HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS IN INDIA: WITH SPECIAL REFERENCE TO RESTRICTIVE COVENANTS By - Chitrarekha Bharadwaj
HORIZONTAL
APPLICATION OF FUNDAMENTAL RIGHTS IN INDIA: WITH SPECIAL REFERENCE TO
RESTRICTIVE COVENANTS
Authored By - Chitrarekha Bharadwaj
Abstract
Strong
private actors began to seriously threaten citizens’ fundamental rights
following the globalization of the economy. The issue of whether fundamental
rights can be enforced against private enterprises now arises. The solution is
still a mystery. Chaos has resulted from this lack of clarity. On the one hand,
the citizens’ fundamental rights are being infringed upon, and on the other,
socialism itself is under attack. These two ideas are incorporated into the
Constitution’s framework.
It
is now time to accord these Fundamental Rights a horizontal applicability so
that they can be enforced against both public and private institutions. This
paper discussed in detail the abovementioned issues as well as analyzes the
initiative taken by the judiciary towards giving these fundamental rights a
horizontal effect against the private actors.
1.
INTRODUCTION
“The aim of all political association is the preservation of the natural
and imprescriptibly rights of man”.[1]
The
fundamental rights in the Indian Constitution were inserted by the framers with
the intention to safeguard certain basic human rights from the ephemeral of
political majorities[2].
Fundamental rights are the most important human rights, and they must
always be upheld. They are referred to as the “Conscience of the Constitution”
along with the Directive Principles of State Policy.
Further, in the words of Bhagwati J., “Fundamental Rights represent
the basic values cherished by the people of this country since the Vedic times
and they are calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the
fullest extent and they weave a pattern of guarantees on the basic structure of
human rights and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions”.[3]
Further,
in the case of Moti Lal v. State of Uttar Pradesh[4],
the Court elucidated
that Fundamental Rights aim to demonstrate to all citizens and individuals the
fact that the supreme law of the land has eliminated prejudices and established
complete equality among all segments of the population in regards to those
rights that are necessary for a person’s material and moral development.
Thus, it is crystal clear
that the Fundamental Rights are significant for every individual to procure
one’s complete physical, mental, intellectual, ethical and spiritual status and
the responsibility to safeguard these rests with the State.
However, the
circumstances affecting individual rights substantially changed following the
globalization, privatization, and liberalization of India’s economy in 1991.
Now, the strong private sectors pose a serious threat to an individual’s rights[5].
Globalization has curtailed public spaces, violated human rights, and reduced
citizens to commodities in many developing nations. This emphasized the need
for a check on the authority of private businesses, similar to the one
available against the state. The process of achieving this is known as the
“Horizontal Application of Fundamental Rights”. Fundamental Rights are
expressly applicable against the state, as already discussed above.
The Indian Constitution has given the State a lot of authority and
jurisdiction as well as endowed with so many authorities that, if it so
desires, it can greatly squander them. The constitution makers recognized the
need to weigh the state with duties in to prevent it from turning authoritarian
as a solution to deal with these difficulties. The very first step in this
direction was to making State responsible in upholding the fundamental rights
of the citizens of the country.
Initially, Vertical applications of rights work well, but when
private actors were increases in tandem and the state’s negligence in
this matter, this facility becomes insufficient. These kinds of scenarios have
been addressed by the constitutional court using the horizontal application of
rights, which enables a person to defend one’s rights against other
private entities.
However, there are still several Fundamental Rights that are directly
applicable to private individuals or organizations, such as Articles 15(2),
15(5), 17, 23 and 24. Aside from these, several clauses, like Article 19 that
can be implemented through judicial activism, are ambiguous about their
enforceability.
Nevertheless, in the initial stages of the judicial system, it doesn’t
appear that the judiciary was in favor to apply such Fundamental Rights
against private entities. For instance, in A.K. Gopalan v. State of Madras[6],
the Supreme Court said that it is a fallacy to believe that constitutional
protections are intended to protect individuals, ruling that it is impossible
to enforce fundamental rights against private individuals.
