The Supreme Court’s judgment in Kaushal Kishor (2023) expands fundamental rights enforcement against non-state actors, raising constitutional concerns about ignoring article 12 and judicial precedents.
Author
Nidhi Sharma, Assistant Professor, Centre for Constitutional Law Studies, Jindal Global Law School, O.P. Jindal Global University, Sonipat. Haryana, India
Summary
The chapter on fundamental rights in the Constitution of India, under article 12, identifies the “state” as the actor against whom fundamental rights can be enforced. Decades-long jurisprudence invoking article 12 has established the vertical enforcement of fundamental rights against state actors. However, a constitutional bench judgment in Kaushal Kishor (2023) alters this position, wherein the Supreme Court of India expanded the scope of fundamental rights against both state and non-state actors.
This article analyzes the dictum in Kishor to argue that even when fundamental rights have been sporadically enforced against non-state actors, it has been by obligating the state to mitigate fundamental rights transgressions by non-state actors (doctrine of indirect horizontal application). The article raises constitutional concerns about the Court’s reasoning in Kishor, positing that it ignores the constitutional mandate of article 12, disregards the judicial precedents supporting the vertical application of fundamental rights, and grants an unbounded sanction to enforce fundamental rights against virtually “anyone.”
Published in: International Journal of Legal Information
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