Horizontal application of fundamental rights

Indian Constitutional Law - New Challenges · Unit II · Topic 7 of 21 · 6 min read

Vertical and horizontal, direct and indirect effect; the rights that bind private persons by their text; the Supreme Court's path from the Asiad workers case to Kaushal Kishor (2023); and the German, South African, American and British models.

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On this page

1. The concepts
2. The textual basis in Part III
3. The Supreme Court s development
4. Comparative models
5. Evaluation
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. “Examine the horizontal application of Fundamental Rights by the Supreme Court” was the first question in April 2024. The answer needs the conceptual vocabulary (vertical/horizontal, direct/indirect), the textual basis in Part III, the case law ending with the Constitution Bench in Kaushal Kishor, and the comparative models from which the vocabulary comes.

1. The concepts

A right applies vertically when it binds the State in its dealings with individuals, and horizontally when it binds private persons in their dealings with each other. Within horizontal effect, scholars distinguish:

direct horizontal effect: the right itself gives a cause of action against a private person;
indirect horizontal effect: the right does not bind the private person, but courts must interpret and develop private law (contract, tort, property) in the light of constitutional values;
state duty to protect: the State is obliged to legislate or act to protect rights against private interference, so the right reaches private parties through the State.

Stephen Gardbaum’s article “The ‘Horizontal Effect’ of Constitutional Rights” (Michigan Law Review, 2003) argued that the categories form a spectrum rather than a sharp divide. Gautam Bhatia’s The Transformative Constitution (2019) argues that the Indian Constitution was intended to address private and social domination (caste, untouchability, bonded labour), so horizontal effect is part of its design rather than an import.

2. The textual basis in Part III

Several rights bind private persons on their face.

Article 15(2): no citizen may be subjected to any disability, liability or restriction on grounds of religion, race, caste, sex or place of birth with regard to access to shops, public restaurants, hotels and places of public entertainment, or wells, tanks, bathing ghats, roads and places of public resort.
Article 17: untouchability is abolished and its practice in any form forbidden; the Protection of Civil Rights Act, 1955 and the SC/ST (Prevention of Atrocities) Act, 1989 enforce it against private persons.
Article 23: traffic in human beings and forced labour are prohibited, whoever imposes them.
Article 24: no child below fourteen may be employed in a factory, mine or other hazardous employment.
Article 21A read with the RTE Act, 2009, which imposes obligations on private schools.

The rest of Part III was written in the vertical form (“The State shall not…”), and the orthodox view after P.D. Shamdasani v. Central Bank of India (1952) was that Articles 19 and 21 give no remedy against private persons.

3. The Supreme Court’s development

People’s Union for Democratic Rights v. Union of India, 1982 INSC 67: Articles 17, 23 and 24 are enforceable against private contractors as well as the State, and the State must ensure their observance.
Vishaka v. State of Rajasthan, 1997 INSC 604: guidelines binding on all employers, public and private, to secure Articles 14, 15, 19(1)(g) and 21 against sexual harassment at work — horizontal effect through the State duty to protect, filled by the Court.
Indian Medical Association v. Union of India, 2011 INSC 388: a private medical college reserving all seats for armed forces children was held to violate Article 15(2); “shops” in Article 15(2) was read broadly to cover establishments offering goods or services, including private educational institutions.
Society for Unaided Private Schools of Rajasthan v. Union of India, 2012 INSC 169: section 12(1)(c) of the RTE Act, requiring private unaided schools to admit a quarter of their entry class from disadvantaged groups, was upheld, the State being entitled to impose Article 21A duties on private actors (unaided minority schools excepted).
K.S. Puttaswamy v. Union of India, 2017 INSC 801: the judges recognised that privacy is threatened by non-State actors as well, and that the State has a positive duty to put a data protection regime in place.
Indian Young Lawyers Association v. State of Kerala, 2018 INSC 908 (Sabarimala): Chandrachud J held that the exclusion of women of menstruating age was a form of untouchability under Article 17, which operates against private and religious bodies.
Kaushal Kishor v. State of U.P., 2023 INSC 4: a five-judge Bench held by majority (Ramasubramanian J writing) that a fundamental right under Article 19 or 21 can be enforced even against persons other than the State or its instrumentalities. The State is under a duty to protect the rights of a person even against threats from private actors. Nagarathna J dissented on this point, holding that, save where the Constitution itself says so, these rights reach private persons only through ordinary statutory and common law remedies, not by a writ under Article 32.

The open problem after Kaushal Kishor. The majority does not explain the remedy. If Article 21 binds a private employer, what can a court order under Article 32, and against whom? Does the private party get the benefit of reasonable restrictions under Article 19(2)–(6), which speak of “law” made by the State? The best answers say that the decision opens rather than settles the question, and that for now horizontal claims are most safely framed under Articles 15(2), 17, 23 and 24, or through statute.

4. Comparative models

System	Approach
Germany	Lüth (1958): basic rights form an objective order of values that radiates into private law; civil courts must interpret general clauses of the Civil Code in their light. The classic case of indirect effect (mittelbare Drittwirkung).
United States	The state action doctrine confines the Bill of Rights to government; but in Shelley v. Kraemer (1948) judicial enforcement of a racially restrictive covenant was held to be state action.
Canada	RWDSU v. Dolphin Delivery (1986): the Charter does not apply to private litigation, but the common law should develop consistently with Charter values.
South Africa	Section 8(2) of the 1996 Constitution: a provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and of the duty. Applied directly in Khumalo v. Holomisa (2002).
United Kingdom	Human Rights Act, 1998, section 6: courts are public authorities, so must act compatibly with Convention rights even in private disputes. In Campbell v. MGN (2004) breach of confidence was developed to protect privacy under Article 8 ECHR.

5. Evaluation

Arguments for horizontal effect in India: private power (employers, platforms, caste communities, private schools and hospitals) now threatens rights as much as State power; privatisation shifts public functions to private hands; and the framers already wrote some horizontal rights into Part III. Arguments against: it undermines private autonomy and freedom of contract; it hands courts open-ended power to reorder private relations; and Parliament, not the court, should decide which duties private persons bear. A defensible position is the South African one: horizontal application depending on the nature of the right, with private law developed in the light of Part III.

How this is examined

For the 16-mark question, define the concepts, list the textual horizontal rights, take the cases in order to Kaushal Kishor, set out the comparative table, and close with the remedy problem. The topic links to the Article 12 note (the shrinking State) and the privatisation-and-equality note.

Now try the real questions: Indian Constitutional Law - New Challenges past question papers.