The idea of vertical effect conflicts with the idea of horizontal
application. There seem to be two possible applications for rights, known as
horizontal and vertical application respectively. Horizontal rights apply
to private actors, whereas vertical rights can only be invoked against State. The
idea of horizontal application first became popular in Ireland. The court there
developed a mechanism that enables it to file a lawsuit under the “sui generis
principle” against a private person, designate that wrong as a constitutional
tort, and start enforcing the law against that person.[7]
2.
JUDICIAL INTERPRETATION
The
classical approach holds that constitutional rights are enforceable
“vertically” by the individual against the State, regulating the interaction
between the person and the State, serving as a check on Power of the state. The
conversations or transactions between private parties are not designed to be
covered by them.
However,
there has been comprehensive understanding among Constitutional Courts over
last 30 years that a strict vertical application of Fundamental Rights is not
adequate. Therefore, constitutional courts have created numerous methods for
“horizontally” applying rights, i.e., applying rights in situations when
private actors are involved. Further, the Supreme Court of India took the
opportunity in some instances to interact with the horizontal application of
Fundamental Rights and created certain types of remedies by taking the
inspiration from its counterparts like Canada, Germany, South Africa and United
States of America. However, the answers in such situations were little vague
and remained unclear.
Any horizontality standardization
must handle two problems. The very first is that who is the authority against
who remedy is being sought? However, the unrivalled purpose of horizontal
application of fundamental rights is to make the private entities liable for
the violations and this can be done by two ways –
1.
By making the private body
directly a respondent, or
2.
By indirectly attempting to get
hold of private action by way of litigation against the State.[8]
Another problem is that what is the
remedy being sought? While the second investigation follows the first in a
similar fashion, they are not the same. The contested action may be a private
one or it may be a state action that permits the particular private actions in
question.
In the light of this, take into
account the following categorization as an introduction to the
conversation, with the treatments sorted on a rough, intuitive spectrum of
vertical —> horizontal:
1.
Integration under
Article 12 - The two tests for assessing the scope
of “other authorities” under Article 12 have traditionally been used
inconsistently in Indian cases: a control test (also known as a structural
test) that examines particularly the degree regarding the control of government
on the private entity, or a functional test, which inquires as to whether the
private body is carrying out a function that is properly referred to as a State
function. This situation was discussed in Pradeep Kumar Biswas v. Indian
Institute of Chemical Engineering[9]
where the Supreme Court used “control test” and held that Article 12 is applied
only to such organizations which are “financially, functionally and
administratively controlled by or are under the control of the Government”. Here,
the private act of private entity was challenged.
2.
Positive Rights
enforceable against State – Traditionally,
fundamental rights have been thought of as being of a negative nature, i.e.,
they place restrictions on what the State can do however they do not bind it to
positive obligations to act in a certain way. Both judges and legal professors
have harshly criticized this interpretation. The case of De Shaney v.
Winnebago[10],
in which the Court ruled that there was no cause of action for a Government
agency’s irresponsible omission to stop child abuse by a custodial parent,
serves as an example of how the United States adheres to the traditional
negative approach. However, such approach has not been acknowledged globally.
Nevertheless, even after following
the traditional concept of non-interference, there is State obligation to
defend citizens from violations of fundamental rights, regardless of who might
be possible and such inability to reasonably stop private entities amounts to
waiver of that duty.
This notion was adopted by the
Supreme Court of India in the case of Vishakha v. State of Rajasthan[11],
where it determined that the State had violated the fundamental
rights of the petitioner under Articles 14, 19, and 21 by failing to enact
sexual harassment legislation to govern both public and private workplaces. The
Vishakha Recommendations serves as a temporary stand-in while the legislature
drafted a sexual harassment statute. In Medha Kotwal Lele v. Union of India[12],
which was decided fifteen years later, the Supreme Court noted that many states
in India had still not implemented the Guidelines provided in the Vishakha
case and ordered them to comply within two months. It is vital to
highlight that discrimination on both a public and private level was at issue
in Vishakha and Medha Kotwal Lele, however the respondent in both cases was the
State. In other words, the Court determined that people have rights under
Articles 14, 19, and 21 against the State, and as a result, the State is
required to govern private entities in a way that prevents any violations of
these rights.
