THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI

DISSERTATION

Submitted in partial fulfilment of the requirement for the award of the degree of

MASTER OF LAWS (LL.M)

(2023-2024)

ON THE TOPIC
CRITICAL ANALYSIS OF IMPACT OF HORIZONTAL APPLICATION OF
FUNDAMENTAL RIGHTS ON THE CONCEPT OF STATE UNDER ARTICLE 12
-WITH REFERENCE TO ARTICLES 14, 19 AND 21 OF THE CONSTITUTION

Under the Guidance and Supervision of Dr. NANDITA

NARAYAN
The National University of Advanced Legal Studies, Kochi

Submitted by:
ELIZABETH K J
Register No: LM0123007
LLM (Constitutional and Administrative Law)

1
 CERTIFICATE

This is to certify that Ms. ELIZABETH K J, Reg. No. LM0123007 has submitted her
dissertation titled, "CRITICAL ANALYSIS OF IMPACT OF HORIZONTAL
APPLICATION OF FUNDAMENTAL RIGHTS ON THE CONCEPT OF STATE
UNDER ARTICLE 12 -WITH REFERENCE TO ARTICLES 14, 19 AND 21 OF THE
CONSTITUTION" in partial fulfillment of the requirement for the award of Degree of
Master of Law in Constitutional and Administrative Law to the National University of
Advanced Legal Studies, Kochi under my guidance and supervision. It is also affirmed
that, the dissertation submitted by her is original, bona-fide and genuine.

Date: 24.06.2024
Place: Ernakulam

Dr. NANDITA NARAYAN

Guide & Supervisor
Assistant Professor NUALS, Kochi

2
 DECLARATION

I do hereby declare that the dissertation titled, “CRITICAL ANALYSIS OF IMPACT OF

HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS ON THE
CONCEPT OF STATE UNDER ARTICLE 12 -WITH REFERENCE TO ARTICLES
14, 19 AND 21 OF THE CONSTITUTION” researched and submitted by me to the
National University of Advanced Legal Studies, Kochi in partial fulfilment of the
requirement for the award of Degree of Master of Law in International Trade Law, under
the guidance and supervision of Dr. NANDITA NARAYAN, is an original, bonafide and
legitimate work and it has been pursued for academic interest. This work or any type
thereof has not been submitted by me or anyone else for the award of another degree from
either this University or any other University.

Date: 24.06.2024

Place: Ernakulam

Elizabeth K J

Reg. No. LM0123007

LLM., Constitution and Administrative Law

NUALS, Kochi

3
 ACKNOWLEDGEMENT

Working on this dissertation has been very challenging and equally interesting. I take this
opportunity to express my profound respect and deepest gratitude to Dr. Nandita Narayan,
my guide and supervisor, for her support, guidance and encouragement throughout the
course of my research work. This endeavor would not have been possible without her. She
has always respected my ideas, rectified my mistakes, and given me clear and cogent
opinions throughout this journey, which has aided me profusely in completing this
dissertation.

I would like to extend my sincere thanks to Prof. (Dr.) Mini. S, Director of Centre for Post
Graduate Legal Studies, for the support and encouragement she extended during the course.
I'm extremely grateful to the librarian and staff of NUALS library for providing me with
the necessary assistance and cooperation throughout this period. I also extend my gratitude
to the PhD Scholars at NUALS for their constant support.

Words cannot express my gratitude and love to my dear friends who have motivated and
encouraged me in this endeavor. I also extend my heartfelt gratitude to my family. This
endeavor would not have been possible without their consistent support and love.

I am thankful to all those who supported me directly or indirectly in completing this

endeavor. With genuine humility, I am thankful to The Almighty for all his uncountable
bounties and blessings. I also thank the inner voice within me for keep going despite all
hardships.

Elizabeth K J

4
 TABLE OF ABBREVIATIONS

FULL NAME ABBREVIATIONS

Association Assn.

Board of Control for Cricket in India BCCI

Corporation Corp.

Edition Ed.

Government Govt.

High Court HC

Indian Council of Agricultural Research ICAR

Institute of Constitutional and Parliamentary Studies ICPS

ICRISAT
International Crop Research Institute for the Semi-Arid
Tropics
Life Insurance Corporation LIC

Limited Ltd.

Municipality Mncp.

National Council of Educational Research NCERT

Others Ors.

Supreme Court SC

United States of America U.S.A

5
 LIST OF CASES

1) ABC v. Police Commissioner, Writ Petition (C) No. 12730 of 2005.

2) Air India v. Nargesh Mirza, 1981 AIR 1829, 1981 (4) SCC 335
3) Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722
4) Ajit Singh v. the State of Punjab, AIR 1967 SC 856
5) A K Gopalan v. State of Madras, AIR 1950 SC 27
6) All India Sainik Schools Employees' Assn. v. Defence Minister-cum-Chairman,
Board of Governors, Sainik Schools Society 1989 Supp (1) SCC 205.
7) Anwar Ali Sarkar v. State of West Bengal, AIR1952CAL150,
8) A.R. Antulay v. R. S Nayak, 1988 AIR 1531.
9) Bachan Singh v. State of Punjab, AIR 1982 SC 1325
10) Bandhu Mukti Morcha v. Union of India, (1991) 4 SCC 177
11) Binny Ltd. & Anr vs V. Sadasivan & Ors, 2005 (6) SCC 657.
12) Blum v Paretsky, 457 U.S. 991 (1982)
13) Bodhisattva Gautam v. Subra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
14) Brown v. Board of Education, 347 U.S. 483 (1954).
15) B.S. Minhas v. Indian Statistical Institute, (1983) 4 SCC 582.
16) Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
17) B.W. Devadas v. Selection Committee for Admission of Students to the Karnataka
Engineering College, AIR 1964 Mysore 6.
18) Carmichele v Minister of Safety and Security and Another, 2001 (10) BCLR 995
(CC)
19) Castle Rock v. Gonzales, 545 U.S. 748 (2005)
20) CBS v. Democratic Nat'l Committee, 412 U.S. 94 (1973)
21) Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986)3 SCC
156
22) Chander Mohan Khanna v. National Council of Educational Research and Training,
1991) 4 SCC 578
23) Charu Khurana v. Union of India, (2015), 1 SCC 192

6
24) Chairman, Railway Board & Ors. v. Chandrima Das and Ors, 2000 (2) SCC 465
25) Civil Rights cases, 109 U.S. 3 (1883).
26) Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
27) Cooper v Aaron, 1958, 358 U.S. 14.
28) DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189
(1989)
29) Dr. Janet Jeyapaul v. SRM University, (2015) 16 SCC 530
30) D.S. Nakara v. Union of India (1983) 1 SCC 305.
31) Du Plessis v De Klerk, 1996 (5) BCLR 658 (CC)
32) Exparte Virginia, 100 U.S. 339 (1879).
33) G Bassi Reddy v International Crops Research Institute, 2003 (4) SCC 225
34) Governing Body of the Juma Musjid Primary School & Others vs. Essay N.O. and
Others (CCT 29/10) [2011] ZACC 13
35) Herbert v. Lando, 441 U.S. 153 (1979).
36) Inland Waterways Corp. v. Young, 309 U. S. 517 (1940)
37) I.R. Coelho v State of Tamil Nadu &Ors, (2007) 2 SCC 1
38) Jackson v. City of Joliet, 465 U.S. 1049 (1983).
39) James v. Bowman, 190 U.S. 127 (1903).
40) Jeeja Ghosh v. Union of India, (2016) 7 SCC 761
41) Justice KS. Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1
42) Kaushal Kishor v. State of Uttar Pradesh, 2023 4 SCC 1.
43) Khumalo vs. Holomisa. 2002 (5) SA 401 (CC)
44) Krishan Gopal Ram Chand Sharma v. Punjab University, AIR 1966 Pun 34.
45) K.S. Ramamurthi Reddiar v. Chief Commissioner, Pondicherry, (1964) 1 SCR 656
46) Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995)
47) Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).
48) Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, AIR 1993 SC
935
49) Managing Director, U. P Warehouse v. Vijay Narayan Vajpayee, (1980) 3 SCC 459
50) Mandela v Felati, 1995 (1) SA251 (W).

7
51) Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh, 1985
AIR 364.
52) Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297.
53) Mohammad Yasin v. Town Area Committee, 1952 AIR 115
54) Motala & another v University of Natal, 1995 (3) BCLR 374 (D).
55) MC Mehta v. Union of India (1987) 1 SCC 395
56) M.C Mehta v. Kamal Nath, (2000) 6 SCC 213
57) Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn, (2002) 2 SCC 167
58) Naresh Mirajakar v. State of Maharashtra,1966 SCR (3) 744.
59) Navtej Singh Johar v. Union of India AIR 2018 SC 4321, AIR 2018 SC(CRI) 1169.
60) New York Times v. Sullivan, 376 U.S. 254 (1964).
61) P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537.
62) Parker v. Brown 317, U.S. 341 (U.S. 1943).
63) Parmanand Katara v. Union of India, 1989 (4) SCC 286.
64) Peterson v City of Greenville, 373 U.S. 244 (1963).
65) Peoples' Union for Democratic Rights (through its Secretary & Anr.) v. Police
Commissioner, Delhi Police H.Q.s. & Anr (1989) 4 SCC 730.
66) P.D. Shamdasani v. Central Bank of India, 1952 AIR 59.
67) P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141.
68) Plessy v. Ferguson, 163 U.S. 537 (1896).
69) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
70) Praga Tools Corporation vs. Shri C.A. Imanual, 1969 AIR 1306.
71) Potgieter en "nander v Kilian, 1996 (2) SA 27 (N)
72) President of the Republic of South Africa & Another v Modderklip Boerdery (Pty)
Ltd, 2005 (5) SA 3 (CC)
73) Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423.
74) Rajasthan Electricity Board v. Mohan Lal, AIR 1967 SC 1857.
75) Rajeev Suri v. DDA, (2022) 11 SCC 1
76) Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303.
77) Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC
489

8
78) Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1
79) Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163
80) R. C Cooper v. Union of India (1970) 1 SCC 248.
81) R.C. Poudyal v Union of India, 1993 AIR 1804
82) Riju Prasad Sarmah v. State of Assam, 2015 (7) SCALE 602, 61.
83) R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
84) Rudul Shah v. State of Bihar, AIR 1983 SC 1086.
85) Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771.
86) Rylands v. Fletcher, 1866 Law Report 1 Exchequer 265
87) Sabhajit Ternary v. Union of India, (1975) 1 SCC 485
88) Shelley v. Kraemer, 334 U.S. 1 (1948).
89) Shalini Shyam Shetty v. Rajendra Shankar, (2010) 8 SCC 329.
90) Shayara Bano v. Union of India AIR 2017 SC 4609.
91) Sheela Barse v. Secretary, Children's Aid Society, (1987) 3 SCC 50
92) Smith v. Allwright, 457 U.S. 991 (1982)
93) Sobha George Adolfus v. State of Kerala, WP(C). No. 30712 of 2015 (L)
94) Som Prakash Rekhi v. Union of India, AIR 1981 SC 221
95) S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126
96) Star Enterprises v. City and Development Corporation of Maharashtra Ltd., (1990)
3 SCC 280
97) State of W.B. v. Subodh Gopal Bose, 1954 AIR 92
98) Sukhdev Singh v. Bhagat ram (1975) 1 SCC 421
99) Surya Devi v. Ram Chander Rai, (2003) 6 SCC 675.
100) Tekraj Vasandi v. Union of India, (1988) 1 SCC 236
101) T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
102) The state of West Bengal v. Subhodh Gopal Bose and Ors., 1954 AIR 92
103) The University of Madras v. Shantabai, AIR 1954 Mad 67
104) Ujjam Bai v. State of U. P, AIR 1962 SC 1621.
105) Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC
106) Union of India v. Graphic Industries Co., (1994) 5 SCC 398
107) Union of India v. International Trading Co., (2003) 5 SCC 437

9
108) Unnikrishnan v. State of Andhra Pradesh (1992) 3 SCC 666
109) United States v. Reese, 92 U. S. 214
110) Vidya Varma v. Dr. Shiv Narain Varma, AIR 1956 SC 108
111) Virginia v Rives, 100U.S. 313(1879).
112) Vishaka v. State of Rajasthan (1997) 6 SCC 241.
113) Workmen of Food Corporation of India v. M/s. Food Corporation of India,
(1985) 2 SCC 136.
114) Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649
115) Zoroastrian Cooperative Housing Society Ltd v. District Registrar
Cooperative Societies and others, 2005 (5) SCC 632

10
 TABLE OF CONTENTS

SL. TOPICS PAGE NO.

