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Kaushal Kishor v. State Of UP: A Tale of Mis-Readings and Bad Externalising


We’re pleased to bring to our readers a guest post by Akshat Agrawal on the Supreme Court’s decision in Kaushal Kishor v. State of U.P.  Akshat is an LLM student at Berkeley Law specialising in IP policy. He is a graduate of Jindal Global Law School and has previously clerked at the Delhi High Court. He’s written several posts for us in the past and they can be found here.

Kaushal Kishor v. State Of UP: A Tale of Mis-Readings and Bad Externalising

Akshat Agrawal

In a radical judgment, the Constitutional Bench of the Supreme Court in Kaushal Kishor v. State of U.P. has held Article 19 and 21 of the Constitution of India to be applicable to legal entities beyond the State and its instrumentalities under Article 12!

Flaws of the Majority

An extreme reading of the text of the majority view, although improbable to be accepted, would be- the decision extends protection of Fundamental Rights (FRs) against private legal persons as well. This view has radically extreme consequences, and upon close thought, it seems possible that such a view, arguably, has the potential to make many property interests in speech unrealizable, especially in cases when these speech interests are touted in property-esque terms specially to make them transferable or alienable, something that is alien to the concept of FRs. Copyright law would be gone, and some would argue the same even for Trademark law, unless the same is fit into the logic of public morality/order (as was done in the case of patents by the US at the Dispute Settlement Body of the WTO in the Technology Transfer case against China) or as is done in the case of robbery (mens rea based theft of property) [page 44]- of reducing all speech based IP infringement to be criminal. This is an interesting consequence, although I do not think the Court, for once, intended this.

Another interpretation that seems more coherent (and I think is the actual view of the Court, although not expressed well), is that the Court has merely assimilated ever-broadening contours of Article 12 of the Constitution and extended it. It has essentially stated that reducing the applicability of FRs to “State and its instrumentalities”, when narrowly construed, is wrong. In other words, enforcement of Article 19 is also permissible against actors reasonably connected with the State or perceived to be performing State-oriented functions (like the Minister in the referred case), although not essentially qualifying to be State or its instrumentality under Article 12. This has entirely escaped most of the early critics and even the dissenting decision- which has only highlighted the pitfalls of horizontal application. And reasonably so, as the pitfalls are extreme– (i) imagine right to occupation under 19(1)(g) being enforced against private employer or (ii) right to association being enforced against all private entities etc. However, this escape is a mistake of (i) reading, and more importantly of (ii) writing.

I say (i) reading because– the statement of the majority court does not have a positive connotation of enforceability against private actors. No, it has nothing to do with horizontal application. It writes- “can be enforced even against persons other than State and instrumentalities”. This, when read in context of facts of the reference and paragraph 76 and 77 of the majority, which lists the periodic expansion of enforceability beyond State and instrumentalities to cover proximate actors/independent agents of public functions or have an impact on public concerns etc., clearly shows that the logic of the majority is not horizontal application but rather applicability of FRs to any entity performing a public function, or something with an in rem effect. The confusion here is because of de-contextualized expression of analysis. It is (ii) bad writing which can easily be mis-interpreted, to in effect deleteriously impact the whole FR jurisprudence. However, the same is not really a cause of much concern as the decisions in P.D. Shamdasani v. Central Bank and Smt.   Vidya Varma vs.  Dr.   Shiv   Narain   Varma, two similarly sized benches, would run contrary to this.

This entirely escaped the dissent (for less fault of its own, as shown above). The dissent however, instead of remedying, rather furthers the flaws of the majority, first by stating the pitfalls of horizontal application, and then by falling into the same trap by furthering these pitfalls, in effect more tangibly.

Flaws of the Dissent (grave)

The dissent firstly invokes, albeit mistakenly, Hohfeld’s “rights- duties” analysis (why is it a mistake? postponing that for a bit). This is done to invoke an abstract concept of propagation of ideas and of social value of speech for it to receive protection under Article 19(1)(a). The attempt of the dissent to include even speech which does not form part of Article 19(2)- as being speech that is unsocial and not part of protectable speech under Article 19(1)(a)- because it does not advance any social value or is deceptive or does not result in propagation of ideas- is a mistake that chills free speech beyond constitutionally imposed restrictions (which in any case are wide sweeping). The definition of what is non-social speech for the society must be garnered from 19(2) and nothing beyond it. The attempt of the dissent to expand the scope of 19(2) to include all, even non-defamatory, in personem statements (what one considers an attack could be a valid criticism in the eye of the other) as being violative of a facet of human dignity, is a judicial invention- something not having any reasonable basis beyond fragile morality of individual identity, where being called out is a cause of fragile misery. All this, while on one hand saying that 19(2) is exhaustive. Completely paradoxical.

This is the perfect segue to show another problematic facet of the dissent- the method of analysis. On the one hand, the dissent shows its obsession with individual identity, completely segregated from social relations, and on the other, it invokes Hohfeldian idea of “right has a corresponding duty.” This is a clear paradox.