Further, the Court many a times broadened
the interpretation of Article 21 to correct errors or issues with its actions
and the examples of it are right to livelihood developed in Olga Tellis case[13]
and right against solitary confinement in response to acts of prison wardens.[14]
Despite being a landmark decision,
Vishakha, the Court has not yet made clear the paradigm of positive
responsibilities it is applying. For example, the General Comments to the ICCPR
make explicit what the related obligations are in situations involving the
rights to food or to education. The Court would, hopefully, fill in this gap by
creating a robust and democratically and democratically supported account of
positive responsibilities.
3.
Direct Horizontality - Direct horizontality describes a scenario in which a private act of
the private party is contested using the Constitution as a benchmark.
Three explicit clauses in the Indian Constitution prohibit infringement of
horizontal rights. According to Article 15(2), no citizen may be denied access
to businesses, public dining establishments, lodging establishments, public
entertainment venues, or public resorts intended for use by the general public
on the ground of their religion, race, caste, sex, place of birth, or any
combination of these. Untouchability is against the law according to Article 17
as Dalits are still heavily exploited and discriminated against in many places.
There are some instances like while visiting the homes of upper caste people,
the people belonging to lower caste are not permitted to wear slippers, consume
food from different utensils and not allowed to use the well that is used by
the upper caste people. In this situation, holding the private person
accountable is necessary to ensure that the Constitution fulfils its intended
function while also making the Fundamental Right practically enforceable.
Article 23 forbids both bonded labor and human trafficking.
Part III of the Constitution also
contains another essential provision, Article 21, which protects a person’s
right to life and personal freedom against private individuals. In the case of Consumer
Education and Research Centre v. Union of India, the court found that the
right to health of employees is against private employers. It also emphasized
that private actors are subject to this ruling and instruction under Article 32
of the Indian Constitution.
The Supreme Court held in IMA v.
Union of India[15]
that the term ‘shops’ had a very broad meaning and did not only refer to a
physical “shop”, but to any arms-length distribution of goods or services on
the market, citing the Constituent Assembly Debates in support of its position.
In that instance, the Court determined that schools fell under the definition
of shops for the purposes of Article 15(2), and as a result, private schools
were covered by the Constitution’s anti-discrimination protections. The Court’s
rationale was based on the insight that the most prominent kinds of prejudice
in Indian society had been horizontal and had taken the form of keeping a
segment of the population out of the economic and social mainstream through
boycotts and access denials.
But this kind of thinking still needs
more development. In relation to Article 15(2), the Court has not yet provided
a well developed definition of the meaning of the word ‘shops’ aside from
Article 23. Additionally, the specific definition of the word ‘access’ has yet
to be determined. Does ‘access’ encompass all forms of economic transactions
between parties, including — to use a current dispute as an example — hiring
and firing choices, or is it restricted to circumstances when private parties
refuse to transact on the basis of a constitutionally forbidden red dot?
The case Society for Unaided
Private Schools of Rajasthan v. Union of India[16],
the Court upheld the constitutional validity of Right to Education Act, 2009
and triumph the requirement of admitting 25% of students from disadvantaged
groups in private and public schools between the ages of 6 to 14 years. This
exemplified India as a welfare State and applied Fundamental Rights on a large
scale. Thus, it is apparent that the Courts have utilized the horizontal
consequences of basic rights on occasions for advantage of the entire nation.
Hence, based on the many examples
provided above, we can deduce to a large part that the actual benefits of the
FR will not be able to be experienced by residents until the horizontal impact
is applied. Such implementations of fundamental rights oblige a person to act
as a responsible citizen and carry out their obligations honestly.
4.
Indirect Horizontality - In layman’s terms,
it means that constitutional rights, rather than immediately governing
non-state actors, passively govern them by putting duties on them via law. This
phenomenon works in two ways. Initially, where the state is obligated to defend
private individuals against other private individuals, and where the
constitution is expressly quiet on matters that are implicit for the
accomplishment of the constitution’s objectives. Secondly, whenever a court
interprets constitutional rights to private law, it indicates that
constitutional rights apply to private laws such as property law Geeta
Hariharan Case, for instance.