NO
1. INTRODUCTION TO THE STUDY 14 -21
1.1 INTRODUCTION 14
1.2 STATEMENT OF RESEARCH PROBLEM 16
1.3 SCOPE AND LIMITATIONS OF THE STUDY 16
1.4 OBJECTIVES 16
1.5 RESEARCH QUESTIONS 17
1.6 HYPOTHESIS 17
1.7 RESEARCH METHODOLOGY 17
1.8 CHAPTERIZATION 18
1.9 LITERATURE REVIEW 19
2. IDEA OF CONSTITUTIONALISM, LIMITED STATE 22 - 38
ACTION AND THE STRUCTURE OF FUNDAMENTAL
RIGHTS IN INDIA
2.1 INTRODUCTION 22
2.2 THE TRUE MEANING OF THE CONSTITUTION AND 22
CONSTITUTIONALISM
2.3 LIMBS OF CONSTITUTIONALISM 27
2.4 WAVE AGAINST THE NOTION OF CONSTITUTIONALISM 29
2.5 NEW HORIZONS OF CONSTITUTIONALISM BEYOND THE 29
STATE
2.6 STRUCTURE OF FUNDAMENTAL RIGHTS IN INDIA 31
2.7 CONCLUSION 37
3. THE STATE ACTION DOCTRINE UNDER INDIAN 39 - 63
CONSTITUTION AND ITS EXPANSION

3.1 INTRODUCTION 39
3.2 THE GENESIS OF STATE ACTION DOCTRINE AND IT'S 39
IMPORT TO INDIAN CONSTITUTION

11
3.3 CONSTRUCTION AND EVOLUTION OF THE DOCTRINE IN 40
INDIA
3.4 CONCEPT OF STATE UNDER ARTICLE 12 OF THE 42
CONSTITUTION
3.5 THE ENIGMA OF LOCAL AUTHORITIES UNDER ARTICLE 42
12
3.6. THE JUDICIAL ENDEAVOR TO SOLVE THE RIDDLE OF 43
'OTHER AUTHORITIES" UNDER ARTICLE 12
3.6.1 Test of Ejusdem generis 44
3.6.2 The twin approaches 45
3.6.3 Test of Agency or Instrumentality 47
3.6.4 The Turning point - Ajay Hasia and the new functional, structural 50
and financial test
3.6.5 Deep and pervasive control test 53
3.7 THE STATUS OF THE JUDICIARY UNDER THE STATE 54
CONCEPT
3.8 PRIVATE PARTIES DOING PUBLIC FUNCTION – A 55
BACKDOOR ENTRY FOR PRIVATE ACTIONS TO INVOKE
ARTICLE 32 AND 226
3.9 CONCLUSION 61
4. ARTICLES 14, 19 AND 21 OF THE CONSTITUTION AND 64 - 85
THE QUESTION OF HORIZONTALITY
4.1 INTRODUCTION 64
4.2 HORIZONTALITY AND VERTICALITY – THE TWO POLES 64
4.3 HORIZONTAL APPLICATION OF ARTICLE 14, 19 AND 21 66
4.4 KAUSHAL KISHOR AND THE CURRENT DEBATE 81
4.5 CONCLUSION 84
5. COMPARATIVE STUDY OF HORIZONTALITY 86 - 104
APPROACH IN SOUTH AFRICA, THE US AND INDIA
5.1 INTRODUCTION 86

12
5.2 USA 86
5.2.1 The structure of the Bill of Rights 86
5.2.2 The state action doctrine and its expansion 88
5.2.3 Embracing private actions under the state action doctrine 95
5.3 SOUTH AFRICA 95
5.3.1 The structure of the Bill of Rights 95
5.3.2 Horizontality under the South African Constitution 98
5.4 DRAWING A COMPARISON WITH INDIAN APPROACH 100

5.5 CONCLUSION 102

6. CONCLUSION AND WAY FORWARD 105 - 111
6.1 SUMMARY 105
6.2 RECOMMENDATIONS 109
7. BIBLIOGRAPHY 112 - 114
APPENDIX 115

13
 CHAPTER 1

1.1 INTRODUCTION

Civil liberties of an individual have an epitome value in any country. These civil liberties
and individual rights are provided under Part III of the Indian Constitution. The
Constitution is not merely a superior norm or charter of rights, but it should be viewed as
the protector of the rights of the people and a correlative institutional arrangement that
would restrict arbitrary power over the people.1 However, all powers are not limited or
restricted by the Constitution. The object of the Constitution is to limit the state
interventions over these rights, thereby upholding Constitutionalism and ensuring a
"limited government.2 Thus, fundamental rights under Part III are enforceable against state
action. This approach is called verticality. However, there are constitutions that recognize
the enforcement of fundamental rights against State and private actions. This approach is
called horizontality.

Part III of the Constitution is structured in such a way as to limit state action. Part III of the
Constitution comprises three main components, i.e., Article 12 provides the definition of
"State," Article 13 defines "law," and Articles 14 to 32 enumerates various fundamental
rights. Articles 12 and 13 have great significance in the enforcement of fundamental rights.
They answer the question of who has fundamental rights and against whom they can be
addressed. The definition of State is given under Article 12 of the Constitution for the
application of provisions contained in part III. The constitutional assembly debates clearly
narrated that Article 12 was incorporated to fix the boundary of Part III rights and to
inscribe the state action doctrine in Part III enforcement.3India has been following a vertical
approach to fundamental rights enforcement from the inception of the concept of "state"
under Article 12.

Going by the definition of State under Article 12, Government and the Parliament of India,
the Government and the Legislature of each of the states, along with all local or other

1
Robert P. Kraynak, Tocqueville's Constitutionalism, 81(4) The American Political Science Review 1175
(Dec., 1987)
2
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56(4) The American Political Science
853(1962)
3
Constituent Assembly Debates, Vol. VII, 610-611 (25-11-48).

14
authorities functioning within the territory of India or under the control of the Government,
are explicitly within the ambit of the State. However, the definition of State is not
exhaustive, and it has been ever-growing. The term "other authorities" widened through
various tests and interpretations propounded by the Judiciary, from the test of
instrumentalities, test of agency of government, impregnation with Govt character, test of
enjoyment of monopoly status conferred by state, deep and pervasive control test to the test
of nature of duties/ functions performed by an authority/person. Thus, enforceability
criteria shifted from "Who the respondent was" to "Nature of duties/ functions performed."

With the advent of time, the traditional state power centers have lost power, and new private
actors have acquired power. This gave rise to the question of whether constitutional
mandate should be applied to private actors. To deal with the question, the scope of
fundamental rights in India widened in such a way that even private parties doing public
functions were covered under the state action doctrine. In exceptional cases, the Judiciary
has applied horizontality on certain fundamental rights, including Articles 15, 17, 23, and
24, where the right was not explicitly addressed to the State as such. However, if we track
the cases dealing with fundamental rights violations under Articles 32 and 226, it is visible
that the Judiciary has absorbed horizontality in varying degrees in a case-to-case fashion.

The Judiciary tried to enforce fundamental rights against private actors in different ways.
In certain cases, private actors are bound by the constitutional mandate as they are entities
incorporated within the wide ambit of state definition under Article 12. In certain cases,
fundamental rights are enforced on private actors through the State's positive obligation to
regulate these actors, and in certain cases, the common law or statutory law is read in
adherence to the constitutional norms. This is the indirect application of horizontality. In
certain cases, the Judiciary doesn't even look into the identity of the actor and bluntly
invokes writ jurisdiction. Thus, the trend has shifted in such a way that direct horizontality
is cast on private actors violating core fundamental rights, including Article 19(1)(a) and
Article 21 in the recent judgment of Kaushal Kishor v. State of Uttar Pradesh,4 whose
authority and sanctity the researcher doubts and criticizes in this work.

4
Kaushal Kishor v. State of Uttar Pradesh, 2023 4 SCC 1.

15
Though horizontality was initially used in limited situations, the recent decision has marked
a different trajectory that is alien to the established state action doctrine in India. The entire
jurisprudence of fundamental rights in India has turned topsy-turvy, with a drastic shift
from one extreme position (no enforceability of Articles 19 and 21 against private actors)
to another (Articles 19 and 21 enforceable against private actors). This is a direct threat to
the "state doctrine" enshrined under Article 12 of the Constitution.

This research aims to see the effect of the new track of horizontal application of Articles
14, 19, and 21 on the state action doctrine enshrined in Article 12. The study also attempts
to compare the same with other countries like South Africa and the U.S., where
horizontality is applied to varying degrees.

1.2 STATEMENT OF RESEARCH PROBLEM

There is a significant lack of clarity in the way in which the Indian Supreme Court has
invoked horizontality. Part III of the Constitution is enforceable against the State, enshrined
under Article 12, and it is of great significance. India has incorporated Article 12 to clearly
define the boundary of the State against which Part III can be enforced. The Judiciary has
widened its boundary to recognize even private actors in exceptional circumstances. But
lately, the Judiciary has pronounced that Articles 14, 19 and 21 can be applied horizontally
against pure private actions. This is against the established structure and jurisprudence of
Part III. Judicial assumptions like the one in Kaushal Kishore puts the very purpose and
essence of Article 12 into question.

1.3 SCOPE AND LIMITATIONS OF THE STUDY

This study focuses purely on how the Judiciary deals with cases of fundamental rights
violations and against whom these rights are enforced. The study also focuses on
ascertaining the significance and scope of Article 12 of the Constitution and to what extent
private actions can be enforced under Part III. For the purpose of analyzing the trend of the
Judiciary with respect to enforcement of Part III, Articles 14, 19 and 21 are only focused.
A comparative analysis is also made with respect to the U.S. and South Africa, which
represent the two edges of the spectrum in the horizontality and verticality debate. The

16
study also attempts to suggest the best approach suitable for India, especially from a
comparative perspective.

1.4 OBJECTIVES

1. To understand and analyze the growth of the horizontal application of fundamental rights
in India.

2. To analyze its impact on the idea of State Action Doctrine.

3. To see if it is a tectonic shift from the established system of jurisprudence and indicate
whether it is a positive or negative shift.

4. To study how the horizontal application of fundamental rights affects Constitutionalism.

5. To study whether horizontality is applied when it comes to fundamental rights violations

coming under Article 226 of the Constitution.

6. To suggest the way ahead.

1.5 RESEARCH QUESTIONS

1. Can horizontality be applied to Articles 14, 19 and 21 of the Constitution?

2. What is the impact of horizontality on the State Action doctrine enshrined in Article 12
of the Constitution?

3. Is horizontality applicable to writ petitions on fundamental rights violations covered

under Article 226 of the Constitution?

