The Horizontal Application of Fundamental Rights in India: “Kishor” (Baby) Steps in the Right Direction?

David Bilchitz & Surya Deva

University of Johannesburg/University of Reading & Macquarie University

We read with interest the recent IACL blog post by Anujay Shrivastava, ‘India’s Supreme Court Judgment on “Horizontal Application” of Fundamental Rights: An “Unconstitutional Informal Constitutional Change”?’ In that post, Shrivastava argues that the recent majority judgment of the Indian Supreme Court in Kaushal Kishor v State of Uttar Pradesh, which recognises the horizontal application of Articles 19 and 21 of the Indian Constitution, represented a change to the very essence of the Indian Constitution and so constituted an illegitimate judicial interpretation or what he terms an ‘unconstitutional informal constitutional change’. This judgment has also received critical appraisal from Gautam Bhatia. 

We disagree with much of the criticism of the majority judgment in Kishor, though we believe some aspects of Bhatia’s critique are correct. In this blog post, we argue that the judgment is progressive and transformative. This outcome should be welcomed rather than greeted with a chorus of disapproval.

Unlike typical judgments, Kishor became an abstract constitutional reference (see Bhatia for the circumstances of how this arose) in terms of which the Court had to consider whether Articles 19 and 21 of the Indian Constitution applied horizontally – that is, are actionable not just between the state and individuals but also between private entities themselves. Article 19 deals with several civil and political rights such as the right to freedom of expression, freedom of association and freedom of movement. Article 21 deals with the right to life and personal liberty, which has been interpreted expansively by the Indian Supreme Court. 

In reaching its decision, the majority in Kishor goes through a lengthy engagement with foreign case law relating to horizontality. Its discussion is not always accurate and, at times, conflates different issues (as Bhatia discusses). Having done so, the majority goes on to consider the textual provisions of the Indian Constitution and describes an evolution in constitutional jurisprudence – moving from a relatively strict state action doctrine to recent decisions where the Court has invoked these rights in the context of private actors. It concludes that Articles 19 and 21 do apply horizontally between private parties. A minority judgment by Justice Nagarathna dissented on this point and reasoned that these fundamental rights should only apply vertically – except, puzzlingly, conceding that the right to habeas corpus should apply horizontally.

Shrivastava in his blog post argues that the recognition of horizontality in relation to Articles 19 and 21 goes against the scheme of the Indian Constitution and that the Court has effectively amended the Constitution through its interpretation in an illegitimate manner. The notion of an “unconstitutional informal constitutional change” must, in our view, be limited to very extreme uses of judicial power which deform the Constitution beyond recognition (this seems to comport with Roznai’s articulation of the concept). In our view, the majority decision in Kishor falls squarely within the realm of not only legitimate but desirable constitutional interpretation.  

Both Bhatia and Shrivastava admit that there are already several fundamental rights in the Indian Constitution which apply horizontally. These include the prohibition against discrimination (Article 15(2)), the abolition of untouchability (Article 17), the prohibition against trafficking and forced labour (Article 23) and the prohibition against child labour in hazardous settings (Article 24). This clearly demonstrates that the horizontal application of fundamental rights is not inherently against the scheme of the Indian Constitution. In fact, the Indian Constitution – drafted in the late 1940s – may be regarded as pioneering in its recognition that certain rights applied horizontally, because, as Professor Mahendra Pal Singh argued, it extended the protection thereof against other centres of power in society.  

Bhatia, in his blog post, contends that the fact that some provisions expressly apply horizontally creates a presumption that other provisions do not. He argues that the majority does not engage with this argument or provide ‘any reasoning whatsoever to explain why it is departing from the obvious result of an eyeball test of Part III’s test and structure’. In fact, the majority does engage with this issue and has a different view than that taken by Bhatia about the scheme of Part III. It states that there are rights that are expressly mentioned as being directed at the State and others which inhere ‘in every individual without reference to the State’ (para 73). The presumption for the majority is the other way round: any right which is not expressly tied to the state as the duty-bearer suggests that non-state actors can be bound by it (para 74). Writing in 2005, Professor Singh argued that like Article 21, ‘several other fundamental rights such as Articles 19, 20, 22, 25, 26, 29(1), 30(1) and 32, which have no reference to state, may acquire that distinction in due course.’ In other words, the ‘constitutional silence’ about horizontality should not be equated with a ‘constitutional prohibition’ against horizontality. 