One classic example of indirect horizontality is the famous
case of New York Times v.
Sullivan[17],
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. Whereas in US all private law are subject to constitution for
example in New York Times case the private litigation was subject to the First
Amendment.
Thus, we can say that here instead of focusing on the
individual directly it governs all law which applies on individual In India
Indirect Horizontal application has been used in many cases prominent among
them is the Vishakha Case, where one anganwadi worker got raped by some
miscreant. In that case Supreme Court has used indirect horizontal approach by
using CEDAW guidelines against sexual harassment. In that case positive
obligation imposed on state for protection of private individual from sexual
harassments at work place. Indirect Horizontal effect in this way penetrate
into the social setup where there is legislative gap exist and decrease the
rift between public and private sector. The Supreme Court applied the Kriegler
method in the Zoroastrian Society case, which states that in the lack of any
rule forbidding any sort of prejudice, the court will support the liberty of
private individuals to contract, even if it is judged to be contrary to the
spirit of the Constitution.
Furthermore, the domain of indirect horizontal application
includes two subdivisions. The two different types of indirect horizontal
effects are strong and weak. The strong indirect horizontal effect occurs while
all private laws of the land are subjected to constitutional rights; meanwhile
the weak indirect horizontal effect occurs when all private law is not regulated
by the constitution. Canada is an excellent example of a country with lax
horizontal legislation. In Canada, the Fundamental Rights guaranteed in the
country’s constitution do not apply to private law.
It’s indeed clear that the FR has also been extended to the
private domain as a result of the indirect horizontal application of
constitutional protections that can be regarded as significant success in a
modern democracy such as India. The bearing of fundamental rights on civil
arbitration and regular private litigation is the other way in which they could
have an indirect impact on non-state actors. Often the constitutional right
does not apply to non-state actors, and hence horizontal application is not
conceivable in such instances. In certain cases, the horizontal principle is
applied indirectly, and the actions of non-state actors are ascribed to the
state, and culpability falls on the state rather than the non-state actor. Even
if they are held accountable by the state, the reach is quite limited. Judiciary
also demonstrates leniency in the subjects to resolve instances wherein
judicial system has to construe that litigation of private entities have some
form of link therewith state hence making them responsible by indirect
horizontal application.
3.
THE STRUCTURE AND UNDERLYING VALUES OF
ARTICLE 15
Article 15 has frequently been interpreted as a subset of the
broad norm of equality enshrined in Article 14[18]. As an essential
consequence to the promotion of the ideal of an equal society, the founding
fathers deemed it imperative in Article 15(1) to ban the State from imposing
any discrimination based exclusively on particular categories such as race,
religion, caste, sex, or place of birth. While Article 15(1) requires all State
officials to be colorblind to any disparity imposed "just" on the
aforementioned grounds[19].
Article 15(2) progressively integrates the prohibited
classification notion into the fabric of society by addressing private
individuals, rendering the 'State action' doctrine inapplicable while creating
a horizontal effect[20].It is asserted that
inherent in the prohibition of prejudice based on such characteristics was the
eagerness to abolish their reference: bias. It was thought that any
differentiation based on the prohibited categories had to contain prejudice to
the injury of the impoverished portion of society[21].
The fundamental value of the Article must be judged to
have infiltrated the fabric of society. The ZCHS case[22], it is argued, does not
support this fundamental value for the reasons listed:
Whereas the Court appears to
dismiss the deed restriction as a harmless device intended to protect Parsi
tradition and manner of life, there could be deeper to it than just that.
Religion is a prohibited area since secularism “is the foundation of an equitable
and forward-thinking society” on which “a unified and enduring nationhood in a
multi-religious and culturally fragmented community” may thrive, and diversity
is the base of Indian secularism[23].