4. What would be the impact of horizontality on private disputes?

1.6 HYPOTHESIS

Horizontality cannot be applied to fundamental rights under Articles 14, 19 and 21 as it has
a negative impact on the State Action Doctrine and is against the principles of limited state
action and Constitutionalism instilled in Indian jurisprudence.

1.7 RESEARCH METHODOLOGY

17
The Research methodology incorporated is Doctrinal, Analytical, critical and comparative
in nature. The primary sources of data would include statutes and case laws, and secondary
sources would include books, journals, committee reports, newspaper articles, online
resources, etc., which are available relating to the concerned study.

1.8 CHAPTERIZATION

CHAPTER 1 – INTRODUCTION

The first chapter gives a brief picture of the topic under study, the statement of the problem,
the scope and limitations of the study, research questions, objectives of the study,
hypothesis, Research methodology adopted for the study and literature review.

CHAPTER 2 - IDEA OF CONSTITUTIONALISM, LIMITED STATES ACTION AND

THE STRUCTURE OF FUNDAMENTAL RIGHTS IN INDIA

This chapter delves into the true meaning of the Constitution and Constitutionalism. It also
explores the concept of limited state action, the structure of fundamental rights and the
jurisprudence behind Part III of the Constitution.

CHAPTER 3 -THE STATE ACTION DOCTRINE UNDER INDIAN CONSTITUTION

AND ITS EXPANSION.

This chapter examines the genesis of state action doctrine, its import to the Indian
Constitution and its evolution in India. The chapter also comprises a detailed analysis of
Article 12 of the Constitution and its expansion through various cases. Further, it
exhaustively looks into the judicial reasonings and tracks it for the purpose of
understanding the scope of the State under Article 12. Further, the scope of Articles 32 and
226 is also analyzed to see if state action doctrine is equally applicable in both.

CHAPTER 4 - ARTICLES 14, 19 AND 21 OF THE CONSTITUTION AND THE

QUESTION OF HORIZONTALITY

This chapter thoroughly examines the scope of Horizontality in Articles 14, 19 and 21.
Through a catena of judgments, the author tries to draw a conclusion that there is a

18
significant lack of clarity in the application of horizontality. The chapter also critiques the
recent Judgment of Kaushal Kishor5 and discusses its aftermath.

CHAPTER 5 - COMPARATIVE STUDY OF HORIZONTALITY APPROACH IN

SOUTH AFRICA, U.S., AND INDIA.

This chapter facilitates a comparative understanding of horizontality. The structure of the

Bill of Rights and the way in which the Bill of Rights is enforced in the U.S. and South
Africa is looked into. Also, a comparison is made with the Indian Approach. It also focuses
on how the Judiciary in the U.S., South Africa and India have embraced private actions
under the constitutional mandate.

CHAPTER 6 - CONCLUSION AND RECOMMENDATIONS

The final chapter summarizes the whole topic and suggests the best way to be adopted by
the Indian Judiciary to enforce part III and uphold constitutional values and
Constitutionalism. The author also attempts to give recommendations for the way ahead.

1.9 LITERATURE REVIEW

1. Sujith Nair, Horizontal Application of Fundamental Rights: Benign or Misconceived? 7

CALJ 76 (2023)

In this article, the author examines different models pertaining to the horizontal application
of fundamental rights across the world. The author also examines direct, indirect
horizontality, and positive obligations and how they have been incorporated by different
countries. The author also explains the Indian Jurisprudence of part III and warns about
potential issues arising from expanding fundamental rights applicability in India.

2. Stephen Gardbaum, The "Horizontal Effect" of Constitutional Rights, 102 MICH 387,
(2003).

The article proceeds with an analysis of existing theories and jurisprudence on vertical and
horizontal application of the Bill of Rights in comparative constitutional law and illustrates
its practical application in Ireland, Canada, South Africa, Germany, and the United

5
Kaushal Kishor v. State of Uttar Pradesh, 2023 4 SCC 1.

19
Kingdom. It further concentrates on the position of law in the United States with special
reference to the state action doctrine and how the Judiciary addressed horizontality. The
author's input in the discussion favors the horizontal approach to constitutional rights.

3. Gautam Bhatia, Horizontality under the Indian Constitution: A Schema, INDIAN

CONSTITUTIONAL LAW AND PHILOSOPHY (May 24, 2015)

The author delves into the concept of horizontality and points out the significant lack of
clarity about the different ways in which the Indian Supreme Court has invoked
horizontality and the constitutional questions that need to be resolved in such cases. The
author vividly explained the vertical approach and highlighted its demerits as well. A
comparative analysis of horizontality is the key highlight of the article. This essay is an
attempt to schematize the way in which the Indian Judiciary has invoked horizontality and
also highlights some of the key unresolved issues in jurisprudence.

4. Shameek Sen, Transformative Constitution and the Horizontality Approach: An

Exploratory Study, 10 INDIAN J.L. & JUST. 141 (2019).

The author addresses the inherent limitations of the peremptory vision of Fundamental
Rights as a negative right imposing a constraint on the State and advocates a positive duty-
based approach in order to fulfill the constitutional visions of a transformed society. The
article vividly explains the evolution of "other authority" under Article 12. This paper also
explores the possibility of such horizontality in areas like free speech, spaces where the
private non-state players play a significant role in imposing regulations above and over the
state regulations. It also incorporates a comparative analysis of horizontality in different
countries.

5. Gandhi, Pathik, De-Constructing the State Action Doctrine in India: A Comparative

Analysis (October 7, 2009).

The author critically examines the concept of the state action doctrine within the Indian
legal framework. In this paper, the authors have examined the vertical approach taken by
the Indian Supreme Court and advocated two possible alternatives that afford the protection
of fundamental rights against non-state actors. Gandhi's paper contributes to the ongoing
discourse on constitutional law by providing a detailed critique of the state action doctrine

20
as it stands in India. By comparing it with other jurisdictions, the paper highlights potential
areas for reform and adaptation to ensure robust protection of fundamental rights in an
evolving socio-political landscape.

6. Chirwa, D.M., The horizontal application of constitutional rights in a comparative

perspective, AJOL Law, Democracy & Development, pp.21-48.

It explores the evolving recognition and application of the Bill of Rights in private
contexts. It critically analyses the position of state action doctrine in the U.S. and its
evolution through various cases. It also delves into the horizontal approach in Canada,
Germany, Ireland and South Africa. This article suggests that comparative constitutional
jurisprudence does not strictly follow the traditional vertical approach that envisages
private actions as being beyond the scope of constitutional rights. Rather, it substantiates
and supports the horizontal application of the Bill of Rights.

21
 CHAPTER 2

IDEA OF CONSTITUTIONALISM, LIMITED STATE ACTION AND

THE STRUCTURE OF FUNDAMENTAL RIGHTS IN INDIA

2.1 INTRODUCTION

To look into the concept of Horizontal application of fundamental rights and to see if it is
taking a step further or a reverse turn in Indian jurisprudence, one must have clarity on
some basic questions like why we need a constitution and what are the telos behind the
Constitution. Further, what is the true meaning of Constitutionalism, and how are
fundamental rights framed under the Indian Constitution? The question of who has the
fundamental rights and against whom it can be addressed should also be discussed to
clearly understand the horizontality and verticality of fundamental rights under the
Constitutional regime. This chapter is an attempt to find answers to the above questions.

2.2THE TRUE MEANING OF THE CONSTITUTION AND

CONSTITUTIONALISM

Sir John Dalberg Action said, "Power corrupts, and absolute power corrupts absolutely."6

Every government needs power to govern the nation, but unfettered power cannot be given
to the government. It will lead to a situation where the State has unlimited entry to an
individual's private sphere, creating an authoritarian government as Hobbes envisioned in
his book "Leviathan." In such a situation, the rights and freedoms exercised by the
individual are arbitrarily restricted by the State. Civil liberties of an individual have an
epitome position in any nation. There should always be a mechanism to limit the action of
the State or the government over fundamental individual rights. At this juncture, one must
look into the object of having a Constitution. Why we need a constitution was a constant
question in various instances. Over the years, many have tried defining the Constitution

6
Ruzela Da Cruz, Constitutionalism in India: Essentials, Components, and Importance, 2 JUS CORPUS L.J.
512 (2022).

22
beyond identifying it as a superior norm. Some believe that it gives rights to the citizens.
For some, it formalized the functions of the State, and for others, it gave power to different
State organs. Ancient Roman natural law theorists viewed the Constitution as a "higher
law." But later, we can see a shift in this idea of "higher law" to something more precise
than a higher law. 7They mean the constitution as a tool for institutional restraints on power
that protect private rights, such as the separation of powers, electoral accountability, or
systems of checks and balances.8 Looking into British, American and European
Constitutions that came up very early in the 19th century, one can say that the Constitution
is just a means, and what matters is the ends or the object it carries. 9 The purpose of all
these Constitutions is identical.10The Constitution was described as the garantiste or the
protector of the rights of the people by legal jurist Sartori. Garantism is the essence of
constitutionalism. People adore the Constitution as it was a fundamental law or set of
principles and a correlative institutional arrangement that would restrict arbitrary power
and ensure a "limited government."11 Thus, the Constitution upholds Constitutionalism.

Constitutionalism put forth the idea of limited state action, which is far beyond the four
corners of a written constitution. Legal scholars like McIlwain and Corwin interpreted
Constitutionalism in a broader sense to limit the power of the State by law.12 Even without
a constitution, Constitutionalism should prevail in any nation. Thus, the written
Constitution is merely envisaged as a tool to restrict the action of the State. One can trace
the origin of Constitutionalism to the idea of government put forth by John Locke in his
book Two Treatises of Government (1689 CE). According to him, through a social contract,
citizens surrendered some of the rights to the government and the core rights, including the
right to life, liberty, and property, which the people retained. The state intervention on those
core rights was unwarranted. Thus, the social contract not only pioneered the formation of
a government and a society but also set a limit on the government hence formed. In the

7
Robert P. Kraynak, Tocqueville's Constitutionalism, 81(4) The American Political Science Review
1175(1987).
8
Id at 2
9
: Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56(4) The American Political Science
Review 853(1962).
10
Id
11
1d
12
Robert P. Kraynak, supra note 2

23
same way, the Constitution, being the modern social contract, not only determines the
functions of different government organs but also sets boundaries for the state action or the
functioning of the State should be in adherence to the Constitution. Constitutionalism
prioritizes individual rights and liberty.13

A clearer view can be grabbed from the words of the Founding Father of the U.S.
Constitution, James Madison. He states, "In framing government which is to be
administered by men over men, the greatest difficulty lies in this, you must first enable the
government to control the governed, and in the next place oblige it to control itself."14 This
reflects that the vision of the Constitution is not only controlling the people but also
controlling the government itself. Thus, Constitutionalism is the antithesis of
arbitrariness.15 Constitutionalism as a philosophy affirms that the Constitution is supreme
in reinforcing and ushering governmental powers so that society's social, political, and
economic aspirations are fulfilled. The dynamic relations between citizens and the State,
between various layers of government and amidst the organs of the government, provide
hierarchical and horizontal ties of control so that the power holder is made accountable. It
engages with institutions of government, the rights of individuals and groups, and the
formulation of limitations on institutional power.16 Aristotle says every good government
has to be constitutional, which means limited government.17

Dieter Grim, in his chapter 'The Achievement of Constitutionalism and its Prospects in a
Changed World,' in the book The Twilight of Constitutionalism, eds. Petra Dobner and M.
Loughlin (2010) 291. addresses Constitutionalism as an achievement. The words are
quoted as follows;

"Constitutionalism deserves to be called an achievement because it rules out any absolute

or arbitrary power of men over men. By submitting all government action to rules it makes
the use of public power predictable. It provides a consensual basis for persons and groups

13
Bhagyashri Neware, Constitution and Constitutionalism: A Study Perspective of India, 4 INDIAN J.L. &
LEGAL RSCH. 1 (2022).
14
DICEY A.V., INTRODUCTION TO THE LAW OF THE CONSTITUTION (10 th ed. 1959)
15
Id
16
Beverly Baines, Daphine Barak-Erez, and Tsavi Kahana (Ed), Feminist Constitutionalism: Global
Perspectives 11(4) International Journal of Constitutional Law 1124(2012)
17
Md. Saif Ali Khan & Sharafat Ali, Transformative Constitutionalism: Contemporary Issues and Challenges
in India, 3 INT'l J.L. MGMT. & HUMAN. 1411 (2020).

