Open Access Research Article
HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS IN INDIA – NEED AND CHALLENGES
Published Paper
Article Details
AUTHORED BY - ADARSH GOGOI
The Magna Carta of the Indian
Constitution is found in Part III of the document, which specifies essential
rights. The goal of include this chapter on fundamental rights is to protect
the most fundamental freedoms, including the right to life, liberty, and the
search of happiness, which ought to be considered permanent and subject to the
least amount of interference from those in positions of control. The concept
behind the incorporation of fundamental rights into the Constitution was that
everyone ought to conform to a code of social philosophy that would serve as a
reminder to the legislature and executive branch whenever rights are being
infringed upon, and that would also give citizens a chance to voice public
opposition to such actions.
The preamble of the Indian
Constitution, which places emphasis on justice, liberty, equality, and
fraternity, highlights the importance of upholding fundamental rights in all
spheres of society. As the influence of private actors is continuously
increasing in various sectors, ensuring accountability and protecting
individuals' rights from non-state entities becomes necessary for fostering
social justice. In India, the traditional conception of fundamental rights has
mostly focused on its vertical application, with the aim of regulating the acts
of the government. However, the various judgments given by courts have shown
that there is support within the courtrooms of India for the true application
of fundamental rights.
This study, aims to understand
India's stand on the horizontal application of fundamental rights and how it
was developed. This research addresses the constitutional needs for the
horizontal application of fundamental rights in order to protect the interests
of its citizens, which is the objective of the constitution. While addressing
the challenges faced by Indian courts in the way of horizontal application of
fundamental rights, this research work also suggests various ways for the
efficient implementation of horizontal application of fundamental rights while
supporting the need for it.
AIMS AND OBJECTIVE
AIM
This study is an attempt to seek
answers to questions regarding the necessity and challenges of the horizontal
application of Fundamental Rightss in India.
OBJECTIVE
·
Examine court rulings and interpretations pertaining
to the application of basic rights against non-state actors in a horizontal
manner.
·
Determine the main obstacles to the successful implementation
of horizontal fundamental rights and suggest solutions.
·
Understand the development of Horizontal Application
of Fundamental Rights in India.
SCOPE AND LIMITATIONS
SCOPE
This project's scope includes
examining judicial rulings, constitutional provisions, and practical
implications concerning the horizontal application of fundamental rights in
India's legal system.
LIMITATIONS
The insufficient amount of time, inappropriate primary material and potential bias in interpreting identity and regionalism are to be blamed for the limitations that arose over the course of investigation.
The insufficient amount of time, inappropriate primary material and potential bias in interpreting identity and regionalism are to be blamed for the limitations that arose over the course of investigation.
REVIEW OF LITERATURE
·
Indian
Constitutional Law[1] by M.P Jain is a timeless classic
about Indian constitutional law. In its eighth edition, this book provides a
clear, thorough, and systematic conceptual exposition of the complex and
diverse topic of constitutional law. Students, researchers, attorneys, judges,
legal academics, policy makers, and interested individuals seeking up-to-date
information on constitutional jurisprudence will find the book's in-depth
insights to be beneficial.
·
Fundamental
Rights Challenges: Horizontal Effectiveness, Rule of Law and Margin of National
Appreciation[2] by Carmen Martinez-Capdevila
provides a thorough analysis of the current topics related to fundamental
rights. The first section examines why there is constant discussion on the
subject of whether or not basic rights have a horizontal effect. The second
section is devoted to the rule of law and human rights. It makes the case that
the model of the rule of law that was previously appropriate is no longer
relevant before outlining the significance of the judicial branch in fending
off challenges to the judiciary's independence. Lastly, the third part
addresses a classic issue in the field of human rights: states’ margin of
appreciation.
·
Horizontal
Rights: An Institutional Approach[3] by Dr Gautam Bhatia offers a
fresh conceptual framework for comparing and evaluating constitutional rights.
