Horizontality under the Indian Constitution: A Schema

According to the classical model, constitutional rights are deemed to regulate the relationship between the individual and the State, acting as a check upon State power, and enforceable “vertically” by the individual against the State. They are not supposed to apply to interactions or transactions between private parties. Such interactions are to be regulated by the common law, or by legislatively enacted statutes. There are a number of theories for why the idea of rights evolved in this manner. Critical theorists such as Seyla Benhabib argue that the conception of rights arose out of the American and French revolutions, both of which were led by a rising bourgeoisie class that wanted to wall off a “private” economic and personal domain against absolutist State interference; other legal historians argue that at the time that Constitutions were first drafted, the common law was deemed sufficient to protect whatever rights individuals might have had against each other. Be that as it may, over the last thirty years, there has been a growing consensus among Constitutional courts that a purely vertical model of constitutional rights is insufficient – whether this is because of growing private power and the retreat of the welfare State, feminist critiques of the public/private distinction, an expanded conception of rights, or some combination of all three. Constitutional courts, therefore, have developed various ways in which to apply rights “horizontally” – i.e., to apply rights in transactions where private actors are involved in some way.

Like its counterparts in the United States, Canada, South Africa and Germany, the Indian Supreme Court has had occasions to engage with horizontality, and to craft various kinds of remedies in such cases. However, there is a significant lack of clarity about the different ways in which the Indian Supreme Court has invoked horizontality, and the constitutional questions that need to be resolved in such cases. In this essay, I will attempt to schematize the way in which the Court has treated horizontality, and highlight some of the key unresolved issues in the Court’s jurisprudence.

Any systemtisation of horizontality must address two issues. First, against whom is the remedy being sought? While the ultimate goal of horizontal rights litigation is to modify the relationship between private parties, this may be done either by arraigning the private party directly as a respondent, or by indirectly attempting to reach private action through litigation against the State, which is aimed at forcing the State to act in order to change the private behaviour in question. And secondly, what is the remedy being sought against? This second enquiry proceeds parallel to, but is not identical with, the first. What is impugned might be private action, or it might be State action that allows certain kinds of private action which are at issue.

With this in mind, consider the following table as a prelude to the discussion, with the remedies arranged on a rough, intuitive spectrum of vertical —> horizontal:

Type of Remedy

Respondent Cause of Action Case(s)
Private body assimilated to State under Article 12 Private actor Private act (classified as State act) Pradeep Kumar Biswas vs Indian Institute of Chemical Engineering, (2002) 5 SCC 111.
Positive Rights enforceable against the State State State (in)action Vishaka vs State of Rajasthan, (1997) 6 SCC 241; Medha Kotwal Lele, (2013) 1 SCC 311
Indirect horizontality Private actor State law/common law R. Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632.
Direct horizontality Private actor Private act IMA vs Union of India, (2011) 7 SCC 179; PUDR vs Union of India, (1982) 3 SCC 235.


1) Assimilation under Article 12: Article 12 of the Indian Constitution includes within its definition of State “the Government and 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.” The Supreme Court has held that certain private bodies, in their structure or function, are so closely connected to the State, that they qualify as “other authorities” within the meaning of Article 12, and are consequently equated with the State for the purposes of fundamental rights enforcement. Indian cases have historically fluctuated between two tests for determining the scope of “other authorities” under Article 12: a control test (or, a structural test), which looks at the extent to which the private body is under the control of the State; or a functional test, which asks whether the private body is performing a function that could fairly be called a State function. In Pradeep Kumar Biswas vs Indian Institute of Chemical Engineering, the Supreme Court settled the debate in favour of the control test. It held that only bodies that were “functionally, financially and administratively dominated by or under the control of the Government” came within the ambit of Article 12. I have explored and critiqued the theoretical foundations of this debate elsewhere. For the purposes of this discussion, under this approach, what is ultimately being challenged is a private act of a private respondent, but both the act and the party are deemed, by a legal fiction, to be equivalent to the State. Consequently, this is the most “vertical” of the approaches that ultimately seek to hold a private body liable for rights violations.