24
with different ideas and interests to resolve their disputes in a civilized manner. And it
enables a peaceful transition of power to be made. Under favorable conditions it can even
contribute to the integration of a society. Constitutionalism is not an ideal type in the
Weberian sense that allows only an approximation, but can never be completely reached.
It is a historical reality that was in principle already fully developed by the first
constitutions in North America and France and fulfilled its promise in a number of
countries that adopted in this sense."18 Thus, from an Indian perspective,
Constitutionalism was an end goal of the constitution drafters, and it is still a work in
progress.

In R.C. Poudyal v Union of India,19 the Supreme Court opined that the mere existence of
a constitution does not guarantee Constitutionalism. The political maturity and traditions
of the people give meaning to a constitution that would otherwise embody political hopes
and ideals. In the case of S.R. Chaudhuri v. the State of Punjab,20 the Supreme Court
again reiterated that the mere existence of a constitution alone does not ensure
Constitutionalism. Hence, a constitution needs to have certain principles and qualities that
impose limitations on the power of the government.21 In State, (NCT of Delhi) v Union of
India,22 the Supreme Court observed that the essence of Constitutionalism is to control
power centers by distributing powers among several state organs in a way that each of them
control one another and cooperate in formulating the will of the State. Thus, the distribution
of power between different government organs and the maintenance of a check and balance
system are parameters that limit the state's power. In I.R. Coelho v State of Tamil Nadu
&Ors,23 the Supreme Court observed that the principle of Constitutionalism is a legal
principle that requires the exercise of control over the State to restrain it from meddling
with the democratic principles, which includes the protection of Fundamental Rights.
Further, in Rameshwar Prasad (VI) v. Union of India,24 the court observed that

18
Dieter Grimm, The Achievement of Constitutionalism and its Prospects in a Changed World, in The
Twilight of Constitutionalism? 3 (Petra Dobner & Martin Loughlin eds., Oxford Univ. Press 2010),
https://doi.org/10.1093/acprof/9780199585007.003.0001.
19
R.C. Poudyal v Union of India, 1993 AIR 1804
20
S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126
21
Id
22
State, (NCT of Delhi) v Union of India, (2018) 8 SCC 501
23
I.R. Coelho v State of Tamil Nadu &Ors, (2007) 2 SCC 1
24
Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1

25
Constitutionalism abhors absolutism, whereby the subjective satisfaction of an authority is
substituted for objectivity based on Constitutional principles.

Further, in Rajeev Suri v. DDA25, the court observed that in every discourse involving the
state and a citizen, the question of Constitutionalism is evident, and its meaning is very
complex as many have given different meanings to it. Some have correlated it with
fundamental concepts of the rule of law and judicial review as envisaged in the
Constitution. In contrast, others have considered it a radical idea to transform the
Constitution over and above its true import. For some, judicial supremacy over the
functioning of the executive and legislature is considered essential to
Constitutionalism.26 For others like Prof. Barendt, separation of power is the spirit of
Constitutionalism.27 The court observed that "Constitutionalism, therefore, is a relative
concept which envisages a constitutional order wherein powers and limits on the exercise
of those powers are duly acknowledged. It is a tool used to reach up to the ultimate goal of
constitutionalisation of governance and cannot be deployed to present an alternative model
of governance. We must state that it would not only be absurd but also fraught with dangers
of overreach and ambiguity if subjective principles of interpretation are applied by
detaching them from the textual scheme of the Constitution, particularly when the textual
scheme lays down an elaborate structure of administration. To do so would be to drag a
duly elected Government on the edges as it would be under constant fear of being adjudged
wrong on the basis of undefined principles that appeal to "three gentlemen or five
gentlemen sitting as a Court." And what will suffer is a public interest in the form of public
exchequer including sovereignty of the nation."28 Further, it was envisaged that
Constitutionalism is a work in progress that will fill blood and flesh to the existing scheme.
It has stood the test of constitutional validity and not nudge with the scheme of the
Constitution itself.29

Constitutionalism ensures that the relationship between those governing and those
governed is enforced. Baxi defines Constitutionalism: "Constitutionalism, most generally

25
Rajeev Suri v. DDA, (2022) 11 SCC 1
26
Id
27
E. BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 6 (Clarendon Press, Oxford 1998)
28
Rajeev Suri v. DDA, (2022) 11 SCC 1
29
Id

26
understood, provides for structures, forms, and apparatuses of governance and modes of
legitimation of power. However, Constitutionalism is not all about governance; it also
provides contested sites for ideas and practices concerning justice, rights, development,
and individual associational autonomy. Constitutionalism offers narratives for both rule
and resistance.30

Academicians like Douglas Greenberg opined that Constitutionalism is committed to

setting up limitations on ordinary political power; it tries to balance the power and
intervention of state and individual rights and liberties. Further, it inates from the cultural,
historical and social background of a Nation and resides in public consciousness.
Therefore, from the above words, Douglas Greenberg suggests that if the power given to
the State conflicts with the citizens' fundamental rights, the rights of the citizens should
prevail, and they cannot be eclipsed under unreasonable state power.

Further, D. D Basu put forth that Constitutionalism strives to protect the democratic
principles upon which a nation is built and limit governmental power from eroding it. These
democratic principles and values include the protection of fundamental rights. The tradition
of written Constitutionalism makes applying concepts and doctrine of unwritten living
Constitution possible. The Constitution is a living heritage; you cannot destroy its
identity.31 Thus, Constitutionalism focuses on institutional mechanisms to limit, divide and
balance the powers of the government.32 This mechanism is attained through the institution
of the Constitution, and the different modes incorporated to uphold Constitutionalism are
discussed below as Constitutionalism's limbs.

2.3 LIMBS OF CONSTITUTIONALISM

The Constitution has built a complex mechanism to uphold Constitutionalism. Separation

of power, check and balance system of governance, judicial review, and Fundamental rights
are all incorporated to safeguard the constitutional values and limit the power of the

30
Vrinda Narain, Postcolonial Constitutionalism in India: Complexities and Contradictions, 25 S. Cal.
Interdisc. L.J. 122, 123 (2016).
31
1 DD BASU, SHORTER CONSTITUTION OF INDIA 15(Justice AR Lakshamanan, Justice Bhagabati
Prosad Banerjee & V.R. Manohar, 14th ed. 2009)
32
Robert P. Kraynak, Tocqueville's Constitutionalism, 81(4) The American Political Science Review
1175,1177 (1987).

27
government. An essential component of Constitutionalism is the popular sovereignty. This
implies that the ultimate sovereignty vests with the people. Another structure is the
fundamental rights and directive principles. A clear boundary is drawn under the
fundamental right to limit the State's action over individual rights.

Separation of power and a check/ balance system is the essence of our Constitution.
Constitutionalism requires that power is not concentrated in only one organ of the State. It
requires that power be divided across all three state organs: the legislature, executive, and
Judiciary. If power is concentrated in only one organ of the State, then this may lead to
abuse of power, tyranny, and even dictatorship.33 Another limb is the independent Judiciary
and its power of Judicial review. The Judiciary enforces and protects individual rights.

The rule of law should prevail in Constitutionalism. As propounded by A. V Dicey, the law
should have supremacy, and no one should be above the law, not even the government.
Therefore, the government should rule according to the rule of law, not their whims and
fancies. Liberty and discretion are two sides of the same coin. Individuals can have
maximum liberty only if the government's discretion is exercised objectively and
unarbitraryly.

The basic structure of the Constitution is, in essence, the body of Constitutionalism,
examining various cases from Kesavantha Bharathi to I. R Coelho, most of the components
enumerated above have been elevated as a basic structure feature. Thus, the Judiciary
devised the concept of the basic structure itself to limit the power of the government and
prevent the destruction of the Constitution itself. As observed in Kesavantha Bharathi, Our
Constitution is not a mere political document. It is essentially a social document. It is based
on a social philosophy. Thus, the Basic structure should be preserved to attain
Constitutionalism. However, there are opposing views that suggest changes to the
Constitution to make it a living constitution and not to stick to the stagnant ideas of the
constitution makers, which could not be adapted in contemporary society. One such debate
is moving beyond the state concept, by which fundamental rights are enforceable vertically

33
Ruzela Da Cruz, Constitutionalism in India: Essentials, Components, and Importance, 2 JUS CORPUS
L.J. 512, 514(2022).

28
and horizontally on private actors who are rampantly interfering with other fundamental
rights.

2.4 WAVE AGAINST THE NOTION OF CONSTITUTIONALISM

Constitutionalism is not an unopposed concept. Theorists like Hobbes and Austin thought
that limited government is incoherent.34 Austin's view of unlimited power is deeply rooted
in his popular sovereignty idea.35 He believes that the ultimate sovereignty resides with the
people. However, it should be understood that the concept of this popular sovereignty and
power exercised by the government should be distinguished to understand the real meaning
of limited government.

The British Parliament, being the supreme authority or sovereign, is an example of how
this idea of unlimited power for the government was misused over the years. Further, today,
the public/ private distinction is getting blurred, and more private actors are engaged in
those activities that were once the monopoly of the State. Moreover, in the widening global
economy, there is less manifestation of the political sovereignty of the State, which has led
to growing concerns against the doctrine of Constitutionalism being an inadequate check
on political power as it only focuses on the roles of states.36 Globalization has changed the
political, economic and social face of the State. Non-state entities have occupied the fields
once occupied by the State, and therefore, today, there is a need to rethink the State's claim
to Constitutional exclusivity. New horizons of Constitutionalism have emerged, which
shadow the traditional approach of Constitutionalism, amalgamated with the state alone.

2.5 NEW HORIZONS OF CONSTITUTIONALISM BEYOND THE

STATE

Today, globalization has posed the greatest threat to the traditional concept of
Constitutionalism, which is linked to the State. Whether the state-centric unitary
Constitutionalism holds good today is a persistent question that many scholars raise. It is

34
W. Waluchow and Dimitrios Kyritsis, Constitutionalism, STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (June 21,2024), https://plato.stanford.edu/entries/constitutionalism/
35
Id
36
Doris Matu, Improving Access to Justice in Kenya through Horizontal Application of the Bill of Rights and
Judicial Review, 2 STRATHMORE L. REV. 63, 67 (2017).

