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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

SUBMITTED BY

DEEPALI SINGH, ROLL NO-1408, 5th SEMESTER, B.B.A.LLB

SUBMITTED TO

MANORANJAN KUMAR, FACULTY OF CONSTITUTIONAL LAW-I

FINAL DRAFT SUBMITTED IN FULFILLMENT OF THE COURSE OF


CONSTITUTIONAL LAW-I FOR THE COMPLETION OF THE B.B.A.LLB. (Hons.)
COURSE

OCTOBER, 2017

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR PATNA-800001, BIHAR

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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

TABLE OF CONTENTS

ACKNOWLEDGEMENT ............................................................................................................................ 3
DECLARATION .......................................................................................................................................... 4
CONCEPT: ................................................................................................................................................... 5
ISSUES: ........................................................................................................................................................ 5
RESEARCH METHODOLOGY .................................................................................................................. 6
Sources of Data: ........................................................................................................................................ 6
Survey of data ........................................................................................................................................... 6
Limitations .................................................................................................................................................... 6
1. INTRODUCTION .................................................................................................................................... 7
2. HORIZONITALITY UNDER INDIAN CONSTITUTION ................................................................... 10
3. APPLICATION OF HORIZONALITY OF FUNDAMENTAL RIGHTS UNDER INDIAN
JUDICIARY. .............................................................................................................................................. 12
4. INDIRECT HORIZONTAL EFFECT: PRIVATE LAW ....................................................................... 17
5. CONCLUSION ....................................................................................................................................... 21
BIBLIOGRAPHY ....................................................................................................................................... 22

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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

ACKNOWLEDGEMENT

The researcher take this opportunity to express her profound gratitude and deep regards to her
guide MANORANJAN KUMAR SIR for his exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessing, help and guidance given by
him time to time shall carry the researcher a long way in the journey of life on which the
researcher is about to embark. Lastly, the researcher would like to thank almighty, her parents,
brother, sisters and friends for their constant encouragement without which this assignment
would not be possible.

THANK YOU,
DEEPALI SINGH.

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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

DECLARATION

I hereby declare that the work reported in the B.B.A.LL.B (Hons.) Project Report entitled
“FUNDAMENTAL RIGHT AND ITS HORIZONTAL APLLICATIONS” submitted at
Chanakya National Law University, Patna is an authentic record of my work carried under the
supervision of MANORANJAN KUMAR SIR. I have not submitted this work elsewhere for
any other degree or diploma. I am fully responsible for the contents of our project report.

DEEPALI SINGH
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
OCTOBER, 2017

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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

CONCEPT:

People in democratic countries enjoy certain rights, which are protected by judicial system of the
country concerned. Their violation, even by the State, is not allowed by the courts. India respects
the rights of the people, which are listed in our Constitution, under the heading “Fundamental
Rights”. The Fundamental Rights as one of the salient features of the Constitution. The details of
various fundamental Rights which are incorporated in chapter III of the Constitution and
horizontal applications are discussed in this project.

ISSUES:

There are many issues relating to fundamental rights and its horizontal application. One of the
instance is the Supreme Court has always been reluctant to apply fundamental rights to entities
falling outside the scope of Article 12. Apart from a few notable exceptions the Supreme Court
has constantly decided cases within the ambit of Article 12. The Court first faced the question of
horizontality in Shamdasani v. Union of India where the question was whether Article 31 was
applicable against private bodies. The Court held that Article 31 was not applicable against
private persons and also observed that Article 21 which does not mention the word state is
enforceable only against the state. This view was further strengthened in Vidya Verma’s case.
The problem with this approach is that the court treats Article 12 as the preamble to the
constitution and before deciding any case dealing with a fundamental right violation it first
decides the question as to whether the entity is state or not.

The Supreme Court’s approach to extend the application of rights has been to give a wide
meaning to Article 12 in order to cover a wider range of organizations. Though this approach is
laudable it leaves out many powerful corporations such as the BCCI and Air India from the
ambit of state. Therefore under this approach a powerful body performing an important state
function such as the BCCI cannot be held up for fundamental right violations.

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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

RESEARCH QUESTIONS:

The researcher has formulated the following research questions:

1. What is the meaning of the term Fundamental Rights?


2. What is the horizontality of fundamental rights?
3. What are the major issues related to horizontality of fundamental rights in India?

HYPOTHESIS:

The researcher has formulated the following hypothesis, the validity of which has been tested in
the course of research.

(i) There are issues in horizontal application of fundamental rights.

RESEARCH METHODOLOGY
The researcher has used only doctrinal method of research.

Sources of Data:
Secondary Sources - Books, magazines, journals and websites.

Survey of data
Library of CNLU, Patna.