2) Positive rights enforceable against the State: Classically, fundamental rights have been understood to be negative in nature – i.e., they act as constraints upon what the State can do, but they do not impose a positive obligation upon the State to act in any particular way. This understanding has been critiqued extensively by legal scholars as well as judges. The United States cleaves to the classical negative approach, as exemplified by the case of DeShaney vs Winnebago, where the Supreme Court held that no cause of action lay against a State agency’s negligent failure to prevent child abuse by a custodial parent. Internationally, however, this position has not been accepted. In interpreting the ICCPR, the United Nations Office of the High Commissioner for Human Rights has stated that a right casts a parallel, composite set of duties upon the State: the duties to “respect, protect, and fulfill” that right. The duty to respect tracks the classical conception of non-interference, while the duty to protect requires the State to protect individuals against human rights abuses, no matter who might commit them. In other words, the State’s failure to reasonably prevent human rights violations by private parties amounts to an abrogation of its duty to protect.

The Supreme Court applied this conception in Vishaka vs State of Rajasthan, the Supreme Court held that the State’s failure to pass a sexual harassment legislation for regulating public and private workplaces amounted to a violation of the Petitioner’s constitutional rights under Articles 14, 19 and 21. The Court issued a set of guidelines, now famously known as the Vishaka Guidelines, which were meant to act as a temporary stand-in until the legislature framed a sexual harassment law. Fifteen years later, in Medha Kotwal Lele vs Union of India, the Supreme Court found that many states had still not implemented the Guidelines, and consequently, directed them to do so within a period of two months. What is crucial to note is that in both Vishaka and Medha Kotwal Lele, what was at issue was both public and private discrimination, but that in both cases, the respondent was the State. In other words, what the Court held was that individuals have Articles 14, 19 and 21 rights against the State which, in turn, cast an obligation upon the State to regulate private actors in a manner that ensures that these rights are not violated.

Conceptually, it is crucial to distinguish the logic of Vishaka from the famous (or notorious) proliferation of the Supreme Court’s Article 21 jurisprudence. In most of the cases where the Court has interpreted Article 21’s guarantee of the right to life and personal liberty in an expansive manner, it has done so in order to repair certain omissions or problems with its acts (e.g., the right to livelihood developed in Olga Tellis was in response to State evictions, the right against solitary confinement was in response to the acts of prison wardens, and so on). These cases are about the duty to fulfill – that is, the State is required to undertake all acts that ensure that a negatively-worded right is nonetheless effectively exercised by rights-bearers. In the context of horizontality and Vishaka, however, what was at issue was the duty to protect, which focused upon the State’s abrogation of its duties via its failure to regulate private actors.

While Vishaka is a landmark judgement, the Court is yet to explicate clearly the model of positive duties that it is using. General Comments to the ICCPR, for instance, clearly specify what the corresponding duties entail in cases relating to the right to education, or the right to food. This lacuna is something that the Court will, hopefully, address by developing a rigorous and constitutionally justified account of positive duties.

3) Indirect Horizontality: Indirect horizontality refers to a situation where the respondent is a private actor, acting in its capacity as a private actor. The challenge, however, is not to the respondent’s acts, but to the law that the respondent relies upon to justify its acts. One classic example of indirect horizontality is the famous case of New York Times vs Sullivan, where the American Supreme Court found that the common law of defamation, as applied by the state Courts of Alabama against the New York Times, was inconsistent with the constitutional guarantee of the freedom of speech and expression. Consequently, in private defamation proceedings between Sullivan and the New York Times, the Court modified defamation law in order to bring it in line with the Constitution, and exonerated NYT. Similar to this, Canadian Constitutional jurisprudence casts an affirmative duty upon the Court to develop common law in line with the Constitution. The most famous example of indirect horizontality, however, is the German Constitutional Court’s “radiating effect”. According to the famous Luth case:

“…the Basic Law is not a value-neutral document .. Its section on basic rights establishes an objective order of values, and this order strongly reinforces the effective power of basic rights … Thus it is clear that basic rights also influence [the development of] private law. Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit.”

In other words, basic rights radiate outwards beyond the Constitution, in a manner that affects private law and private adjudication.