29
argued to rethink Constitutionalism beyond the State. With the dilution of the concept of
sovereignty and State, theories of Constitutionalism beyond the State are evolving. They
argue that non-state forms of political authority should also be considered sites of
Constitutionalism.37 Neil Walker's supranational Constitutionalism, Gunther Teubner's
societal Constitutionalism, and the new Constitutionalism developed by Stephen Gill are
milestones in the new journey of Constitutionalism beyond the State.38

SUPRANATIONAL CONSTITUTIONALISM – As theorized by Neil Walker,

supranational Constitutionalism tries to cut the imaginary thread attached to
Constitutionalism, i.e., state actors. He proposes that with the decentralization of economic,
commercial, political, social and other activities, global entities like the EU, WTO, United
Nations and Council of Europe have emerged concerning the exercise of legal and political
authority.39 Accordingly, it is contended that the traditional view of state sovereignty will
not survive in a multilevel governance structure that gives equal importance to
supranational bodies regarding decision-making.40 He argues that the idea of the State
being the Centre of constitutional authority is untenable. 41
Thus, Walker's theory is an
example of how the scope of Constitutionalism, as envisaged traditionally, is taking a
paradigm shift.

SOCIETAL CONSTITUTIONALISM – Gunther Tuebner is the prominent exponent of

societal Constitutionalism. Societal Constitutionalism further widens Constitutionalism's
ambit, even including private actors under its grab in the global sphere. According to
Tuebner, the focus of the current constitutional disputes has shifted to activities of private
actors, including human rights violations by Multinational corporations, health and
environmental degradations on free trades, contemporary threats posed by internet and
service providers to freedom of speech and expression, issues pertaining in the global

37
Gavin W. Anderson, beyond ‘Constitutionalism Beyond the State’, 39(3) Journal of Law and Society 359,
360 (2012)
38
Id at 361
39
N. Walker, Late Sovereignty in the European Union in Sovereignty in transition, 10(N. Walker ed., Hart
Publishing 2003)
40
M.P. Maduro, Europe and the Constitution: what if this is as good as it gets? in European Constitutionalism
Beyond the State 84(J.H.H. Weiler & M. Wind eds., Cambridge Univ. Press 2003)
41
Gavin W. Anderson, supra note 37

30
financial market etc.42 In effect, Teubner extends Walker's analysis of the necessarily
constitutional character of polities to a host of non-state settings, opening up 'the media,
multinational groups, global law firms, professional bodies' as sites of constitutional
discourse.43 Thus, the powerful private enterprises excluded from the traditional view of
Constitutionalism are also included under the new version of societal Constitutionalism.

NEW CONSTITUTIONALISM – Stephen Gill has theorized new Constitutionalism as an

outspring of neoliberalism in the global market after the great depression, which urged for
deregulation, reduction of government spending, privatization and globalization in the
market economy. Gill emphasized how transnational treaties and agreements like WTO,
TRIPS, FTA, and Bilateral trade agreements acted analogous to a constitution in the global
economy to ensure social control.44Thus, Gill points out that even globally, a de facto
Constitution is established to control different actors.

Further, with the entry of transformative Constitutionalism, individualism and autonomy

are given more importance, and other individuals' intervention in the individual sphere is
also considered an infringement of fundamental rights. Thus, the concept of
Constitutionalism has taken new roads, and the current debates on Constitutionalism
beyond the State happening in the global sphere significantly impact the traditional notion
of Constitutionalism affixed to the state alone. At this juncture, the question of enforcement
of fundamental rights beyond the state action doctrine is very relevant. Understanding the
genesis of fundamental rights and its structural framework enshrined in the Constitution is
essential.

2.6 STRUCTURE OF FUNDAMENTAL RIGHTS IN INDIA

To understand the structure of Part III of the Constitution, the political theory underlying
the text of the Constitution should be examined. The origin of fundamental rights can be
attributed to the theories of various theorists and jurists. The roots of Fundamental rights
are often connected to natural rights theories. The theories of liberalism and individualism

42
G. Teubner, Constitutionalizing Polycontexturality, 20 Social and Legal Studies 210, (2011).
43
Gavin W. Anderson, supra note 37
44
Gavin W. Anderson, supra note 37

31
are the touchstone of these rights, and they were molded as a shield against the absolutism
and tyranny of the rulers.

"Constitution is natural law under the skin"- Edward Corwin45

If so, then fundamental rights are natural rights under the skin. Looking into the thoughts
of natural law theorists after the Renaissance period, one can see that individualism is the
outspring of the Enlightenment period.

HOBBESIAN THEORY OF RIGHTS - Hobbes was the first in line during the period of
Enlightenment to theorize individual rights. Hobbes's theory does not recognize substantial
individual rights. In Hobbesian political theory, in the State of Nature, "every man has a
Right to everything, even to one another's body."46 Thus, we can equate the idea of
individual rights portrayed under Hobbesian theory as "liberty rights or privileges" under
the Hohfeldian theory of rights.47 No obligation or duty is cast on one another over these
liberty rights48 . There was no security in exercising these liberty rights in the state of nature
as they often conflicted with external impediments (impediments caused by other people's
use of unlimited rights).49 In the state of nature, liberty rights are of no use since they are
not protected and are unrestricted. For illustration, if A has a right over land X, to use that
right, others should have a duty not to interfere in the land or to facilitate A's use of the
land. But in the Hobbesian State of nature, there is no corresponding duty; therefore, a
person, B, can trespass over the land. It was almost like having no right at all. Otherwise,
if we take Hampton's example of everyone's right to the apple in a tree,50and suppose A ran
to pluck an apple, but he was defeated by others who also could interfere with his right and

45
Gary L. McDowell, The Corrosive Constitutionalism of Edward S. Corwin, 14(3) Law & Social Inquiry 603,
608(1989).
46
Lloyd, Sharon A. and Susanne Sreedhar, Hobbes’s Moral and Political Philosophy, The Stanford
Encyclopedia of Philosophy, (June 21 2024, 4.31 pm),
https://plato.stanford.edu/archives/fall2022/entries/hobbes-moral/.
47
Eleanor Curran, An Immodest Proposal: Hobbes Rather than Locke Provides a Forerunner for Modern
Rights Theory,32(4) Law and Philosophy 515 (2013).
48
Eleanor Curran, Hobbes's Theory of Rights: A Modern Interest Theory, 6(1) The Journal of Ethics 63,64
(2002).
49
Id at 65
50
JEAN HAMPTON, HOBBES AND THE SOCIAL CONTRACT TRADITION 51 (CAMBRIDGE
UNIVERSITY PRESS, 2012)

32
yield the apple. Thus, the Hobbesian right is impeded from every side. 51Only when liberty
rights are transformed into claims rights or rights correlated with duties will these rights be
protected.

According to Hobbes, a set of precepts or rules was adequate to escape from this state of
nature and preserve the individual's life.52 These agreements are called the laws of nature,
where individuals relinquish their rights by transferring or renouncing them. Hobbes
explained it as follows; "To lay down a man's Right to anything is to divest himself of the
Liberty, of hindering another of the benefit of his Right to the same."53 i.e., if A lays down
his right to the apple on the tree, then A can no longer interfere with B's right over the apple.
Further, he argues that some rights of nature cannot be renounced, such as the right to self-
preservation. Even if some right is acknowledged as retained, the retained rights are said
to be weakened so much by the power and rights of the sovereign that they are rendered
insignificant, rights in name only.54 The sovereign has unlimited power in the state of peace
as the individuals surrender all their rights, and no rights are left to judge the legitimacy of
the sovereign.55

Thus, Hobbes's political theory was perceived to have minimal contribution to natural
rights, which are camouflaged as fundamental rights or Bills of Rights in the modern liberal
ideas of rights. I believe that Hobbes's rights theory failed to limit the action of the State
over individual rights; instead, more attention was given to the power conferred on the
State. To support this, the words of Brian Tierny may be looked into. He rightly criticized
Hobbesian rights theory as it failed to recognize the duty of others toward the rights of
individuals.56

51
Eleanor Curran, supra note 48 at 81
52
Eleanor Curran, supra note 48 at 68
53
THOMAS HOBBES, LEVIATHAN 190 (MICHAEL OAKESHOTT ED., COLLIER BOOKS 1962)
(1651).
54
'No one could claim rights of self-ownership against such power', WILL KYMLICKA,
CONTEMPORARY POLITICAL PHILOSOPHY 130 (OXFORD: CLARENDON PRESS, 1990).
55
D. J. C. Carmichael, Hobbes on Natural Right in Society: The "Leviathan" Account 23(1) Canadian Journal
of Political Science 3 (1999)
56
“I am inclined to agree that the work of Hobbes represents an aberration from earlier ideas about natural
rights and natural law, though some scholars have seen his work as derived from late medieval scholasticism.
In any case, his ideas have little to do with modern ways of thinking about human rights. Hobbes's
characteristic teaching was that individuals have rights, but no duty to respect the rights of others. Modern

33
LOCKEAN THEORY OF RIGHTS - John Locke's political theory is considered the
forerunner of modern rights theory. It is considered to be the precursor of revolutions in
France and America. Locke set individual rights at the center of his political theory.
Lockean theory recognizes the individual's inalienable rights and the existence of the
State's corresponding duty. Unlike Hobbes, Locke held a paramount position on certain
rights retained by individuals, and the State was bound not to interfere in these rights.
Locke considered the right to life, liberty, and property inalienable natural rights inspired
by the Puritan movements. Following the same line of thought of Hobbes, he also gave
great importance to self-preservation. Unlike Hobbes, Locke kept these individual rights
on a higher pedestal, and the authority formed by the people's consent is not an unlimited
and arbitrary sovereign.

Accordingly, in Locke's State of Nature, there was inadequate protection of the inherent
rights and liberties of the individual. To protect these rights, they formed the government
in the form of a social contract by which a part of the rights is surrendered to the community
as a whole and in reciprocal, the government secures the retained rights. Further, the
government so formed has to work within the limits imposed for the very reason it was
constructed. i.e., to protect the rights retained. Thus, individual liberty and limited
government are two faces of the same coin.57 The same concept is reflected in Part III of
the Constitution. With this in mind, we should try to answer the question of the extent of
state intervention in individual liberty. Where does the power of the State end? And what
is the extent of individual liberty or rights? The answer differs from Nation to Nation,
depending on the political, social, economic and cultural backgrounds, history and the
context in which fundamental rights germinated.

HOHFELDIAN THEORY OF RIGHTS – Hohfeldian "claim right" closely resembles the

structure we have incorporated in our Constitution as fundamental rights. A right that
creates an opposite correlated duty on another is a claim right. These duties can be either

codes of human rights enumerate rights that others are bound to respect. The situation is different with Locke.
His rights involve duties to others, and it is widely agreed that Locke's work was an important influence in
the formation of modern liberal ideas, including ideas concerning rights” Brian Tierney, Historical Roots of
Modern Rights: Before Locke and After, Ave Maria Law Review 3 (2005).
57
Nicholas L. DiVita, John Locke's Theory of Government and Fundamental Constitutional Rights: A
Proposal for Understanding, 84 W. Va. L. Rev. 825(1982).

34
abstaining from interfering or impeding the exercise of a right by the right holder or
facilitating or performing actions to aid the right holder in exercising his right. So, if A has
a claim right to X against B, then B has a correlative duty not to interfere with A's having
or doing X, or sometimes, a duty to give X to A or to help A to have or do X.58 Therefore,
it can be a negative or positive duty. Fundamental rights create such a duty on the state. It
is often negative, but in certain circumstances, even a positive obligation is cast.

