Indian Supreme Court’s Judgment on ‘Horizontal Application’ of Fundamental Rights: An ‘Unconstitutional Informal Constitutional Change’?

Anujay Shrivastava

University of Cambridge

Constitutional changes to a nation-state’s written constitution, whether formal or informal, are a constantly occurring phenomenon. Roznai has previously discussed the phenomenon of ‘unconstitutional informal constitutional changes’ (UICCs) by courts. He essentially posited that courts, which as institutions lack ‘primary constituent power’, cannot create informal constitutional changes to the “essence of the core of the constitution and its basic principles.” Such informal constitutional changes would amount to an ‘unconstitutional constitutional interpretation’ resulting in an UICC. Elsewhere, I attempted to advance scholarship in this research area by mapping UICCs created by Supreme Courts in India, Bangladesh, Honduras and the USA, identifying at least ten instances where the Indian Supreme Court created UICCs while interpreting the Indian Constitution. In this article, I argue that a recent Indian Supreme Court judgment fits the category of an UICC. Thereafter, I will discern whether this UICC promotes transformative constitutionalism or rather furthers constitutional dismemberment.

On 3 January 2023, a five-Judge Constitution Bench of the Indian Supreme Court delivered judgment in Kaushal Kishor v. State of Uttar Pradesh (Kishor) which, inter alia, sought to answer the question: “Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?” Answering the question in the affirmative, the Court by a 4:1 majority (Justice Nagarathna dissenting), held that the various fundamental rights in Article 19 (freedom of speech) and Article 21 (right to life and personal liberty) of the Indian Constitution can be enforced horizontally (i.e., between an individual and a private non-state actor) using constitutional remedies to approach Indian constitutional courts’ writ jurisdictions under Article 32 (Supreme Court) and Article 226 (High Courts). 

Notably, the scheme of the fundamental rights chapter (Part III) of the Indian Constitution only envisages that citizens or individuals (as the case may be) will utilize the writ jurisdiction of courts against the state and its instrumentalities, and when read in conjunction with Article 226, against persons/authorities who perform functions of public importance. Though as Bhatia has highlighted, certain constitutional provisions like Articles 15(2), 17, 23 and 24 of the Indian Constitution do enable limited horizontal application of fundamental rights. The textual content of neither Article 19 nor Article 21 explicitly guarantees an individual any of the fundamental rights contained in the foregoing provisions against private individuals or non-state actors. However, under international human rights law, India has a positive obligation to ensure that the vast majority of its fundamental rights (which codify international legal human rights) guaranteed to citizens or individuals (as the case may be) are protected against harms from private individuals or non-state actors. 

In fact, the plural opinion of Justice Chandrachud in the nine-Judge Constitution Bench precedent in  Justice K.S. Puttaswamy v. Union of India, which is relied upon by the majority in Kishor, explicitly states that: “[…] fundamental rights… provide remedy against the violation of a valued interest by the “State”, as an abstract entity, whether through legislation or otherwise, as well as by identifiable public officials, being individuals clothed with the powers of the State” (emphasis mine). Importantly, Justice Chandrachud also clarified that interference with constitutionally recognized interests, i.e., fundamental rights, would raise a claim against the state. Conversely, an action at common law would lie against interference by non-state actors or private individuals. Nonetheless, as Justice Nagarathna has rightly highlighted in her dissenting judgment in Kishor, a writ remedy of habeas corpus may subsist against private individuals or non-state actors, when sought to enforce the fundamental right to life and personal liberty of an individual in Article 21. 

Evidently, the majority interpretation of the enforceability of Articles 19 and 21 to extend horizontal application against non-state actors or private individuals goes against the scheme of the Indian Constitution, therefore amounting to an unconstitutional constitutional interpretation as understood by Roznai. Thus, the judgment in Kishor is an UICC, which has changed the enforceable meaning of Articles 19 and 21 when read with the constitutional remedies to file a writ petition under Articles 32 and 226.

