal operation of fundamental rights, making them directly applicable to interactions, whether contractual or otherwise, between private parties. iii) I am however mindful of the fact that over the years, the conception of “State” as defined under Article 12 of the Constitution has undergone significant metamorphosis. 92 Through its jurisprudential labour, this Court has devised several principles and doctrines, so as to enable citizens to enforce their fundamental rights not only against “State” as defined in the strict sense to mean “agency of the Government,” but also against entities imbued with public character, or entitles which perform functions which closely resemble governmental functions. [See: Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111; Zee Telefilms Ltd. vs. Union of India, (2005) 4 SCC 649; Janet Jeyapaul vs. S.R.M. University, (2015) 16 SCC 530] This Court has progressively expanded the scope of Article 12 of the Constitution so as to ensure that a private entity, which performs a public duty/function and therefore informs our national life, does not get away scott-free merely because it is not “State” stricto sensu. Such entitles are imbued with constitutional obligations on account of the public or statutory functions performed by them. At this juncture, it is necessary to reflect on the difference between holding that Fundamental Rights may be enforced against a private entity on account of the public nature of its functions, as contrasted with universal operation of fundamental rights claims against all persons. A private body, acting in private capacity, fulfilling a private 93 function, cannot be axiomatically amenable to the claims of fundamental rights violations. The decision of this Court in Ramakrishna Mission vs. Kago Kunya, (2019) 16 SCC 303 is also highly instructive on the issue of amenability of actions of private entities, to judicial review under Article 226 of the Constitution of India. In the said case, the issue before this Court was whether the Hospital run by the Petitioner Mission performed a public function that made it amenable to writ jurisdiction under Article 226. This Court found that the Hospital and the Mission were not amenable to writ jurisdiction under Article 226 since running a hospital would not constitute a public function. This Court further highlighted that even when a private entity performs a public function, the Court would be required to enquire as to whether the grant in aid received by the said entity covers a significant portion of its expenditure. This Court went on to declare that regulation of a private body by a statute does not give it the colour of a public function. A public function was held to be one which is “closely related to functions which are performed by the State in its sovereign capacity.” Accordingly, it was held that the Hospital was not performing a public function since the functions it performed were not “akin to those solely performed by State authorities.” It was 94 held that medical services were provided by private as well as State entities and therefore, the nature of medical services was not such that they could be carried out solely by State authorities. Thus, according to the decision of this Court in Ramakrishna Mission, regulation by the State either through a statute or otherwise; receipt of a meagre amount of aid from the State; receipt of concessions by the State; do not make a private entity amenable to the writ jurisdiction of Courts under Article 226 of the Constitution. Thus, recognising a horizontal approach of Fundamental Rights between citizens inter se would set at naught and render redundant, all the tests and doctrines forged by this Court to identify “State” for the purpose of entertaining claims of fundamental rights violations. Had the intention of this Court been to allow Fundamental Rights, including the rights under Articles 19 and 21, to operate horizontally, this Court would not have engaged in evolving and refining tests to determine the true meaning and scope of “State” as defined under Article 12. This Court would have simply entertained claims of fundamental rights violations against all persons and entities, without deliberating on fundamental questions as to maintainability of the writ petitions. Although this Court has 95 significantly expanded the scope of “State” as defined under Article 12, such expansion is based on considerations such as the nature of functions performed by the entity in question and the degree of control exercised over it by the State as such. This is significantly different from recognising horizontality of the fundamental rights under Articles 19 and 21, except while seeking a writ in the nature of habeas corpus. Such a recognition would amount to disregarding the jurisprudence evolved by this Court as to the scope of Article 12 of the Constitution.