STUART MILL'S NEGATIVE LIBERTY - Stuart Mill, in his essay "On Liberty,"
described liberty as protection against the tyranny of political rulers.59 Accordingly, liberty
and authority are two opposing forces, and for Mill, power to the authorities was necessary,
but at the same time, it was dangerous. Therefore, limits were set against the rulers in two
ways. Firstly, recognition of these political rights or liberties of the people and, in case of
infringement of these rights, will amount to a breach of the duty of the rulers. Specific
resistance and rebellion are also available against it. Secondly, constitutional checks based
on people's consent also act as a limit. Taking the same analogy to the Indian Constitution,
recognition of political rights and liberty is echoed in Part III of the Constitution. Further,
judicial review acts as a constitutional check on the infringement of these rights. Thus, the
concept of rights reflected in Part III of the Constitution can be correlated to negative
liberty as envisioned by Stuart Mill.

Fundamental rights are structured in the American model of the Bill of Rights. The
Constitutional makers divided fundamental rights and directive principles into two parts as
if the first part, i.e., Part III, is justiciable, and they imposed a negative duty on the State
not to interfere in these rights. Meanwhile, the latter, Part IV, was designed as a non-
justiciable positive duty.

Fundamental rights are structured to limit the action of the "state" under Article 12 of the
Constitution. In the constitutional assembly debate on 29th April 1947, Mr. K.M. Munshi
suggested introducing the expression "for this Part" after the expression "Unless the context

Eleanor Curran, supra note 48 at 64

58

John Stuart Mill, On Liberty. In On Liberty, Utilitarianism, and Other Essays, (Mark Philip and Frederick
59

Rosen eds., Oxford University Press 2015)

35
otherwise requires" to Article 12.60 Thus, it can be interpreted that the constitutional makers
intended to apply Part III only in case of intervention of the "state" over Fundamental
rights.

Further, in the constitutional assembly debate held on 25th November 1948, Dr. Ambedkar
observed that the object of Fundamental Rights is twofold. First, every citizen must be able
to claim these rights. Secondly, every authority with either the power to make laws or the
power to have discretion vested in it should be subject to these rights. Therefore, if
the fundamental rights are to be clear, they must be binding not only upon the Central
Government and the Provincial Government. They must also be binding upon every
authority created by law and have specific power to make laws, rules, or by-laws.61

Further, the object of fundamental rights has always been a topic of discussion, and there
are two conflicting views on the same: declaratory and constitutive. The declaratory view
argues that fundamental rights exist even before the Constitution as natural rights, and the
Constitution merely declares these rights.62 Thus, the declaratory view looks up to the
natural law theories. On the other hand, the constitutive view states that fundamental rights
are creations of the Constitution. I support the declaratory view as the very object of Part
III itself, as evident from the Constitutional Assembly debate, which is to rein in state action
or limit its boundaries and not create new rights. These rights are inherently there within,
which could be traced even in the Magna Carta, Bill of Rights, and human rights
documents, but ultimately, they are just the trail of evolution and not the starting point.

THE CONSTITUTIONAL BALANCE – I think Part III balances individualism and

absolutism. Individual rights are protected; at the same time, duty is cast on the State in the
form of a negative manner in the State when it comes to fundamental rights. Further, with

60
Kumar Kartikeya, The Conceptualisation of "State" vis-a-vis Fundamental Rights, SCC Online (June 21,
2024, 6.35 pm) https://www.scconline.com/Members/SearchResult.aspx
61
Constituent Assembly Debates, Vol. VII, 610-611 (25-11-48).
62 S. Sundara Rami Ready, Fundamentalness of Fundamental rights and Directive Principles in the Indian
Constitution, 22(3) Journal of the Indian Law Institute 399 (1980).

36
reasonable restrictions provided under various fundamental rights, there is no absolute right
to the individuals; some rights may be more absolute than others.

The constitutional balance reflected in Part III can be interpreted from looking into the
American Bill of Rights as the former is just a disguised version of the latter. In an
American case, Jackson v. City of Joliet 63 , the court emphasized the context in which the
Bill of Rights is structured in a way of negative rights. It was observed that "Our
Constitution is a charter of negative rather than positive liberties. The men who wrote the
Bill of Rights were not concerned that the government might do too little for the people but
that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the
height of laissez-faire thinking, sought to protect Americans from oppression by the state
government, not to secure their basic governmental services."64 This is reflected in our Part
III. Article 21 begins with "No person shall be deprived of his life, and a personal
liberty…", and Article 14 reads as "the state shall not…". Thus, it is evident that the
fundamental rights were designed similarly to the Bill of Rights. i.e., to protect individuals
from abuse of power by the newly formed government and to limit their power. Affirmative
obligations and positive duties were separately arranged under the Directive principles to
attain the socio-economic goals. Slowly, through various cases, the directive principles
have made a backdoor entry into the fundamental rights regime, and through this, even
positive obligation is making way to Part III. However, this kind of positive duty or
obligation on the state is far impractical and farfetched in India. The scope of this kind of
affirmative obligation is undoubtedly limited.65

2.7 CONCLUSION

Fundamental rights under the Constitution do not exist in isolation. It is structured in such
a manner as to limit the State's encroachment over these rights or uphold Constitutionalism.
Further, it can be viewed from another perspective that fundamental rights legitimize the
act of the government to the extent of reasonable restrictions beyond which it cannot carve

63
Jackson v. City of Joliet, 465 U.S. 1049 (1983).
64
Id
65 David P. Currie, Positive and Negative Constitutional Rights, 53(3) The University of Chicago Law
Review, 864, 872 (1986)

37
in. Keeping this in mind, enforcement of fundamental rights between individuals or beyond
the State is far more ideological in Indian Ground, where even the concept of individualism
and autonomy is struggling to show up. I believe it would be a reverse turn from the
established theory of rights on which the whole structure of fundamental rights is built. I
believe it will resemble Hobbes's commonwealth, where the State has absolute power to
curtail rights and regulate private affairs. Even private affairs will be constitutionalized,
leading to a situation where no right exists.

38
 CHAPTER 3

THE STATE ACTION DOCTRINE UNDER INDIAN

CONSTITUTION AND ITS EXPANSION

3.1 INTRODUCTION

State Action doctrine means that fundamental rights under the Constitution apply to state
actions, not private ones.66 This approach is otherwise called the vertical application of
fundamental rights. Verticalists are classic liberalists who argue that fundamental rights are
limits set on the encroachments made by the State on individual autonomy and cannot be
applied in private affairs. They argue that fundamental rights have zero or minimal role in
private law disputes. However, with privatization and liberalization, the concept of "state"
has diluted, and the Judiciary has widened its ambit to take in even private actions.
However, to what extent can this private action be embraced, and to what extent can "State"
be widened? This question is addressed in this chapter. Through various cases, the author
tracks the evolution of state action doctrine in India and examines its relevance to Part III
of the Constitution.

3.2 THE GENESIS OF STATE ACTION DOCTRINE AND IT'S

IMPORT TO INDIAN CONSTITUTION

The state action doctrine was born in the civil rights case67 in the USA. Black Americans
initiated the case before the lower Court against the owners of theaters, hotels, restaurants
and transit companies that refused to admit them or excluded them from "white-only"
facilities. During the reconstruction period, Congress passed the Civil Rights Act of 1875,
which attempted to address the racial discrimination deeply rooted in the U.S. The statute
gave everyone access to public places like theatres, transportation, accommodation centers,
etc., regardless of race and color. The business owners challenged the above act in the civil
rights case. Five lower court cases, United States v. Stanley, United States v. Ryan, United
States v. Nichols, United States v. Singleton, and Robinson et ux. v. Memphis & Charleston

66
Stephan Jaggi, How the German Concepts of Horizontalism and Proportionality Could Improve the US
State Action Doctrine, 30 IND. INT'l & COMP. L. REV. 195 (2020).
67
civil rights case, 1 109 U.S. 3

39
R.R. Co., were combined and heard by the Supreme Court. The majority held that the 13th
and 14th Amendments cannot have a broader scope to interfere in private activities even if
there is explicit discrimination, and Congress cannot outlaw such private acts that are
discriminatory under S.5 of the Fourteenth Amendment. Justice Harlan dissented and even
took the view that private action should be included under the constitutional limit under
the scope of performing a public function.

The Judiciary took a similar approach in later cases to limit the action of legislature,
executive, and judiciary, which are agencies exercising the above powers of the State. The
only scope of including private actors was under the exception of "public function." Only
in those circumstances is a private actor deemed a state actor. A substantial expansion of
the state action doctrine was employed by the American Supreme Court to curb racial
discrimination.68 The growth of state action on private acts is amalgamated with state
support, private acts of state character, acts done under statutory powers, agents of the State
etc. This evolution of state action in the U.S. will be dealt with in detail in Chapter V on a
comparative study of the horizontal application of fundamental rights. However, in crux,
one can say that the ultimate test applied in the U.S. to determine enforcement of the Bill
of Rights is whether the infringement of a person's right is reasonably attributable to the
State.69 The only exception is the private party doing public functions.

The Indian Constitution has embodied the American concept of state action in Part III of
the Constitution under Article 12, subject to such differences in social and political
conditions and constitutional setup.70 The evolution and expansion of the State in India is
in line with that in the USA. To what extent can the concept of "state" be expanded in
India? This is discussed below.

3.3 CONSTRUCTION AND EVOLUTION OF THE DOCTRINE IN

INDIA

68
D.D. BASU, COMMENTARY ON CONSTITUTION OF INDIA, (9 TH EDT. 2014)
69
Id
70
Id

40
Under the Indian Constitution, fundamental rights are a limb of Constitutionalism that
limits state action. In the case State of W.B. v. Subodh Gopal Bose,71 it was observed that
"The whole object of Part III of the Constitution is to provide protection for the freedoms
and rights mentioned therein against arbitrary invasion by the State."

The definition of State is given under Article 12 of the Constitution for the application of
provisions contained in part III.72 This constitutional construct embodies the state action
doctrine germinating in the American system. The significance of Article 12 comes into
the picture when fundamental rights infringement is challenged under Article 32. Here, the
Court mainly looks into "the state" aspect for the maintainability of such writs and
enforcement of fundamental rights. Whereas, when it comes to Article 226 remedy, the
High Courts have wider power and can be applied against "any person or authority" on
nonconstitutional grounds as well as contravention of provisions outside Part III of the
Constitution. Even then, "any authority or person" cannot be extended boundlessly. It
should be confined to any person or authority performing public duty. Thus, an invisible
cloak of state action is applied in Article 226 as well.

Further looking into the Constituent Assembly debates on 25th November 1948, 73
it is
evident that Article 12 of the Constitution defining "state" was an incarnation of the state
action doctrine. Here, one of the assembly members, Sri. Mahmood Ali Baig Sahib
Bahadur raised the argument that the definition of State had not been entered in this Article.
He also questioned the ambiguity of the term "other authority" in the definition. He
contended that since "any authority "is a vague term, anyone having an authority who
comes under "state" can abridge fundamental rights, which would lead to an absurd
situation. Therefore, Mohammed Ali. Baig submitted that Article 12 is unnecessary and
finds no place as it leads to confusion.74 Dr. B. R. Ambedkar defended this argument very
well and explained why Article 12 must be part of the Constitution. He emphasized that
the object of fundamental rights is that every citizen must be able to claim them, and it

71
State of W.B. v. Subodh Gopal Bose, 1954 AIR 92
72
D.D. Basu, supra note 68.
73
Constitutional Assembly Debates VOL VII, PP 607 – 611.
74
1 SAMARADITYA PAL, INDIA’S CONSTITUTION, ORIGINS AND EVOLUTION, CONSTITUENT
ASSEMBLY DEBATES AND LOK SABHA DEBATES ON CONSTITUTIONAL AMENDMENTS AND
SUPREME COURT JUDGMENTS (1st Ed. 2019).

