writ jurisdiction and fundamental rights when applied horizontally

iv) Another aspect that needs consideration is that a Writ Court, does not ordinarily adjudicate to issue Writs in cases where alternate and efficacious remedies exist under common law or statutory law particularly against private persons. Therefore, even if horizontal operation of the Fundamental Rights under Article 19/21 is recognised, such recognition would be of no avail because the claim before a Writ Court of fundamental rights violations would fail on the ground that the congruent common law right which is identical in content to the Fundamental Right, may be enforced by having recourse to common law remedies. Therefore, on the ground that there exists an alternate and efficacious remedy in common law, the 96 horizontal claim for fundamental rights violations would fail before a Writ Court. This may be better understood by way of an illustration. Let me assume for the purpose of argument that the Fundamental Right under Article 19(1)(a) read with Article 21 is allowed to operate horizontally. A person would then be eligible to file a writ petition, against another private individual or entity for violation of such right. The violation may for instance be a verbal attack at the aggrieved person, which may have the effect of undermining such person’s dignity or reputation. Dignity and reputation are essential facets of the right to life under Article 21; at the same time, they are also recognised as common law rights as they are fundamental attributes of human personality which is regarded as a supreme value in common law. Common law remedies, including declarations, injunctions and damages, are available to redress any injury to common law rights, including the right to dignity and reputation. Such remedies are also statutorily recognised under the Specific Relief Act, 1963 and the Indian Penal Code. Therefore, on account of availability of an alternate remedy under common law, the Courts would be reluctant to entertain a writ petition under Articles 226 or 32, as the case may be. 97 v) Further, it is trite that Writ Courts do not enter into adjudication of disputed questions of fact. But, questions regarding infringement of the fundamental rights under Article 19/21, by a private entity, would invariably involve disputed questions of fact. Therefore, this is another difficulty that must be borne in mind while determining the horizontal operation of such rights in a writ proceeding. However, there is another aspect of the matter that requires to be discussed. A writ of habeas corpus is an order directing the person who has detained another to produce the detainee before the court in order for the court to ascertain on what ground or for what reason he has been confined, and to release him if there is no legal justification for the detention. A writ of habeas corpus is granted ex debito justiae and the applicant must only demonstrate prima-facie, unlawful detention of himself or any other person. If there is no justification for the detention and the same is unlawful, a writ is issued as of right vide Union of India vs. Paul Manickam, (2003) 8 SCC 342. The importance of a writ of habeas corpus is the duty being cast on a Constitutional Court to issue the writ to safeguard the freedom of a citizen against illegal and arbitrary detention. In my humble view, an illegal detention is a violation of Article 21 of the Constitution, irrespective of whether the detention is by the State or by a private person. 98 A petition under Article 226 of the Constitution would therefore lie before the High Court, not only when the person has been detained by the State but also when he/she is detained by a private individual vide Mohd. Ikram Hussain vs. State of Uttar Pradesh, A.I.R. 1964 SC 1625 at 1630. In my view, such a petition under Article 32 of the Constitution would also lie before this Court for seeking a writ of habeas corpus in terms of Article 32 (2). Such a writ could be issued not just against the State which may have illegally detained a person, but even as against a private person. Hence, in the context of illegal detention, Article 21 would operate horizontally against private persons also. Such a departure has to be made although Fundamental Rights are normally enforced against the State under Article 32 of the Constitution. Otherwise, the remedy by way of a writ of habeas corpus would be rendered incomplete if the said remedy is not available against a private person under Article 32 of the Constitution. Hence in the context of illegal detention, even by a private person, I would opine that Article 21 would operate horizontally and the writ of habeas corpus could be issued against a private person just as under Article 226 of the Constitution, the High Court can issue such a writ against any person or authority. But even in the context of Article 32(2) of the Constitution, it may not be proper to restrict the said remedy only as against the State but the same may be made available even as against private persons, in which event the power exercised by this Court could be in accordance 99 with Article 142 (1) of the Constitution to do complete justice in the matter. For ease of reference Article 142(1) may be extracted as under: vi) “142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. - ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.” Therefore, a writ of habeas corpus could be issued by this Court under Article 32 of the Constitution, not only against the ‘State’ as defined under Article 12 of the Constitution but also against a private individual. This is because illegal detention by a private person is a tort and of a nature similar to a constitutional tort. The reason for saying so is because an illegal detention whether by a State or a private person has a direct and identical effect on the detainee. The detainee loses his liberty and there may be a threat to his life. Directions in the nature of writs of habeas corpus have been issued by this Court on previous occasions, against private individuals, particularly in cases of kidnapping, child custody etc. [See for instance: Nirmaljit Kaur (2) vs. State of Punjab, (2006) 9 SCC 364] In such cases, resorting to the process of instituting a criminal case before a police station, may prove to be futile because the need of the hour in such cases is swift action. The writ of habeas corpus under Article 226 100 as well as Article 32 of the Constitution, is festium remidium, i.e., a speedy remedy, and such remedy needs to be made available even as against a private individual. It is appropriate that the High Court concerned under whose jurisdiction the illegal detention has occurred should be approached first. In order to invoke jurisdiction of this Court under Article 32 of the Constitution by approaching this Court directly, it has to be shown by the Petitioner as to why the concerned High Court has not been approached. In cases where it would be futile to approach the High Court, and where satisfactory reasons are indicated in this regard, a petition seeking issuance of a writ of habeas corpus, may be entertained. However, in the absence of such circumstances, filing a petition under Article 32 of the Constitution is not to be encouraged, vide Union of India vs. Paul Manickam, (2003) 8 SCC 342.