Having posited that the Indian Supreme Court has created another UICC, a further normative enquiry remains: Though it is an ‘unconstitutional’ change following Roznai’s theory, is the UICC in Kishor judgment ‘transformative’ or ‘destructive’ in nature? Previously, I have argued that the UICCs can be analyzed from the lenses of transformative constitutionalism and constitutional dismemberment. Before delving into the nature of the UICC in Kishor, it is important to add a cautionary note. Though scholars such as Albert posit that the theory of constitutional dismemberment resists the doctrine of unconstitutional constitutional amendments in the context of formal constitutional amendments, it does not do so for UICCs by constitutional courts. In fact, Albert has acknowledged the possibility that judicial interpretations can lead to constitutional dismemberments. 

As per Albert, constitutional dismemberments are “self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old”. I would argue that the judgment in Kishor normatively falls under the category of constitutional dismemberment, since it opens a pandora’s box by so radically expanding the writ jurisdiction of constitutional courts, effectively making them capable of adjudicating writ petitions against non-state actors, which completely deviates from the scheme of Indian Constitution to enforce fundamental rights against the state or its instrumentalities (save for habeas corpus writs under Articles 32 or 226 sought in conjunction with Article 21). Borrowing Albert’s definition, the interpretation in Kishor essentially creates a new foundation rooted in principles contrary to the Indian Constitution. On a pragmatic note, it will also result in flooding the Indian Supreme Court and various High Courts with writ petitions seeking to enforce Articles 19 and 21 against private individuals and non-state actors, thus tremendously increasing the judicial backlog of cases in India.

Moreover, I reject the idea that the UICC in Kishor is normatively transformative (or put simply, that it furthers transformative constitutionalism as per my theoretical framework). Previously, I posited that an UICC furthers transformative constitutionalism when it: “[…] transforms a Constitution towards an egalitarian direction; has a positive impact by transforming a society (including exercise of vigilance and keeping sight of the changing needs of society); and upholds supremacy of the Constitution; is not destructive of a Constitution (even if it substantially replaces a particular constitutional provision or procedure), yet contrarily is highly desirable and protective of its legitimacy or supremacy when viewed from lens of transformative constitutionalism.”

There are two reasons why the Kishor majority judgment fails to satisfy this conjunctive test. First, as highlighted by Justice Nagarathna in her dissenting judgment, “alternate and efficacious remedies in common law” exist which make the horizontal effect of Article 19 and Article 21 via writ jurisdiction redundant (particularly, since Indian Constitutional Law requires exhaustion of all such remedies), thus failing to contribute to the changing needs of society. Second, as previously argued, the majority judgment creates new foundations contrary to the original principles of the Indian Constitution, thus failing to “uphold supremacy of the constitution” and being a destructive yet undesirable change (especially considering that there were no circumstances posing a challenge to the legitimacy or supremacy of the Constitution that necessitated the creation of this UICC).

Though I opine that the judgment in Kishor manifests an UICC, and that this UICC is a constitutional dismemberment, it is not necessary that this view is shared by the rest of the legal community. It is my hope that future scholarship advances the study of the phenomenon of UICCs and further critically examines their nature, impact and consequences on nation-states. I equally hope that recognizing Justice Nagarathna’s erudite dissenting judgment in Kishor, a review petition is filed before the Indian Supreme Court to reverse the unconstitutional radical expansion of the horizontal application of fundamental rights in Articles 19 and 21, or alternatively, that the Indian Parliament considers passing a constitutional amendment to clarify the scope of application of fundamental rights under Part-III of the Indian Constitution, thus rectifying the judicially created unconstitutional constitutional interpretation in Kishor. To conclude, I echo Khamroi and Bhatia’s cynical yet pragmatic views that the Kishor case was an “unnecessary academic exercise”.
Anujay Shrivastava is an LLM candidate at the University of Cambridge, who is interested in constitutional theory, human rights and comparative constitutional law with particular reference to India. He is grateful to Elisabeth Perham and the Editorial Team for their comments and valuable inputs.

Suggested citation: Anujay Shrivastava, ‘Indian Supreme Court’s Judgment on ‘Horizontal Application’ of Fundamental Rights: An ‘Unconstitutional Informal Constitutional Change’?’, IACL-AIDC Blog (31 January 2023) https://blog-iacl-aidc.org/2023-posts/2023/1/31/indian-supreme-courts-judgment-on-horizontal-application-of-fundamental-rights-an-unconstitutional-informal-constitutional-change.