41
should bind every authority that has either the power to make laws or the power to have
discretion vested in it.75 Therefore, rather than repeating the authorities again and again, he
intended to give a composite definition as such under Part III.

3.4 CONCEPT OF STATE UNDER ARTICLE 12 OF THE

CONSTITUTION

Part III of the Constitution begins with the definition of "State" under Article 12. It includes
the Government and the Parliament of India along with the Government and the Legislature
of each of the states. Further, all local authorities and other authorities that exist in the
territory of India or function under the control of the Government of India are also
included.76

The definition of "State" under Article 12 is open-ended and not exclusive or exhaustive.
The word "includes" in the Article makes it possible for the Judiciary to interpret the State
more broadly and include three organs of Government and other authorities added under
the state action doctrine in the USA.77The first part of the definition is unambiguous and
specific. Therefore, there was no confusion involved, but the second part of the definition
lacked clarity as to what constitutes local authority and other authorities. Much of the
academic discussion revolved around this second part, and the concept of the State widened
in two directions, firstly expanding the list of authorities under the State and secondly,
expanding the functions performed by the State. This expansion has been vividly tracked
and explained under the coming subtopics.

3. 5 THE ENIGMA OF "LOCAL AUTHORITIES" UNDER ARTICLE

12

The primary point of discussion revolved around what comes under local authority. For
this definition, the term "local authority" relates to Section 3 (31) of the General Clauses
Act of 1897, which shall mean a municipal committee, district board, body of port
commissioner or other authority legally entitled to or entrusted by the Government with,

75
Id
76
INDIA CONST. Art. 12.
77
D. D Basu, supra note 68.

42
the control or management of a municipal or local fund. Local authorities are under the
exclusive control of the states under entry 5 of List II of the 7th Schedule.78

In Rashid Ahmed v. Municipal Board, Kairana,79 "It is among the leading references in
which a Municipal Board was determined to be a local authority within Article 12.
Additionally, this group comprises the panchayats, municipalities, and cooperative
societies in Parts IX, IX-A, and IX-B, respectively."

In Ajit Singh v. State of Punjab,80 it was held that village panchayats are included in the
definition of local authority.

In Mohammad Yasin v. Town Area Committee,81 the Supreme Court observed that a body
can be considered a local authority if it has a separate and independent legal existence and
not a mere governmental agency. Further, it should be tasked to function in a particular
area and constituted by members who are wholly, or partly, directly or indirectly, elected
by the inhabitants of the area. They should also exercise autonomy and should be governed
by a statute giving such governmental functions and duties usually held by the government.
They should also have financial independence and the power to raise funds for the
furtherance of their activities and fulfillment of their objectives by levying taxes, rates,
charges, or fees. Municipalities, Panchayats and Cooperative societies are such authorities.

Therefore, what comes under local authorities was defined by the Judiciary and its
boundaries were fixed. The debate then concentrated on the term "other authorities."

3.6 THE JUDICIAL ENDEAVOR TO SOLVE THE RIDDLE OF

'OTHER AUTHORITIES" UNDER ARTICLE 12

The term "other authorities" has been a penumbra wherein the Judiciary has been widening
the ambit of the State from time to time. The Judiciary has devised various standards and
tests to determine what constitutes an institution or entity that falls within this definition.82

78
D. D Basu, supra note 68.
79
Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163
80
Ajit Singh v. the State of Punjab, AIR 1967 SC 856.
81
Mohammad Yasin v. Town Area Committee, 1952 AIR 115.
82
Priyesh Pathak, "State" under Part III of the Constitution of India: A Study of Interpretation by Judiciary,
3 INDIAN J. INTEGRATED RSCH. L. 1 (2023).

43
3.6.1 TEST OF EJUSDEM GENERIS

The Judiciary made the first attempt to define other authorities in the case of the University
of Madras v. Shanta Bai,83 where the question was whether the University comes under
the definition of State under Article 12. The Court utilized the principle of Ejusdem
Generis, according to which when a legal text has a general term preceded by several
specific terms, the general term must be interpreted to contain only that which would
broadly be in relation or inconsistent with the specific terms.84Accordingly, the word "local
" and other authorities should be construed as ejusdem generis with the Government or
legislature, so construed can only mean authorities exercising governmental
functions.85 Applying it to the facts of the case, Madras University was a corporate body
established under the Madras Act VII of 1923 and was not charged with executing any
governmental functions. Its purpose is purely to promote education. Thus, the Court held
that the University does not come under the ambit of "State" under Article 12. With the
help of American cases, they distinguished state-maintained universities from state-aided
universities. The court further established that the former is covered under Article 12 and
the latter is not a state as defined in Art. 12 of the Constitution.

A change in this trend is visible in the case of Ujjam Bai v. State of U. P,86where the
question of whether the sale tax authority is covered under the definition of State under
Article 12 was addressed. Here, the petitioners relied on the rule of ejusdem generis to
equate the functioning of a tax authority to that of a state. In the five judges, Justice S. K
Das refused to entertain the question of "other authority." Justice J. L Kapur lightly
answered the question that the quasi-judicial order of the Sales tax Officer cannot be
challenged under Art. 32, and the broader question of whether the Judiciary is included in
the definition of "State" under Art. 1287 was left unanswered. Justice Subha Rao, applying
the ejusdem generis rule, considered tax authority as an executive body and observed that
it is covered under the meaning of Article 12. The petitioner's argument of omission of

83
The University of Madras v. Shantabai, AIR 1954 Mad 67.
84
Satyaveer Singh, Tracing the Ambit of State under Article 12, 2(2) JCLJ 190, 194 (2022).
85
Supra note 83.
86
Ujjam Bai v. State of U. P, AIR 1962 SC 1621.
87
Id

44
judicial authorities from the definition of State by the drafters was not heeded on the ground
that tax authority here is acting under the guise of the executive and they will automatically
be included under Article 12. If the framers intended to exclude all judicial bodies, then
even the Government and Parliament would have to be excluded when acting in their quasi-
judicial capacity. Justice Hidayatullah observed that taxing authorities, though they act in
a pattern of Judiciary, are not civil Courts of judicature; they are executive and are covered
under Article 12, being instrumentalities of the State. But Justice Rajagopala Ayyankar took
a different turn from the ejusdem generis rule. He observed that the classification of
functions is unnecessary. Negating the ejusdem rule, Justice Ayyankar propounded that
every authority created by a statute and vested with such powers will be covered under the
wide ambit of “other authorities.”88 Thus, Justice Ayyankar observed that the taxing
departments are instrumentalities of the State. Still, the ejusdem generis rule cannot be
uniformly applied as the authorities under Article 12 are not of the same genus.

But again, there was not much clarity as to what rule must be applied when defining other
authorities. Many High Courts followed the earlier rule of ejusdem generis, which is
evident from the following two cases. In B.W. Devadas v. Selection Committee for
Admission of Students to the Karnataka Engineering College,89the High Court of Mysore
reiterated that the University is not a state, followed the same road taken in the University
of Madras and held that only instrumentalities of State functioning under executive or
legislative nature come under Article 12. Further, the Punjab High Court in Krishan Gopal
Ram Chand Sharma v. Punjab University90 also followed the decision given in the case
of the University of Madras and the principle laid down therein was approved and applied.

3.6.2 THE TWIN APPROACHES

Further, a chance to look into "other authorities" came to the forefront before the Supreme
Court in Rajasthan Electricity Board v. Mohan Lal.91 The case dealt with an employee
promotion dispute challenged on grounds of violation of Articles 14 and 16 of the

88
Id
89
B.W. Devadas v. Selection Committee for Admission of Students to the Karnataka Engineering College,
AIR 1964 Mysore 6.
90
Krishan Gopal Ram Chand Sharma v. Punjab University, AIR 1966 Pun 34.
91
Rajasthan Electricity Board v. Mohan Lal, AIR 1967 SC 1857.

45
Constitution. The question raised before the Court was whether the Electricity Board comes
under the definition of State under Article 12 of the Constitution. Here, the Court criticized
the application of ejusdem generis as no distinct genus or category was running through
the bodies already named under Article 12. The Court explained that ejusdem generis
should be applied cautiously and not be stretched too far. It should be applied only in cases
where there is a distinct genus or category that can be called a class or kind of object. It
cannot be applied if the characters are widely ranged.92 The majority held that the
electricity board is covered under Article 12 as it is a statutory body controlled by the
Government. They relied on the dissenting judgment of Ayyankar in the case of Ujjam
Bai v. State of U. P93 and the decision in K.S. Ramamurthi Reddiar v. Chief
Commissioner, Pondicherry94 to propose a new approach that all bodies formed by a
statute and controlled by State are covered under Article 12. 95 Therefore, the majority
followed a structural approach.

But, Justice K T Shah dissented from this view and gave a concurrent opinion that "other
authorities" can be defined based on a "functional test," i.e., those performing a sovereign
function of state are protected and constitutional or statutory bodies that do not exercise
such sovereign power of the State are not within the meaning of State.96Therefore, since
the electricity board exercises sovereign powers under the statute, it comes within the
meaning of "other authorities" under Article 12. Therefore, two different approaches were
put forth in this case to define the boundaries of "other authorities."

Further, the observation of Justice K T Shah is very notable as he again reiterated that the
purpose of the expression "State" in Article 12 is for its application to Part III of the
Constitution. It is a green flag for my hypothesis in this work, i.e., horizontality cannot be
applied to fundamental rights in India under Article 32. He further highlighted that while
we try to define other authority in Article 12, one must contemplate two aspects. Firstly,
the sweep of fundamental rights over the power of the authority; secondly, one must not
keep a blind eye towards the restrictions imposed upon the exercise of certain fundamental

92
CRAIES, ON STATUTE LAW 181 (6TH ED. 1963)
93
Supra note 86
94
K.S. Ramamurthi Reddiar v. Chief Commissioner, Pondicherry, (1964) 1 SCR 656
95
Supra note 84 at 194
96
Supra note 91

46
rights. He opined that while defining other authorities under Article 12, one should bear in
mind whether the constitution drafters intended to impose fundamental rights against them
and, at the same time, whether they are cast with the sovereign power to bring in restrictions
on these rights.

With this in mind, one must try to stretch the application of fundamental rights horizontally.
The reasonable restrictions given under the fundamental rights intend to circumscribe the
acts of entities that come under Article 12 by way of notifications, legislations, orders etc.,
which is covered as "law" under Article 13 of the Constitution. Thus, if applying
fundamental rights is considered too far to restrict even private actors without limits, it can
backfire on the basic idea of fundamental rights inscribed under the Constitution.

In Sabhajit Ternary v. Union of India,97 the question arose as to whether the Council of
Scientific and Industrial Research, a registered society, was an "authority" within the ambit
of Article 12. The Court observed that the definitive test in determining whether an entity
would fall within the ambit of Article 12 is how the entity is created. Therefore, only
statutory bodies would satisfy the requirements of Article 12. It was held that CSIR is not
a body within Article 12.

3.6.3. TEST OF AGENCY OR INSTRUMENTALITY

The next turn in the journey of Article 12 occurred in the case of Sukhdev Singh v. Bhagat
Ram98, where the dismissed employees of three statutory corporations: (1) Oil and Natural
Gas Commission, (2) Life Insurance Corporation and (3) Industrial Finance Corporation
claimed reinstatement. The Corporations were incorporated under the Oil and Natural Gas
Commission Act of 1959, the LIC Act of 1956 and the Industrial Finance Corporation Act
of 1948. The question before the Supreme Court was whether the three Corporations were
"other authorities" under Article 12 of the Constitution. This case was decided on the same
day as the Sabhajit Tewary case(supra).