Restrictive covenants, like the one
used in the ZCHS case, do little to encourage such clean ideals. On the flip,
history has taught us that polarized societies will never create a
multi-pluralist society founded on religious tolerance. The disastrous effects
of such polarization weighed heavily on the Court in Bhau Ram[24],
where the ostensible objective of the statute of vicinage pre-emption would be
to prevent intruders of a different faith, race, or caste from owning property
in the vicinity. According to Wanchoo, J., this violated Article 15 since such
separation of community into sections and isolation of newcomers from any
region cannot be regarded acceptable[25].
Regardless of whether a reasonable
justification for forming a residential society based solely on religion
prevails, the clusion of the ZCHS decision would authorize apartment buildings
to validly discriminate not just on religious grounds, but also on race, caste,
gender, and place of birth. If taken as a logical conclusion, it implies that
one must become more acclimated to surviving housing communities that are
solely for individuals of a given race, area, or caste, etc. Such practices are
detrimental to the interests of a multi-cultural community. It should also be
noted that distinctions based on prohibited categories have an extremely
separate effect than those relying on otherwise innocuous characteristics.
As in ZCHS decision, the Court
attempted to associate religious cooperative housing organizations with
cooperative housing societies specifically for vegetarians, agricultural
workers, and laborers. It is argued that the equation does not hold since
disparities depending on such innocuous criteria are not contradictory with our
constitutional ideals and thus are not against public policy. That is,
presuming that the ZCHS case logic is constrained to cooperative societies and
does not apply to every private arrangement. It is said that defining traits
primarily on these prohibited categories would only hurt the conscience of
contemporary Indian society and should be avoided.
3.1
Can the State give its imprimatur in
violation of Article 15?
3.2
The Kriegler
approach
The second limb of the reasoning
follows a different path. It presumes the existence of a private sphere in
which private entities may enter into contracts with one another irrespective
of constitutional values or their repercussions, since public policy is
unimportant in this domain. Can courts as well as other arms of government,
however, recognize and properly impose bad behaviors that the state is
constitutionally prohibited from engaging in? Based on a highly acclaimed
viewpoint of recent vintage, such private space has still been limited to
instances in which there is no recourse to law since constitutional purposes
and ideals must “pervade all laws”. As a result, no State authority could
recognize contracts as legitimately binding and enforceable, in violation of
Article 15.
In this respect, Kriegler, J. of
the South African Supreme Court’s convincing dissenting judgment in Du
Plessis v. De Klerk[26]
is obviously illuminating. In this decision, Kriegler, J. went beyond the
vertical/horizontal distinction to harmonize disproportionate intrusion with
personal liberty with the all-encompassing nature of basic rights. The crux of
the decision is that the Government, “as the producer of statutes, the
administrator of laws, and the applier of laws, is required to abide within the
four edges” of the basic rights chapter. Private interactions are thus
unaffected insofar as they are neither governed by nor resorted to and by
legislation. As Kriegler, J. expressed it eloquently:
As long as the legislation is
invoked, private entities are free to conduct their private matters as they
think fit in terms of fundamental rights and freedoms. According to the chapter, a landowner is authorized to deny
to lease an apartment to an individual because of their race, gender, or
anything; a white chauvinist can choose not to sell estate to a racial
minority; and a social club may exclude Jews, Catholics, or Afrikaners if they
so like. An employer is entitled to prejudice on racial grounds when hiring
employees; a hotelier might refuse to provide a room to a homosexual; and a
cathedral might choose not to accept bereaved of a specific color or class.
However, none of them can use the law to impose or defend their intolerance[27].
Despite its critics, this novel
technique has piqued the curiosity of academics and been praised by eminent
authors. It is also seen as a more logically consistent viewpoint than the
contentious approach of the US Supreme Court in Shelley v. Kraemer[28],
to which it bears some resemblance at first blush. A racially discriminatory
covenant that barred a black couple from buying property in a white-dominated
residential area was challenged in Shelley. In that instance, the respondents
sued the black couple, preventing them from taking possession of the property
and divesting their title to it.