A homeowner declines to rent their home to an individual based only on the
individual's race. Numerous real-life instances of this type include the use of
private authority to deprive others of their rights. Can these people respond
by citing the Constitution? Horizontal Rights: An Institutional Approach offers
a new angle on these complex, yet age-old problems. This book makes the case
that "default verticality," an imprecise notion, has served as the
foundation for constitutional study and law throughout countries. The
foundation of this rests on a set of philosophical presumptions, according to
which constitutional rights are automatically enforceable against the State and
require extra explanation when used against private individuals.
RESEARCH QUESTIONS
·
In
situations involving private entities, how have Indian courts horizontally
interpreted and applied basic rights?
·
What
are the main obstacles India faces when trying to enforce fundamental rights
against private actors?
·
What
effects does the horizontal application of fundamental rights have on India's
social justice system and individual freedoms?
RESEARCH METHODOLOGY
In this project, qualitative research
techniques were employed, and the researcher revived the Descriptive oriented
Doctrinal type of research. The use of secondary sources, documents written by
someone who did not directly witness or take part in the events depicted. They
are summaries and analyses of other people’s works.
The researcher has used Harvard
Bluebook (20th Edition) as a mode of citation in this project.
RIGHTS IN INDIA
Horizontal application of Fundamental
Rights means that Fundamental Rights can be imposed against non state as well
as private actors. First and foremost, the judiciary never intended to bring
private entities under the authority of the "state" for two reasons.
Firstly, private action can be easily addressed by the ordinary laws of the
country. Secondly, fundamental rights are granted to citizens as a defense
against the arbitrary acts of the state rather than against private
institutions.[4]
It is often believed that the
fundamental rights are enforced "vertically" by the person against
the State and it control the relationship between them by acting as a
restriction on the power of the State. Private parties' interactions and
transactions are not intended to fall under their purview. Common law or
legislation passed by the legislature will govern these kinds of exchanges.
There are several explanations on how the concept of rights came to be.
However, other legal historians claim that common law was considered adequate
at the time Constitutions were drafted, shielding individual rights from one
another. Nevertheless, over the past thirty years, constitutional courts have
come to the conclusion that a purely vertical model of constitutional rights is
insufficient. This consensus may have arisen from a number of factors,
including expanding rights, feminist critiques of the public/private divide,
growing private power, and the decline of the welfare state. As a result,
constitutional courts have arranged a number of methods for applying rights “horizontally”.
In certain instances where private
individuals or authorities have violated basic rights, the court has granted
remedies to the impacted party without addressing the issue of whether the
violator was the state or not. Fundamental rights must now be available
against private companies as well. It they are not granted against private
institutions then, people will have to face the adverse affects of the actions
of big private companies without any legal remedy, which would defeat the objective
of fundamental rights which was intended by the Constitution's framers. [5]
In M.C. Mehta v. Union of India,[6] the Indian Supreme Court sent
encouraging signals about the inclusion of private corporations as
"states." The court in this case has addressed the question of
whether a private "state" organization carrying out important public
responsibilities is entitled to be referred to as a "state."
The Kerela High Court in the case of Bharat
Kumar K. Palicha and Anr. v. State of Kerala and Ors.[7] highlights an important
instance of how the state action theory has been interpreted more broadly,
granting political parties access to fundamental rights. According to the
respondents, a challenge based on the alleged violation of fundamental rights
under Articles 19 and 21 of the Constitution may only be brought against
actions taken by the state, not to stop a private citizen or political
organization from allegedly infringing on that right.
APPLICATION OF HORIZONALITY OF FUNDAMENTAL RIGHTS
UNDER INDIAN JUDICIARY
In India, not only
is it about what the government can or cannot do but also how people and
private organizations treat each other in relation to basic rights. This idea is often referred to as the
"horizontal application of fundamental rights" focuses on
guaranteeing equality and justice in the course of regular, legally-guided
interactions between citizens.
