Horizontal Application of Fundamental Rights

Posted by Legalopedia on March 17, 2021

PART I

The previous trend was that the fundamental rights can only to be violated by and enforced against the state. This was termed as vertical application of fundamental rights. The intention of our constitution makers indeed was to hold only the state capable and thus also responsible for any Fundamental right violation because the constitution they constructed gave it enormous powers to the extent, any misuse could lead to a law backed totalitarian regime. Instruments such as Fundamental rights and judicial review was put in place to keep a check on the said powers. But in time, with gradual privatisation and globalisation happening, private players have outgrown as to be capable of influencing the lives of public on par with the state’s capabilities. On the other hand, there were other articles in the constitution (15(2), 17, 21 etc) that were specifically intended to abolish certain common social practices such untouchability, caste based discrimination etc that aided explicit discrimination between private individuals rather than between state and citizens. Considering above mentioned reasons - the change in power and intention of the makers, the author coincides with this trend of the courts, holding private players capable of violating fundamental rights. This was termed as ‘horizontal application of fundamental rights’.

The extent to which the said inclusion/trend is to be executed is illustrated in the the following ways:1

  1. By expanding the scope of the definition of ‘state’ under article 12 as to include private players – Ajay Hasia vs khalid Mujib, Janet Jeyapaul vs SRM university and others
  2. By enforcing certain fundamental rights, that allow leeway to include players other than state, against private players. Art 15(2), 17, 21, 24
  3. By implementing constitutional right in private legislation - exercising judicial activism via in creating private laws in place of prior legislative vacuum – Vishakha guidelines. – Vishakha vs State of Rajasthan

PART II

To critically evaluate the statement in light of constitutional provisions and precedents, we will have to elaborate on the ways in which the trend of including private players is executed that’s mentioned above.

  1. Expanding the scope of the term state under art 12 –

    2. Article 12 states,

    “the 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.
    Court goes on to interpret in subsequent cases as to what all organisations can be considered ‘other authorities’. Supreme Court via cases such as Ajay Hasia vs khalid Mujib2 and Janet Jeyapaul vs SRM university and others3 has classified Organisations -
    • With pervasive state control, exercised through
      • entire/majority share capital being held by government
      • Loaning financial assistance to the extent of covering the entire/major expenditure
      • State conferred or protected, regulated monopoly.
    • Engaging in public function - Functions are of public importance, closely related to governmental functions.

    as state under the meaning of art 12

  2. As discussed earlier,Certain fundamental rights in accordance with the intention to abolish the mentioned social practices were constructed in a wider sense as to impose duty not only on the state but also an individuals to protect and not violate the respective rights of the other.

    3. Eg -

    • Art 15(2) - No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition...
    • Art 17 - Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.
    • Art 21 - No person shall be deprived of his life or personal liberty except according to procedure established by law. Consumer education and research centre vs UOI4 held right of the employees to health lies against private employer.
    • Art 24 - No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. MC Mehta vs State of Tamil Nadu5 held minor child employment by Sivakasi firework factories (private player) in violation of art 24.

    None of these section specifically mention who shall violate and against whom can it be enforced. Thus can be interpreted to include not only state but rather private players as well.

  3. Implementing/embedding constitutional rights in private legislation as to indirectly forbid private individuals from such right violation - Legislature frames mostly all the legislations in accordance with the fundamental rights as to forbid violation of the same by private individuals. The court cannot exercise function of legislating because of the doctrine of separation of powers. But recently judiciary has taken a step forward to legislate over a problem in absence of any legislation. This is called judicial activism and while doing this, judiciary technically enforces horizontal application of fundamental rights as it is forbidding private individuals from violating fundamental rights prior to the violation by regulating such acts through a legislation instead of enforcing the same against them after the violation has happened. An example for horizontal application via judicial activism is Vishakha vs state of Rajasthan6 where the court via providing guidelines for sexual harassment indirectly enforced a duty over private players not to violate the right to dignity and right to work in peace (without harassment) of any women under right to life (art 21).

1 Dileep Kumar Upadhayay, Horizontal application of Fundamental Rights: Issues and Concernshttp://www.madhavuniversity.edu.in/ (2014), https://madhavuniversity.edu.in/horizontalapplication.html (last visited Mar 15, 2021).

2 AIR 1981 SC 487

3 (2015) 16 SCC 530

4 1995 SCC (3) 42

5 1991 AIR 417

6 (1997) 6 SCC 241