The Court ruled that perhaps the
restricted agreement was legitimate and did not infringe any of the
petitioners’ constitutional rights. The US Supreme Court overturned the
previous judgment and held, presumably frighteningly, that compliance of the
deed restrictions by the State courts actually constitutes “State action” since
it possess the “clear and distinctive insignia of the State” because the
appellants were denied enjoyment of their property solely on the basis of race.
Although Shelley's verdict was
praiseworthy, the strategy of the Court has indeed been eloquently critiqued
for the untenable repercussions which may ensue in labeling court orders as
“State action”. The critique has been significant, and a convoluted body of
case law indicates that the rule in Shelley v. Kraemer may not always available
in private action.
Furthermore, because the Kriegler
method was used in the ZCHS case, it was clear that now the Registrar of
Cooperative Societies, as a statutory authority underneath the local Act, would
surely possess all of the requisite characteristics of ‘State’ for the purposes
of Article 12. As a result, even if private entities are obligated by such
provisions, the Registrar, as such an authority, cannot acknowledge as legally
enforceable a restricted agreement that violates the constitutional mandate of
Article 15.
4.
CONCLUSION
So far, we've witnessed
how the Horizontal Application of Fundamental Rights eliminates a
public-private divide in constitutional law. Constitutional rights are attacked
in the contemporary day by leading corporate actors and organizations, as well
as governmental ones. Globalization of an economy, in particular, increases the
importance of private actors while decreasing the role played by the state. As
a result, private corporations violate fundamental rights more than the state.
Therefore in regard, the contemporary Indian economy can be mentioned[29].
However, following
Globalization in 1991, the importance of private enterprises grew
exponentially. The state is now merely a facilitator, with companies wielding
the majority of power. This has effectively annihilated the socialistic ideals
that were part of the basic structural theory. Socialism advocates for
equitable resource allocation, and its decline has culminated in class
divisions in India. Therefore, in this Globalized world, “the rich get richer
and the poor become poorer”. While the Indian courts continue to recognize the
enormity of the problem, the Parliament appears to be unconcerned[30].
A purely vertical
application of Fundamental Rights may endanger India's democracy. Such issue
has indeed been globally recognized, and many governments have effectively
overcome it. The Irish Constitution, for illustration, accepts the concept of
constitutional torts. Based on this view, if a person’s fundamental rights are
violated by another, that person (victim) has the right to seek restitution
directly from the abuser. As a result, direct horizontality is accomplished and
expressly safeguarded by the constitution. Another illustration in point is
South Africa. South Africa’s Constitution strikes a balance amid direct and
indirect horizontality. In such a situation,
an invocation of the legislation by one individual in an action against
another results in the creation of Fundamental Rights based on such law.
This
is due to the fact that all statutes, either regulating the relationship
between the individual and the state or among individuals, are ultimately
governed by the Constitution. In addition, the concept of indirect
horizontality is widely used in Canada. However, the situation in the United
Kingdom remains ambiguous, as it is in India. India, like these other
countries, should adopt this principle. The Parliament should pass legislation
that allows Fundamental Rights to be enforced against commercial enterprises as
well. Given the recent violations, it is crucial that these rights be protected.
[5]V.N. Shukla, Constitution of
India, (first published in1982 10th Edn. 2003) 20
[6]
Supra Note 2
[7] Shashwat Bhutani, ‘EXIGENCY:
THE HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS’ SAO 13, <https://supremoamicus.org/wp-content/uploads/2019/08/A33.v13.pdf> accessed on 30th
October 2022
[8] Ashish
Chugh, ‘FUNDAMENTAL RIGHTS—VERTICAL OR HORIZONTAL?’ EBC, <https://www.ebc-india.com/lawyer/articles/2005_7_9.htm#Note1> accessed on
28th October 2022
[9] Pradeep
Kumar Biswas v. Indian Institute of Chemical Engineering,
[14]Dr. Dilip Kumar Upadhayay, ‘Horizontal application of Fundamental
Rights: Issues and Concerns’
MU, <https://madhavuniversity.edu.in/horizontal-application.html#:~:text=The%20Article%20which%20prohibit%20discrimination,race%20or%20place%20of%20birth> accessed 28th October 2022