ASSIMILATION
UNDER ARTICLE 12
According to the article 12 of the
Indian Constitution the definition of State includes “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.”[8] The Supreme Court ruled that some
private organizations have equal standing with the State for the purposes of
enforcing fundamental rights because of their close structural or functional
ties to the State, making them eligible to be classified as “other authorities”
under Article 12. In, Indian context there have been two tests to determine the
extent of “other authorities” under Article 12. This includes a functional test
according to which if a private body is carrying out any function which could
reasonably be called a function of state, and the other is control test which
is also known as a structural test. In this test the degree to which the private body is under
the control of the State determines whether it falls in the ambit of “other
authorities” or not. In the case of Pradeep Kumar Biswas v. Indian Institute of
Chemical Engineering,[9] the Supreme Court stated that
only entities that were "functionally, financially, and administratively
dominated by or under the control of the Government" were subject to Article
12. In this case the Court upheld the control test.
POSITIVE RIGHTS IMPOSED AGAINST STATE
According to the United Nations
Higher commissioner of Human Right the State is required to “respect, protect,
and fulfill” a right, this in turn imposes a parallel, set of duties on the
State which is clearly stated by United Nations Higher commissioner of Human
Right. The need to protect calls for the State to defend citizens against
violations of their human rights, regardless of the offenders. In contrast, the
duty to respect keeps to the traditional definition of non-interference. State
failure to properly prohibit private parties from violating human rights leads
to a surrender of the State's obligation to protect.[10]
The Supreme Court in the famous case
of Vishaka v. State of Rajasthan,[11] employed this concept and determined
that the State had violated the plaintiff’s constitutional rights mentioned in
Articles 14, 19, and 21 by failing to enact laws regarding sexual harassment in
both public and private workplaces. In the same case, the Court released a set
of guidelines, famously known as Vishaka guidelines, for a temporary period
until the government drafted a statue addressing the problem of sexual
harassment. The apex Court in the case
of Medha Kotwal Lele v. Union of India,[12] concluded that even after fifteen
years of the Vishaka case numerous states had not yet put the Guidelines into
practice, thereby asking them to comply with the previous judgment within two
months. It is important to remember that discrimination both private and public
was at issue in Vishaka and Medha Kotwal Lele, and that the State was the
respondent in both instances. Thus, in both of the cases Court determined that
people have certain rights under against the State. This means that the State needs
to make sure that the rights of the individuals are being protected for which
they are required to regulate private actors in that direction.
INDIRECT HORIZONTALLITY
When a private entity, like a
corporation or an individual's organization, is named as a defendant or
respondent in a lawsuit, but their behavior and actions are really governed by
fundamental freedoms and constitutional norms despite being a part of the private
sector, this is known in law as “indirect horizontality.” This theory of
indirect horizontality can be better understood with example of New York Times
v. Sullivan,[13] where the Supreme Court of the
United States stated that the common law of defamation which the state Courts
of Alabama applied against the New York Times were incompatible with the
freedom of speech and expression, guaranteed by the Constitutuion. As a result,
the Court changed defamation law and made them to comply with the principles of
the Constitution.
The Supreme Court of India in the
case of R. Rajagopal v. State of Tamil Nadu[14] established indirect horizontality
with regard to privacy and defamation, which were considered as common law
torts before this case. The Court in
this case issued an order which aligned the common law of defamation with Article
19(1)(a) of the Constitution. The court with a motive to strengthen a person's
right to privacy from other people, it also made reference to Article 21. It is
to be noted that a delicate balancing act is frequently required in cases
involving indirect horizontality. This is because actions which are being
prohibited by State are prefectable to private parties.
DIRECT
HORIZONTALLITY
The phrase “direct horizontal application
of fundamental rights” refers to the ability of any person or private
organization to directly apply and enforce constitutional protections on
another private organization in a conflict without the state or government
getting involved.The provisions of Indian Constitution prohibits horizontal
right abuses. A citizen cannot be refused entry to retail stores, hotels,
restaurants, theaters, or public resorts that are open to the public just
because they follow a particular religion, belong to a particular caste or race,
because of their gender, or combination of any of these. This is stated in
Article 15(2). Under Article 17, the practice of untouchability is prohibited.