Hohfeld argues rights to be social relations, not absolute and absolutely not natural. They are mutually constitutive, conceptual, semiotic and institutional. Hohfeld primarily teaches us that rights are nothing but legal institution of social relations that are an unavoidable feature of human existence. Talha Syed further shows us that rights are social relations, that are historically specific, and not some thing out there somewhere, natural, primordial, or transcendental. ( you can find his relevant work on this linked here) The latter is a misconception of the atomist analysis of Hobbes, Locke, Smith and other properterian liberals, who believe in the concept of pre-social individuals outside of any history. A right cannot exist without there being two constituent actors related to/interdependent on each other, the relation which constitutes district roles. There are no rights on a desert island by oneself. As Talha argues, it is not eyesight (which maybe natural for some). It is a reasoned institution of social relations between multiple actors, not for any individual for, by and of themselves.

Most importantly, naturalising these rights has led the dissent to expound an exceedingly problematic statement – “Notwithstanding that such rights have been placed in Part III of the Constitution of India, the rights are concurrently preserved in the field of natural law or common law.” This is essentially (more tangibly, clearly and gravely) the same horizontal application mistake- that everyone is presuming has been committed by the majority- which leads to what I had stated in the first paragraph – radically extreme consequences. Are free speech interests, association interests, which are rights to be claimed against the State and its instrumentalities and in rem actions of other actors (as stated by the majority), also enforceable against individual private actors through the route of common law remedies/ suit? What happens to copyright law if free speech is a natural right. I am not supporting copyright law’s existence here. I am just skeptical of its possibility to exist now [sidenote: some may argue that 19(1)(g) safeguards it- but 19(1)(g) is not a property right but an occupation and trade right- it also does not support alienability (according to the dissent itself). 19(1)(g) also has a public interest restriction, which would potentially include speech rights, information access, especially when concerned with scholarship, infotainment etc.) I don’t think Copyright can be encapsulated within 19(1)(g)]. Common law free speech or copyright law (which is not common law!)- Who wins?

All I am saying is that this is a consequence of misunderstanding the concept of rights as natural, and not historically specific social relations between specifically inter-dependent actors. Assuming all FRs- something which signifies legal social relations between public actors on the one hand and interdependent individuals living in a society on the other- to be natural and part of common law rights as well- transposes the content of these specific social relations between specifically defined interdependent social actors (the individual and those involved in public actions/in rem actions/ State like actions),  to be applicable to other interdependent social actors and relations (the individual and another individual)- where they do not fit in in any helpful way.

This is a grave mistake of the dissenting opinion – one that is more worrisome than the majority. This is, in no way, an argument for the majority. The majority has major flaws. One of them coming up.

Back to the Majority

In its analysis, the majority states Article 19(2) to be exhaustive, yet, in effect, renders it completely inexhaustive and arbitrarily determined through apparently well-established legal tools which are not spelled out at all. [Para 44]. The court has affirmed decisions like Railway Board UOI v. Niranjan Singh, where in a conflict between Articles 19(1)(a), (c) and (e) vs. right to hold property, the court held property interest to be superior. Thus, on the one hand it has held that rights of others are valid limitations on rights of one, and on the other it has held Article 19(2) to be exhaustive. How does this make any sense? This in effects broadens the scope of Article 19(2) to include a lot of arenas which are essentially not facets of public morality unless forcibly fitted in- like property interests. Is Article 19(2) really exhaustive?

Article 19(1)(a) is the right of an actor that can be claimed against its relation with the State, and the State cannot impinge. Article 19(1)(g), similarly, is the right of an actor that can be claimed against its relation with the State, and the State cannot impinge. These are legal institutions of specific social relations between specific social actors. They have competing roles in the relation, where a privilege or a social entitlement is legally conferred. If the State has to choose between enforcing one individual’s free speech right, and another’s trade/occupation right, in a competing context, having to sacrifice one of the privileges offered in its social relations, it is then when 19(2) and 19(6) come into the picture as contextually competing value claims [Mind you, this is not equal to horizontal application or a claim of one individual against another]. It is only here that a benefit-burden analysis of these restrictions to privileges (offered in the form of rights in its social relations), is to be resorted to albeit strictly within their conceptual contours and not in an abstract sense- to uphold the value of one social relation over the other in any given conflicting context. Which restriction is broader, narrower, more important, in context of the value of the privilege being restrained? – This is the core question requiring judicial analysis. The Court has completely missed this.

On IP

In my view, if one believes this judgment (including the dissent) to have paved way for enforcing FRs against private legal individuals, whether by way of writ or by suit, there are deleterious consequences for Copyright law, content moderation law, any kind of digital paywalls etc. Any incentive/fairness interest of creators, unless enmeshed with public order or morality, would have no legal recognition, as a competing value claim with freedom of speech. Specially in case of information-based expressions, every request to access would be a speech request (also going as per the logic in Wiley Eastern v. IIM)- essentially de-commodifying a lot of speech-based expressions. However, in my opinion, we are not in luck yet! I think the only reasonable interpretation of thus judgment is the one where the Court extends the concept of State and its instrumentalities to include any in rem/ public action by anyone. This will definitely expand the contours of Section 52 of the Copyright Act, to include within itself, any informational use and access, that is required for essential in rem purposes.

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