Limitations
The researchers lack monetary and other resources. The research will be confined to a time-limit.
The research will be only doctrinal. For the doctrinal work the researcher will be confined to
library of CNLU and internet sources.

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1. INTRODUCTION

The origin of the concept of Fundamental Rights, which are also known as Natural Rights or
Human Rights or Basic Rights or Inalienable Rights, 1is based on the theory of Natural Law. The
idea that people have certain rights, which cannot be taken away, began with the theory of
Natural Law. This theory states that natural order exists in the universe because all things are
created by Nature or God. Everything has its own qualities and is subject to the rules of Nature
to achieve its full potential. According to this theory, anything that detracts from man's human
qualities, or prevents their full achievement, violates the law of Nature.2 This idea led to the
belief that men and governments everywhere are bound by Natural Law, it being higher than
man's law. The Roman Philosopher Cicero held the view that this Natural Law could be
discovered from human reason. This theory of Natural Law created an awareness of Natural
Rights and various thinkers and philosophers started discerning the Inherent and Sacred Rights
of men in the Divine Law. 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. Rights with vertical
effect apply only against the government whereas horizontal rights also apply against private
actors. For several well-known reasons that need not be rehearsed here, most rights in most
constitutions whether traditional civil and political rights or economic, social and cultural ones
are and have been vertical in nature, with at a maximum only a few exceptional ones being
understood as horizontal in application.

Accordingly, a second distinction has been introduced that emphasizes this latter way in which
constitutional rights may impact non-state actors; the distinction between their direct and indirect
horizontal effect. ‘Direct horizontal effect’ is the position within the basic dichotomy in which
constitutional rights bind private actors. Where it applies, individuals can be sued by their fellow
citizens for violating their constitutional rights, as for example constitutional tort actions in
Ireland. By contrast, ‘indirect horizontal effect’ means that although constitutional rights do not

1
The Fundamental Rights are also sometimes described as Inherent or Sacred Rights.
2
William C. Harvard, The World Book Encyclopedia, Vol.4, 1972, p. 469.

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directly regulate and impose duties on private actors, they may nonetheless impact and indirectly
regulate them.3

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, which 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 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 sum, constitutional rights that bind only the government or some part of it may have minimal
regulatory impact on private individuals: where such rights do not impose protective duties and
where they apply only to public law plus private law actions by the government alone for
example, in its capacity as employer or landlord. Here, constitutional rights have little or no
horizontal effect at all, indirect or direct.4 More commonly, such vertical rights can have varying
degrees of reach into the private sphere and indirect impact on private individuals, depending on
the nature and number of affirmative protective duties and whether the stronger or weaker
version of indirect horizontal effect is adopted.

In R. Rajagopal vs State of Tamil Nadu5, 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 Sullivan6, 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. The logic of Rajagopal’s case, however, is one of indirect

3
Horizontality under the Indian Constitution: A Schema, Wordpress, (31 st Oct, 2017, 07:11 PM),
indconlawphil.wordpress.com
4
Ibid
5
1995 AIR 264
6
376 US 254 (1964)

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horizontality i.e., it is not constitutionally suspect private action that is directly being implicated,
but the law that authorizes 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.

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2. HORIZONITALITY UNDER INDIAN CONSTITUTION

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. Any systematization 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

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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.

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3. APPLICATION OF HORIZONALITY OF FUNDAMENTAL RIGHTS UNDER


INDIAN JUDICIARY.

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,7 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. 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,8 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

7
[1970]3 SCR 363.
8
489 U.S. 189 ; 109 S. Ct. 998.

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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,9 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 India10, 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.

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

9
AIR 1997 SC. 3011.
10
CIVIL APPEAL NO. 5009 OF 2006

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example of indirect horizontality is the famous case of New York Times vs Sullivan,11 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.

12
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.

11
376 U.S. 254 (1964),
12
1995 AIR 264 1994 SCC (6) 632 JT 1994 (6) 514

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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,13 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,14 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

13
AIR 1997 Guj 136, (1997) 1 GLR 602.
14
(2011) 7 SCC 179.

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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.

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4. INDIRECT HORIZONTAL EFFECT: PRIVATE LAW

The second way that fundamental rights may have indirect effect on non-state actors is via their
impact on private law and ordinary private litigation. To the extent such rights govern the private
law that structures their legal relations with one another, they constrain what non-state actors can
lawfully be authorized to do and which of their interests, preferences and actions may be
protected by law. Such indirect horizontal effect may be ‘strong’, where all private law and
litigation is equally and fully subject to the fundamental rights, or ‘weak’, where at least some
part of it is not fully governed by fundamental rights. Indirect horizontal effect thus expands the
reach of fundamental rights into the private legal sphere and reduces the public or private
division in their scope, although of course not by as much as direct horizontal effect.