In R. Rajagopal vs State of Tamil Nadu, the Supreme Court adopted indirect horizontality in the context of both defamation and privacy, which – until that time – had remained common law torts. Upon the lines of New York Times vs Sullivan, it modified the common law of defamation, adopting a stricter threshold for the plaintiffs, in order to bring it line with Article 19(1)(a) of the Constitution. It also referred to Article 21 in order to strengthen the individual’s right to privacy against other individuals. Notice that in Rajagopal, the respondent is the State. That, however, is only because it so happened that it was the officials of the State who brought defamation and privacy claims against the appellant (much like how, in Sullivan, Sullivan himself was the police commissioner of Montgomery, Alabama). The logic of Rajagopal, however, is one of indirect horizontality – i.e., it is not constitutionally suspect private action that is directly being implicated, but the law that authorises that action is what is at issue.

Cases involving indirect horizontality often require a delicate balancing act. This is because action that is off-limits to the State is often completely acceptable when it comes to private parties. Therefore, laws that merely permit, or facilitate, private arrangements that individuals are entitled to enter into, but the State is not, should not be invalidated or modified. For instance, in Zoroastrian Cooperative vs District Registrar, the Supreme Court held that the members of a Cooperative Society had the freedom and the right to associate with whomever they pleased, and that this freedom overrode the right of the individual against non-discrimination on the basis of caste, race, religion etc. Consequently, the Court upheld the impugned legislation, as well as the bye-laws, that permitted and authorised the Society to exclude people purely on the basis of religion.

As in the case of positive duties, the Court is yet to clarify that it is incrementally developing common law in accordance with constitutional values. It is important for the Court to develop a model that specifies the extent to which it is permissible for the Court to invoke background constitutional values during the course of private law adjudication. Different jurisdictions such as the United Kingdom (with respect to the Human Rights Act), New Zealand, and Germany all allow varying ranges of flexibility to Courts to achieve the goal of harmonising common law and a background rights-based legislation. The Indian Supreme Court is yet to explicate a similarly lucid account.

4) Direct Horizontality: Lastly, direct horizontality refers to a situation where the private act of a private party is challenged on the touchstone of the Constitution. The Indian Constitution has three specific provisions that outlaw horizontal rights violations. Under Article 15(2), no citizen may be restricted from access to shops, public restaurants, hotels and places of public entertainment, as well as places of public resort dedicated to the use of the general public, on grounds only of religion, race, caste, sex, place of birth, or any of them. Article 17 prohibits the practice of untouchability. Article 23 prohibits traffic in human beings, as well as bonded labour.

In IMA vs Union of India, the Supreme Court referred back to the Constituent Assembly Debates to hold that the word “shops” was of very wide import, and referred not merely to a physical “shop”, but to any arms-length provision of goods or services on the market. In that case, the Court held that schools came within the meaning of shops for the purposes of Article 15(2), and that consequently, private schools were subject to the non-discrimination guarantees under the Constitution. At the heart of the Court’s reasoning was the understanding that the most pervasive forms of discrimination in Indian society had been horizontal, and took the form of excluding a section of society from the economic and social mainstream through boycotts and denial of access.

With respect to Article 23, in PUDR vs Union of India, the Supreme Court did something similar, holding that “begar” under Article 23 did not simply refer to “bonded labour” in its technical sense, i.e., inter-generational captivity, but “every form of forced labour.”


This line of reasoning, however, remains underdeveloped. Apart from Article 23, when it comes to Article 15(2), the Court is yet to provide a rigorously developed understanding of the scope of the word “shops”. It is also yet to analyse the exact meaning of the word “access”. Is “access” limited to situations where private parties refuse to transact on the basis of a constitutionally prohibited marker, or does it extend to all kinds of economic interactions between parties, including – to take a recent controversy – hiring and firing decisions?

Conclusion: In sum, at present, we have a fairly detailed and layered jurisprudence of horizontality. A few things, however, are important. The Court must conceptually distinguish between the different types of horizontality, based upon the identity of the actors, as well as the nature of the action that is being challenged. Once that is done, the Court must also develop these distinct models in a doctrinally consistent and justified manner. At present, the only issue that the Court has definitively settled is the State action issue under Article 12. Beyond that, the following questions remain open:

(1) What is the scope of the positive duties upon the State under Part III, and the extent to which the State must regulate the conduct of private actors as an aspect of those positive duties? Different jurisdictions have given different answers thus far.