According to Article 23, both bonded labor and human trafficking are prohibited.
The apex court in the case of IMA v.
Union of India,[15] held that the term “shops” had a
very broader meaning and it is applied to any type of market which offer’s any
products or services, rather than just physical store. The Supreme Court while
citing the debates from the Constituent Assembly determined that, for the
purposes of Article 15(2), schools should be qualified as shops, and as a
result of this, the Constitution's non-discrimination principles were to
protect private schools as well. This judgment of Court’s was based on the
observation that in Indian society most of the types of discriminations had
been horizontal, as a result of which the people were boycotted and their
access were denied from thereby excluding them from the mainstream economy and
society.
NEED AND CHALLENGES OF HORIZONTAL APPLICATIONS OF
FUNDAMENTAL RIGHTS
The impact of Globalization,
Privatization has made in necessary for India for the Horizontal application of
Fundamental rights. At the same time the horizontal application of Fundamental
rights are also subjected to certain challenges in Indian Context. Some of the
need and challenges are discussed in details which help us to develop a better
understanding of the issue.
NEED OF HORIZONTAL APPLICATIONS
Globalization, privatization, and the
decentralization of governmental duties have led to an interest with
designating private entities as states, whether they are real human beings
or entities like corporations. The idea that the welfare duties of the
traditional State are carried out for the "public interest" has now
given way to private actors' control. These private entities have not only
assumed the roles, but they have also been held accountable for the obligations
that were set down for the conventional State. As the number of Public Sector
Undertaking being reduced resulting in the rise of private sector,
there needs to be a check on the repressive and arbitrary acts that they conduct
and there should be provisions to challenge them on the basis of
unconstitutionality.
·
SOCIAL
JUSTICE
Article 12 of the Indian
Constitution has a number of clauses that imply that private actors fall under
the purview of the state. In the case of Kesavananda Bharti v. State of Kerala[16] it was held that the basic
structure of the Indian Constitution cannot be changed. This rule governs the
preamble and makes the commitment to uphold “social, economic, and political
justice,” but this guarantee would be become flawed if private actors were
also allowed to violate fundamental rights, leaving the State as the only
entity protected from such violations. Along with these the preamble also
promises for “Liberty of thoughts, expression, belief, faith and worship and
Equality of status and opportunity.” Private actors may unjustifiably reject
these ideas that the constitution has given its citizens if there is no legal
remedy provided. It is often observed that large corporations actively suppress
the idea of trade union formation and prevent employees from doing so. They
often pay men and women differently and by putting them in cruel working
circumstances they also violate their dignity.[17] Thus they have been consistently
breaking the concept of equality of position and opportunity.
·
TO
INSURE THAT THE RIGHTS OF THE INDIVIDUALS ARE PROTECTED
Article 17 of the Indian
constitution prohibits the practice of untouchability and any impairment
resulting from untouchability is considered to be illegal. The language of
Article 17 makes it clear that no one, not even the traditional State, a state
agency, or private parties, may engage in the act of untouchability. This also
demonstrates that there are other parties against whom the Fundamental Rights
may be enforced besides those specified in Article 12. Along the same lines,
Article 23 forbids horrific acts of forced labor and human trafficking. A brief
examination of the article itself reveals that private actors are subject to
the same rules, and any infraction by them would result in legal action. The same
is true of Article 24, which addresses the problem of child labor and states
that "no child under the age of fourteen years shall be employed to work
in any factory or mine or engaged in any other hazardous employment." The
Court holds that anyone found guilty of violating this Article will be
prosecuted and often orders them to substitute an adult family member for the
youngster.[18] Therefore, the aforementioned
demonstrates that any state or private actor, for that matter, has the
authority to hold violators of Fundamental and Human Rights accountable.