As a starting point, it would seem that all law including all private, common and customary law
is subject and subordinate to the fundamental rights. If it cannot be interpreted consistently with
Part III, then it is void to the extent of the inconsistency. This appears to be the clear meaning of
Article 13, which defines ‘law’ broadly, and also the general practice of the Supreme Court, as
exemplified by two cases from the early 1960s, in which first a statute and then a local custom
mandating pre-emption in land sales on the ground of vicinage were equally held to be violations
of the right to equality under Article 15 and the (subsequently repealed) right to acquire, hold
and dispose of property under Article 19(1)(f).15 These decisions based on two fundamental
rights applying to the State alone obviously had economic consequences for all the relevant
potential buyers and sellers.

Although reaching the Supreme Court via writ petition rather than appeal in the context of
private litigation, the decision in Mohini Jain v. State of Karnataka16, the case that established
both a right to education as part of Article 21 and the obligation of the State to provide it, can
also be seen as a case in which Part III applies to the private law of contracts and impacts private
universities. This is because in holding that it was wholly arbitrary under Article 14 and a
violation of its duty under Article 21 for the State to permit such universities to charge a

15
Bhau Ram v Baijnath Singh (1962) 3 SCR 724
16
1992 AIR 1858

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capitation fee in consideration of admissions, the Constitution indirectly constrains their freedom
of contract to charge what the market will bear.

The nature of the Supreme Court’s writ petition jurisdiction under Article 32 as fundamentally a
public law remedy serves to reinforce the general public-private division and limit the impact of
Part III on private law and private litigation. Because jurisdiction is granted solely for ‘the
enforcement of the rights conferred’ by Part III, it would seem that writ petitions must be
brought against entities capable of violating them; i.e., a ‘State’ under Article 12 or private
individuals in the case of the few directly horizontal provisions. Although the common practice
of naming both State and non-State actors as defendants means the distinction between public
and private litigation is not watertight, it is still the state action or omission that is the central
prerequisite and focus, and the only normal basis for finding a constitutional violation. This
limitation, however, still in principle leaves the ordinary appellate jurisdiction of the Supreme
Court and High Courts available for fundamental rights claims arising in the context of private
litigation.

In addition, it seems somewhat uncertain whether courts are ‘the State’ for purposes of Article 12
so that their official actions must be consistent with Part III. This is important because subjecting
the actions of courts to constitutional rights appears to be a necessary, if not sufficient, condition
of at least the strong version of indirect horizontal effect. In both Germany and the United States,
it is to a large extent through the constitutional rights obligations of the courts that this second
technique of indirect horizontal effect operates. In India is that courts are the state for Article 12
purposes, although he acknowledges that the leading case on the subject does not squarely
answer the question.17

This jurisdictional constraint is partly responsible for one notable area in which Part III has had
limited impact on the rules of private law and the conduct of private litigation. In the field of tort
law, the development in recent decades of parallel systems of public law tort actions in the
Supreme and High Courts under their Articles 32 and 226 jurisdictions on the one hand and
ordinary private law tort actions commenced in the lower courts on the other, has left the latter
largely untouched by Part III. The public or constitutional tort action against the state for

17
(2005) 7 SCC (J) 9

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violation of fundamental rights was first expanded to permit damage awards against it, then to
cover various types of state inaction, especially under Article 21, and finally to incorporate
looser or more flexible substantive standards of liability.18

It is true that in one sense this action breaches the public-private division and undermines the
autonomy of this area of private law, but it does so in a very specific way. It treats the
government’s liability for acts and omissions and also that of private actors joined as co-
defendants separately, under public law principles rather than the general private law rules
applying to individuals. In this way, it effectively removes the state’s liability into the sphere of
administrative law, as in many civil law systems. So although the public law tort action reduces
their range, it does not alter or affect the private law rules themselves, but leaves them largely
autonomous and uninfluenced by Part III.

The reasons for this bifurcation undoubtedly lie in the combination of-

(i) The nature and limits of Articles 32 and 226 as public law remedies requiring state
action or omission as an essential prerequisite
(ii) The desire of claimants and proactive members of the higher judiciary alike to by-pass
the weaknesses and inefficiencies of the ordinary civil litigation system in the lower
courts, with their massive backlogs, personnel shortages, and lack of funding.19

But the result is to create a fairly sharp public-private divide in the scope of Part III and hence a
limited regulatory impact of fundamental rights on private individuals outside the public law tort
regime.

