The Indian Constitution and Horizontal Effect

Abstract

This chapter, written for the forthcoming Oxford Handbook of the Indian Constitution, describes and analyzes the application of the Fundamental Rights provisions of the Indian Constitution to non-state actors. It begins by presenting the general framework for conceptualizing this issue within comparative constitutional law, including the distinctions between (1) direct and indirect horizontal effect and (2) strong and weak indirect effect. The main body of the chapter consists of three sections setting out and discussing the Supreme Court of India's approach to each of the main paths to horizontal effect. Part II considers the direct application of a few Fundamental Rights to non-state actors. Part III looks at the indirect regulation of non-state actors that results from the existence of positive constitutional duties on the government to protect individuals from certain actions of their fellow citizens. Part IV analyzes whether, how, and to what extent the Fundamental Rights impact private law -- especially tort and contract law -- and thereby indirectly affect the individuals who are regulated by it.

The chapter concludes by arguing that, somewhat ironically, the Supreme Court's well-known expansion of the writ petition/public interest lawsuit has had the effect of limiting the reach of Fundamental Rights into the private sphere. As a public law remedy, the writ petition tends to reinforce rather than undermine the autonomy or separateness of private law, restricting the opportunities for interaction and influence. Accordingly, there are areas in which the Supreme Court has maintained more of a public-private division in the scope of constitutional rights than some other influential constitutional courts. For this reason, the indirect horizontal effect of the Fundamental Rights, at least as they relate to private law, is in practice weak rather than strong.

Keywords: India, horizontal effect, private actors, public-private distinction, fundamental rights, non-state actors