·
TO
PROTECT THE RIGHTS OF WORKERS
An additional
justification could be found in the freedom of speech provided by Article 19 of
the Indian Constitution. No entity, including the State, its agencies,
representatives, or any private individual, can take away this right. However,
this right is subject to the requirement that the speech in question be
consistent with the interests of the general public. Using the industrial world
as an example, big businesses regularly restrict employees' ability to
peacefully organize and make demands for issues that are justifiable in nature.
Article 19(1)(b) states that one cannot deny someone the freedom to
assemble, while Article 19(1)(c) states that no "private person" may
prevent employees from "forming associations or unions." Although the
constitution also provides for the imposition of reasonable restrictions, it is
to be noted that even if a private entities fall under the ambit of the state,
they are not allowed to impose any reasonable restrictions.
·
TO
ENABLE THE WORKERS TO LIVE A DIGNIGIED LIFE
The right to life
as stated in Article 21 guarantees that no one will be denied their
right to individual liberty and the ability to live a life of dignity. Without
the rights guaranteed to them, human life is incomplete. The term
"life" as used here refers not only to death but also to any action
that denies someone their ability to enjoy life to the fullest or diminishes
their sense of dignity. As a result, different private actors, such as
large corporations, must abide by the numerous wage payment and compensation
rules in effect as well as the welfare laws for the workers. The workers under
them cannot live a life of dignity if the firms fail to provide the same.[19]
CHALLENGES FACED
In India, the horizontal application
of fundamental rights faces several obstacles, such as a lack of
categorization, problems with private entity enforcement, judicial resistance,
and mounting pressure on the legal system. The study also discusses how to
overcome these obstacles by increasing enforcement mechanisms, reforming legal
classification, reducing judge reluctance, and enhancing the judicial system's
infrastructure to expedite case resolution.
·
LACK
OF CLASSIFICATION
The impact of fundamental
rights in the private sphere has been weakened as a result of the Supreme
Court's repeated deliberate division of the private public domain into writ
petition and Public Interest Litigation proceedings, which prevent private
individuals from enforcing their rights. The Indian legal system needs to
undergo self reform and make it clear when and where horizontal effect is
acceptable. The judiciary has had a great deal of discretion to interpret in
accordance with their opinions because there has been no definite expression or
classification. India should follow the South African Constitution's lead in
determining which rights are vulnerable to being used against an individual and
which are not.
·
ENFORCEMENT
ISSUES
The process of enforcing
fundamental rights against private persons has many difficulties due to
distinctions between state and non-state actors. For instance, private actors
will mostly operate at levels without the regulatory control and accountability
like that of state actor therefore it is challenging to ensure conformity with
legal obligations. On the other hand, private individuals function with a amount
of independence and discretion in their decision-making processes, which are
not very often put into practice by government institutes subject to
administrative procedures and judicial review. Moreover, inadequate enforcement
mechanisms are another barrier, whereby different individuals may have many
obstacles to trying to get legal remedies or seeking sanctions for the
violation of fundamental rights by private parties. So far, barriers in the
form of procedural complexities can often deter individual actions against
powerful private parties where there is discrimination, harassment, or other
forms of violations of fundamental rights. To further address the problems in
enforcement, there must be a multi-dimensional approach that is strengthening
the regulatory framework, including access to legal aid and support services,
and awareness programs for individual and community rights.
·
JUDICIAL
RELUCTANCE
Judicial reluctance in
extending fundamental rights horizontally refers to the hesitancy or caution
that courts exhibit in applying constitutional protections to private
relationships or interactions. This reluctance is a result of number of
concerns, including invasion into private autonomy, undue interference in
private affairs and many others. Courts might be hesitant to intervene in
disputes between private parties. However, due to this reluctance it results in
various challenges for the people whose rights are being violated by private
actors to access remedies and protection of the law. Overcoming judicial
reluctance requires a delicate balancing act between the need to protect
individual rights and respect for private autonomy and the rule of law. This
could take the form of judicial education, dialogues with stakeholders and in
many other ways.
·
INCREASE
IN THE PRESSURE OF COURTS.