In our view, the majority adopts this view for good reasons. The rights that are expressly applicable horizontally relate to interests where individuals are especially vulnerable to the exercise of power by non-state actors particularly in light of the specific socio-economic conditions in India. By a similar logic, we can recognise that the fundamental rights protected by Articles 19 and 21 are extremely vulnerable to violation by non-state actors. For instance, in the technological era, freedom of expression is particularly vulnerable to the exercises of power by large social media companies. Moreover, non-state actors can have a serious impact on the right to life broadly construed – as the Court’s survey of its own jurisprudence demonstrates in relation, for instance, to the health and safety of workers, environmental protection, and consumer protection. The majority in Kishor quotes a judgment in which it was stated that ‘[t]he purpose of public law is not only to civilize public power but also to assure the citizen that they live under a system which aims to protect their interests and preserve their rights’ (para 76(vi) quoting Dr AS Anand J in Nilabati Behera v State of Orissa). This provides a strong justification for the horizontal application of constitutional rights. 

Indeed, a puzzling feature of the minority judgment is Justice Nagarathna’s recognition that, despite her view that in general Articles 19 and 21 were not horizontally applicable, the writ of habeas corpus applies in relation to private parties as well. She writes: ‘The reason for saying so is because an illegal detention whether by a State or a private person has a direct and identical effect on the detainee. The detainee loses his liberty and there may be a threat to his life’ (page 99). Whilst no doubt the deprivation of liberty is a severe intrusion into fundamental rights, there are many equally serious potential intrusions by private actors such as the death and widespread environmental pollution caused by the Bhopal disaster. Given this concession, it is hard to understand why Articles 19 and 21 should not also apply against private parties. 

If one follows Shrivastava’s logic (that ‘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’), then many innovative and forward-looking Indian Supreme Court decisions expanding the scope of Article 21 would have to be treated as dismembering the Constitution (for example, the introduction of a due process requirement in Maneka Gandhi v Union of India). The majority judgment in Kishor is not a radical rupture of the Indian constitutional scheme. Rather, it is a progressive decision to realise fully the potential of fundamental rights in a free market economy in which companies are performing vital societal functions that impact upon the fundamental interests of individuals (including those that have been usually performed by the state). In fact, Kishor is arguably a transformative decision even under Shrivastava’s normative framework in that it ’transforms a Constitution towards an egalitarian direction’ by offering protection to people against abuses by non-state actors. 

What is the likely effect of Kishor? One of the concerns that worries Justice Nagarathna as well as Shrivastava is that where interests of a similar nature are violated by private parties, the common law can be utilised and there is no necessity to engage the constitutional jurisdiction of the Supreme Court or High Courts. Shrivastava is worried that constitutionalising private actions will lead to the flooding of the judicial system.

We agree with Bhatia that the full effects of this decision will be worked out in concrete cases. Yet, a charitable reading of the majority (and its review of the case law) is not that it seeks to do away with the applicability of the common law. Instead, it seeks to avoid the notion that there are two parallel and inconsistent systems of law in India dealing with breaches of fundamental rights. A harmonisation – and development – of the common law in line with fundamental rights is needed. We take issue with the minority judgment’s suggestion that the common law system is invariably adequate to give effect to the rights of individuals. Although the common law has an inherent flexibility, it is often infused with a more detached and formalistic attitude towards rights without reference to power relations and vulnerabilities in the private sphere. Moreover, many people in India struggle to access the courts in common law cases due to the high cost and endemic delays. The inability of the common law to hold corporate actors accountable for the Bhopal disaster illustrates some of the limitations of relying solely on it. 

We see Kishor as mandating the development of the common law through reference to fundamental rights and the obligations of non-state actors that flow from Articles 19 and 21 (as is enabled in a number of other jurisdictions). A principle of subsidiarity will no doubt be developed to enable this: however, where the remedies offered by the common law are insufficient, a direct appeal to the fundamental rights in the Constitution and the Supreme Court will be possible. The consequent increase in the workload of courts can be managed by improving the efficiency of the case management system and introducing the necessary judicial reforms.   

To conclude, far from undermining the scheme of the Indian constitution, the majority judgment in Kishor should be welcomed in taking a significant step towards recognising that certain fundamental rights in India apply horizontally. This decision should enable many transformative possibilities for the vindication of fundamental rights in a society plagued by very unequal power relations in the private sphere as well as the increased role of private actors in the public sphere. We hope that courts as well as the government will build on Kishor to crystalise not only the concrete obligations of non-state actors regarding fundamental rights but also how to ensure access to effective remedies for victims in such cases.

David Bilchitz is a Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg and the University of Reading. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law and a Vice-President of the International Association of Constitutional Law.

Surya Deva is a Professor of Law and the Director of the Centre of Environmental Law at Macquarie University in Sydney. He researches in the areas of business and human rights, comparative constitutional law, and sustainable development.  

Suggested Citation: David Bilchitz and Surya Deva, ‘The Horizontal Application of Fundamental Rights in India: “Kishor” (Baby) Steps in the Right Direction?’ IACL-AIDC Blog (25 April 2023) https://blog-iacl-aidc.org/2023-posts/2023/4/25/the-horizontal-application-of-fundamental-rights-in-india-kishor-baby-steps-in-the-right-direction.