A second important area of private law or private litigation in which Part III sometimes appears
to play relatively little role is the ordinary contract scenario in which courts are requested by the
non-breaching party to enforce the terms of an agreement. The 2005 decision in Zoroastrian
Cooperative Housing Society v. District Registrar20suggests that there are wholly substantive and
not only jurisdictional limits to the impact of fundamental rights in this area of private law. In
this case, which involved private litigation concerning the buying and selling of land subject to a

18
Supra note 1
19
Amit Sibal, From ‘niti’ to ‘nyaya, (30th Oct, 2017, 07:06 PM), www.india-seminar.com
20
(2005) 5 SCC 632.

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restrictive covenant heard on appeal, the Court upheld the enforceability of the Zoroastrian
Cooperative Housing Society’s bye-law preventing the sale of respondent’s land to a non-
member of the Parsi religion against a claim that this violated Articles 14 and 15. More
specifically, the Court rejected the claim that the relevant private law, the Gujarat Cooperative
Societies Act, 1961 and, in particular, its provision in Section 4 that a cooperative society shall
not be registered if, in the opinion of the Registrar, its working is likely to be in contravention of
‘public policy’, must be interpreted in light of the constitutional values of equality contained in
Article 14 and non-discrimination on the ground of religion contained in Article 15.

The judgment in this case therefore appears to reject the influential and widely-copied approach
of the German Constitutional Court that constitutional rights form an ‘objective order of values’
radiating throughout the legal system and that general statutory provisions such as public policy
qclauses are the specific mechanism by which ordinary courts must permit these values to
penetrate and influence private law. In seemingly holding that the Constitution and its
fundamental rights provisions are not engaged by, or relevant to, all private law relationships and
agreements in effect that not all private law is subject to the Constitution the Court carves out a
certain autonomy or separateness for the former that is arguably hard to square with Article 13.

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5. CONCLUSION
Through the use of its writ petition jurisdiction, the Supreme Court has in several well-known
areas taken a pioneering and innovative approach to Fundamental Rights under Part III. These
include the development of public interest litigation, with its loosening of standing rules and
substantive legal requirements; interpreting Part III and especially the right to life in Article 21
expansively in light of the Directive Principles of Social Policy in Part IV; and finding some of
these implied rights to impose judicially enforceable affirmative duties on the State, including
welfare obligations and responsibilities to protect. The Court has also interpreted Article 21 to
apply to private actors in the context of occupational health hazards, and perhaps also the right to
privacy. These last two developments in particular produce indirect and direct horizontal effect
respectively.

Somewhat ironically, however, the very success of the writ petition or public interest lawsuit has
also limited the reach of fundamental rights into the private sphere. This is because as a public
law remedy requiring a State defendant and primarily premised on its acts or omissions, Article
32 tends to reinforce rather than undermine the autonomy or separateness of private law,
restricting the opportunities for interaction and influence. Accordingly, there are areas in which
the Supreme Court has maintained more of a public-private division in the scope of fundamental
rights than some other influential constitutional courts.

The major example of this is the relatively limited impact that Part III plays in ordinary private
litigation, especially in tort and contract cases. There is no general principle that the fundamental
rights or the values they represent must be brought to bear by courts in adjudicating such
lawsuits, as in Germany and Israel; no general requirement that they take into account and
balance constitutional values against the relevant private law ones. And although the same is
mostly true in the United States, the Zoroastrian Society case also seems to reject the specific
decision in Shelley v. Kraemer on the constitutionality of court enforcement of discriminatory
restrictive covenants, which effectively covers some of the same ground as such a general
requirement. For this reason, and notwithstanding the relatively small amount of private liability
that is pushed into the public law regime via co-defendancy, the indirect horizontal effect of Part
III as it relates to private law is in practice weak rather than strong.

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FUNDAMENTAL RIGHTS AND ITS HORIZONTAL APPLICATIONS

BIBLIOGRAPHY
BOOKS

 M.P.Jain, Indian Constitutional Law, 7th Edition, Lexis Nexis.


 Bare Act, The Constitution of India, Universal Law Publishing Co. Pvt.Ltd. 2016.
 V.N.Shukla’s, Constitution of India, 11th edition, Eastern Book Company, Lucknow.
 Virendra Singh “ Indian Polity with Indian Constitution & Parliamentary” .
 Neelkanth Prakashan 1st e.d. 2016).
 P.l&wzra Dhat, Fuiuridmraita: Rights (2004).
 Anurag Pandey, “Human Rights and the Indian Constitution” 1st Edition.

WEBSITES

 https://law.yale.edu/system/files/documents/pdf/Climate_and_Human_Rights__Memo.Fi
nal.pdf
 https://is.muni.cz/th/257276/pravf_m/The_Horizontal_Effect_of_the_Right_to_fundamen
tal right.pdf
 https://edugeneral.org/blog/polity/fundamental-rights-articles-14-18-19-22-23-24-25-28-
29-30-32/
 https://link.springer.com/chapter/10.1007%2F978-3-319-04903-8_7.

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