With the horizontal
application of Fundamental Rigths there has been an increase in the number of
cases in the court rooms. This has indeed increase a burden on the existing
infrastructure, and pressure in the existing number of court. There is a need
to increase the number of courts in order to enhance the efficiency of the
judiciary. With the technological advancement, and an efficient trial system
the Indian legal system can become a model of justice, ensuring that the cases
are being resolved on time along with effective protection of Fundamental
Rights.[20]
Horizontal application in India has become one of the significant ways
to ensure social justice, protection of rights, and dignity in life. In the
light of globalization and privatization of society, it is necessary that
constitutional protections must extend beyond state actors and be inclusive of
private actors. It is a broadening perspective of the fact that rights and
responsibilities are not something that can be considered in isolation in
today's society. The need for horizontal applications is emphasized by the
changing role of private actors, who wield considerable power and influence
over the lives of the citizens. From big corporations to NGOs, these entities
exercise functions traditionally done by the state. Hence, they are placed
under similar obligations toward the citizens and without mechanisms for
holding them responsible, aggrieved persons risk being denied redress and
protection.
Moreover, the principle of social justice present in the Indian
Constitution demands that all entities, public or private, must comply with the
values of equality, liberty, and dignity. It has to be realized that social
justice cannot be attained by just vertical enforcement against the state but
must be horizontal accountability throughout the sectors of society. But the
way to successful horizontal application is full of challenges, including lack
of clear legal classification, enforcement issues, judicial reluctance, and
burdening the judicial system. These require a various approach with legal
reforms, judicial education, and better infrastructure.Despite various
limitations, the various judicial verdicts have recognized for the need to
widen the scope of fundamental rights horizontally.
BIBLIOGRAPHY
BOOKS:
·
Carmen Martinez-Capdevila, Fundamental Rights
Challenges: Horizontal Effectiveness, Rule of Law and Margin of National
Appreciation, Springer Nature Switzerland AG, (2022).
·
Dr.Gautam Bhatia, Horizontal Rights: An Institutional
Approach, Hart Publishing, (2023).
·
M.P Jain, Indian Constitutional Law, LexisNexis,
(2018).
ARTICLES:
·
Akshit Rajpal, Enforceability of Fundamental Rights on
Private Individuals, LEX INSIGHT JOURNAL, ISSUE 1 VOL.1, (2019).
·
Sanu R. Paul, The Need for Horizontal Application of
Fundamental Rights in India with Reference to State Action Doctrine in the
Context of Globalisation, 2, Christ University, 90, (2013).
·
Robert H. Walker. The Modern Corporate State: Private
Governments and the American Constitution. Praeger Publishers Inc (1976).
WEBSITES:
·
www.jstor.com
·
www.scconline.com
·
www.manupatra.com
·
www.lexisnexis.com
[2] Carmen
Martinez-Capdevila, Fundamental Rights Challenges: Horizontal Effectiveness,
Rule of Law and Margin of National Appreciation, Springer Nature Switzerland
AG, (2022).
[4] Sanu R.
Paul, The Need for
Horizontal Application of Fundamental Rights in India with Reference to State
Action Doctrine in the Context of Globalisation, 2, Christ University, 90,
(2013).
[5] Robert H.
Walker. The Modern Corporate State: Private Governments and the American
Constitution. Praeger Publishers Inc (1976).
[10]
Horizontality under the Indian Constitution: A Schema – Constitutional
Law and Philosophy, https://indconlawphil.wordpress.com/ (last visited May 12,
2024).
[19] Akshit Rajpal, Enforceability of Fundamental Rights on Private Individuals, LEX
INSIGHT JOURNAL, ISSUE 1 VOL.1, (2019).
[20] Horizontal application of
Fundamental Rights: Issues and Concerns,
https://redescreation.in/horizontal-application.html (last visited May 13,
2024).
Article Information
HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS IN INDIA – NEED AND CHALLENGES
Authors: ADARSH GOGOI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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