(2) To what extent, and under what circumstances, may the Court invoke indirect horizontality to develop private law, in proceedings between private parties, in a manner that is consistent with Constitutional values? How are the rights of the parties to be balanced in such cases?

(3) What is the scope of direct horizontality under Article 15(2), with respect to the words “access” and “shops”?



Filed under Horizontal Rights

18 responses to “Horizontality under the Indian Constitution: A Schema

  1. Karan Lahiri

    There’s also private bodies performing public functions, against whom one can invoke Art. 226 remedies. See para 31 onwards of Santosh Hegde’s opinion.

    • True. I was wondering whether to include that, but I left it out because I think that horizontality, properly defined, would be the application of fundamental rights in a horizontal context.

    • Sorry, that was unclear. I meant to say, Article 32 remedies.

      • Karan Lahiri

        See para 31. Clearly speaks of horizontal application of constitutional rights. Essentially, Art. 226 is a substitute for the enforcement of Part III rights, even if 32 isn’t. The language is wide enough to include enforcement of fundamental rights. It isn’t merely an admin law remedy. Even I didn’t realise this until I read that bit closely.

  2. Right. You’re correct.

    Isn’t this a little strange, though? This means that horizontality differs in accordance with the court you’re before. Surely that’s illogical? Or am I missing something very basic?

  3. Para 30 says:

    “Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on *the standards generally applicable* to judicial review of State action.”

    Also, the relevant part of Hegde J.’s judgement in Zee Telefilms states:

    “But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.”

    So, what these judgements unambiguously say is that private bodies exercising public functions are subject to 226 jurisdiction on the *standards* generally applicable to judicial review of State action. They don’t expressly say that a *fundamental rights claim* lies against a non-State body under 226. Given the sheer absurdity of the latter position, whereby the nature of your claim would change depending upon the Court you’re standing before, and – as you pointed out – the absurdity of the claim that Article 12 controls only 32, and not Part III – I would argue that these judgements ought to be read as saying that you can proceed against private bodies performing public functions under Art 226 under general public law standards that require the public bodies to act fairly, in good faith, non-arbitrarily etc. In many cases, the *content* of these standards would overlap with Part III rights, in particular, Article 14. But you still can’t make a claim for fundamental rights enforcement against a private body.

    On an aside, I think this messed up position is the inevitable culmination of thirty years of SC jurisprudence that has gradually dissolved the distinction between constitutional law and administrative law.

  4. In fact, I think the above interpretation would accord with what Justice Mohan held in his concurring opinion in Unnikrishnan – that school performing a public function could be held to Article 14 standards of fairness, without directly invoking Article 14. That would bring about a uniformity of the positions. You can approach neither court for FR enforcement against a private body. You can approach both courts for public law standards enforcement against a private body. With respect to the HC, you can do it under 226, whereas before the SC, you’re barred from going under 32, but you can move an SLP, or something similar (I’m shaky on SC jurisdiction, so won’t stick out my neck here. 🙂 )

    • raghav

      As you correctly point out, the problem is the collapsing of the difference between Constitution and Administrative law, to the point where the only identified ‘source’ of the right to fairness/non-arbitrariness in state action is Article 14. I’m not aware of a judgment that lays down a ‘general public law standard’ of fairness de hors Article 14, so the entire 32/226 distinction really falls apart, because what the HC is invariably doing in the 226 is enforcing a Part III guarantee of non-arbitrariness in the exercise of a public function. The best I can offer is that the SC is saying – you have an efficacious remedy before the HC, so go there first.

      • Justice Mohan in his concurring opinion in Unnikrishnan seems to repeatedly move between the two ideas. First, he says that if you’re performing a public function, you have a “duty to act fairly.” Then he says that if you’re performing a public function, you will be “subject to Article 14”. But to support that proposition, he cites a case that was about expanding the scope of the mandamus writ!

        I think there is some support for the public-duties-for-public-functions argument in his judgement, which would make for a more coherent constitutional jurisprudence, but then again, it’s only a concurrence…


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