The Court observed that the state action needs to be extended to limit every governing
power under the bounds of the Constitution. The Court relied on some American cases to

97
Sabhajit Ternary v. Union of India, (1975) 1 SCC 485
98
Sukhdev Singh v. Bhagat ram (1975) 1 SCC 421

47
observe that the corporations would be bound by the constitutional limitations of being an
agency of the State. The majority gave a broader view to the state action doctrine to
incorporate Corporation within the meaning of State as it is an agency or instrumentality
of the State.

Further, whether state action can be extended to private enterprises was addressed. Taking
track of American courts, the court tried distinguishing private and state actions. The Court
takes our attention to Article 13(2) of the Constitution, which reads, "No State shall make
any law which takes away or abridges the rights guaranteed by Part III." Therefore, the
Court observed that state action alone is prohibited from intervening in Part III, and
wrongful private action that is unsupported or not connected to state authority in the shape
of laws, customs, or judicial or executive proceedings is not prohibited.99 Unless the private
action has a connection to the State, it cannot be thus termed state action, and the
Constitution does not limit these private actions.

The Court formulated a test of agency by which mere financial support for private actions
does not transform it into state action, but an additional factor should be attached to such
actions. Firstly, it can be an element of control exercised by the State. Therefore, it was
held that State financial support plus an exceptional degree of control over the management
and policies is needed to characterize an operation as State action.100 Secondly, the
additional factor could be other things like the exercise of a public function. Therefore, if
an entity has extraordinary financial reliance on the state and performs a public duty, it is
an agency of the state. The Court took a functional approach and held that if a body is
performing a function that is of such public importance and so closely related to
governmental functions, it can be designated as a governmental agency, and the presence
or absence of State financial assistance becomes irrelevant in construing State action.101
Thus, the Court combined the functional and structural approaches to formulate the new
test of agency or instrumentality.

99
Id
100
Id
101
Id

48
The Court also criticized the difficulty in segregating government and non-government
functions, as sometimes private action may be governmental, or state action can be non-
governmental. Finally, the majority held that the statutory corporation is within the
meaning of State on the following grounds. i.e., the central government has a significant
share of capital and profit, exercises control over its policy, carries on a business that is of
great public importance and enjoys a monopoly status. Further, it is very interesting to note
the stand taken by the majority on whether a private corporation that might violate the
fundamental rights of its employees comes under the ambit of the State. The Court
neglected to answer this question or refused to expand the application of fundamental rights
to that extent, again hinting towards non-application of horizontality and sticking to the
vertical approach pioneered by the Constitutional Drafters. Therefore, it is clear that pure
private actions are not a concern of the Constitution, and there are no constitutional limits
to such private actions.

Justice Alagiriswami dissented from the majority decision. Relying on the test put forth in
the case of Rajasthan Electricity Board (supra), he held that the Corporation doesn't come
under the ambit of other authorities as they are not exercising any sovereign power or
authority of the State. Justice Alagiriswami also looked into the distinction between
government function and non-government functions to suggest that only those functions
done in governmental and quasi-governmental character are covered under the state action,
and commercial or trade-related activities do not come within the state action. Therefore,
narrowing down the ambit of "other authorities" is evident from the dissenting opinion.

The next case in the row was R.D Reddy v. International Airport Authority of India and
others,102in which the question of whether airport authority is within the ambit of the State
was asked. The Court relied on the agency or instrumentality test propounded in the case
of Sukhdev Singh and elaborated the instrumentality test. The correctness of the decision
in Sabhajit Tewary v. Union of India103was doubted in this case. Accordingly, the Court
gave a broader interpretation to the term "other authorities" and highlighted the following
factors to be looked into while determining the scope of state action. The Court opined that

102
Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489.
103
Supra note 97.

49
in order to take the shelter of the state under Article 12, the authority should be receiving
significant financial assistance from the state or other forms of assistance of an unusual or
extraordinary nature. Further, the body should enjoy monopoly status conferred or
protected by the state, and it should exercise public functions closely related to
governmental functions. The above test is not exhaustive; The cumulative effect of all the
relevant factors controlling it needs to be considered.

Thus, the concept of state action became more crystallized and structured after the R. D
Shetty case. This has been followed in later cases of statutory corporations as well. In
Managing Director, U. P Warehouse v. Vijay Narayan Vajpayee104 , the Supreme Court
held that the U. P Warehouse Corporation formed as a statutory body is covered under
Article 12. In Som Prakash Rekhi v. Union of India,105 the question for consideration was
whether a public corporation would fall under the definition of Article 12. Here, the test of
instrumentality or agency put forth in the R. D Shetty case was reiterated, and it was held
that Bharat Petroleum Corporation Limited falls within the definition of State. The Court
also observed that the real test to determine an authority under Article 12 is the functional
approach. The older test concentrated on whether an authority was formed by or under a
statute. But here, the Court shifted the approach of looking into "how the legal person is
born" to the newer version of "why it is created."106 Thus, here, the Court emphasized the
functional approach over looking into how a body is created.

3.6.4 THE TURNING POINT - AJAY HASIA AND THE NEW

FUNCTIONAL, STRUCTURAL AND FINANCIAL TEST

On the same day of the Som Prakash (supra), the Supreme Court dealt with the case of
Ajay Hasia v. Khalid Mujib,107 wherein the Court advanced a six-pronged test to determine
whether an authority was an instrumentality of the State. The petitioners challenged the
status and nature of Regional Engineering College, Srinagar, formed under the Jammu and
Kashmir Registration of Societies Act., 1898. Till then, the discussions revolved around

104
Managing Director, U. P Warehouse v. Vijay Narayan Vajpayee, (1980) 3 SCC 459
105
Som Prakash Rekhi v. Union of India, AIR 1981 SC 221
106
Id
107
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722

50
statutory corporations forming instrumentality of the State. However, Ajay Hasia also
addressed whether the instrumentality test applies to companies and cooperative societies.
Here, the Court gave more attention to why a body is formed rather than concentrating on
how it is created. Further, they modified the test laid down in the case of R. D Shetty108.
The factors determining the scope of “other authority” were the quantum of share capital
held by the Govt., the financial assistance given by the State, the existence of state-
conferred or protected monopoly status, the existence of deep and pervasive State control,
performing functions of public importance and closely related to Governmental function
or a department of Government is transferred to the body. If an entity is an agency or
instrumentality of the Government, the above test should be satisfied. Here, the Court
emphasized the governmental control factor more and reduced the importance of the
functional approach to just one head under governmental function.

Many cases after this followed the test laid in Ajay Hasia and R. D Shetty to define
authorities under Article 12. Some such examples are narrated below. In B.S. Minhas v.
Indian Statistical Institute,109the Court held that the Indian Statistical Institute, a registered
society, is State under Article 12, applying the test on Ajay Hasia. In P.K. Ramachandra
Iyer v. Union of India,110 it was held that the Indian Council of Agricultural Research
(ICAR) and the Indian Veterinary Research Institute are bodies covered under “other
authorities” in Article 12 of the Constitution. In Workmen of Food Corporation of India
v. M/s. Food Corporation of India, 111 applying the instrumentality test, the Court held
that Food Corporation is an instrumentality of the State covered by the expression "other
authority" in Article 12.

In Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh112, the

Supreme Court held that aided schools receiving 90% expense from Government falls
within the expression "other authorities" under Article 12. The Supreme Court overruled
the High Court decision that held that the school is not covered under Article 12. For this,

108
R.D Reddy v. International Airport Authority of India and others, (1979) 3 SCC 489.
109
B.S. Minhas v. Indian Statistical Institute, (1983) 4 SCC 582.
110
P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141.
111
Workmen of Food Corporation of India v. M/s. Food Corporation of India, (1985) 2 SCC 136.
112
Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh, 1985 AIR 364.

51
the Court relied on the test laid down in Ajay Hasia and substantiated that the State has
significant financial assistance to meet almost the entire expenditure of the school, like the
Corporation in the Ajay Hasia case and also there existed deep and pervasive State control
which qualifies it as a state entity.

Another example is the case of Central Inland Water Transport Corporation v. Brojo
Nath Ganguly,113 where the Supreme Court relied on the Sukhdev Singh case(supra), the
Ajay Hasia (supra)and U.P. Warehousing Corpn. (supra). It was held that a corporation
working as a government company as defined in Section 617 of the Companies Act was
termed as the instrumentality of the State as it is nothing but the State working under the
corporate veil carrying out a governmental activity and governmental functions of vital
public importance.

Further, in Sheela Barse v. Secretary, Children's Aid Society,114 the Supreme Court,
following the above test, held that Bombay Children's Aid Society registered under
Societies Registration Act, 1860, should have been considered an instrumentality of State
within the meaning of Article 12.

Applying the instrumentality test in Tekraj Vasandi v. Union of India,115 the Supreme
Court held that the Institute of Constitutional and Parliamentary Studies is neither an
agency nor an instrumentality of the State. The Court observed that it is unnecessary for all
the tests to be satisfied to reach a conclusion either for or against holding an institution to
be "State." Therefore, the test is to see if the body significantly or prominently resembles
the state at first sight and no other view is possible.116 Therefore, the Court held that the
normal tests may not apply to ICPS, and it was held not an authority under Article 12. Thus,
again, it was reiterated that satisfying the judicial test of instrumentality or showing a state
action was necessary to invoke remedies under Article 32 to enforce fundamental rights.

113
Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986)3 SCC 156.
114
Sheela Barse v. Secretary, Children's Aid Society, (1987) 3 SCC 50.
115
Tekraj Vasandi v. Union of India, (1988) 1 SCC 236.
116
Id

52
The Supreme Court in All India Sainik Schools Employees' Assn. v. Defence Minister-
cum-Chairman, Board of Governors, Sainik Schools Society117applying the tests
indicated in Ajay Hasia held that the Sainik School Society is a "State."

In Star Enterprises v. City and Development Corporation of Maharashtra Ltd.,118 a

Government company constituted as the New Town Development Authority under a statute
was held to be an authority under Article 12. In Chander Mohan Khanna v. National
Council of Educational Research and Training,119 the question was whether NCERT, a
registered society, was a "State" within Article 12 of the Constitution. Here, the Court also
referred to the test laid down for Ajay Hasia, R D Shetty, Sukhdev Singh, Som Prakash,
etc. After considering the provisions of its memorandum of association as well as the rules
of NCERT, this Court concluded that since NCERT was primarily an autonomous body as
its activities were not fully related to governmental functions and the government control
was very minimal and confined only to the proper utilization of the grant. Financial control
was also very little, and therefore, it was not taken within the concept of State under Article
12 of the Constitution.

In Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn120 applying the above
tests till then, the Court held that a company that is substantially financed and financially
controlled by the Government, managed by government nominated directors and carrying
on essential functions of public interest under the control of the Government is "an
authority" within the meaning of Article 12. Many other cases in the row relied on the
instrumentality test to grab various authorities within the ambit of the State in Article 12.

3.6.5 DEEP AND PERVASIVE CONTROL TEST

After the long debates on stretching the definition of "state" over the decades, the Supreme
Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology121 propounded
the deep and pervasive control test. Here, the question was whether the Council of

117
All India Sainik Schools Employees' Assn. v. Defence Minister-cum-Chairman, Board of Governors,
Sainik Schools Society 1989 Supp (1) SCC 205.
118
Star Enterprises v. City and Development Corporation of Maharashtra Ltd., (1990) 3 SCC 280.
119
Chander Mohan Khanna v. National Council of Educational Research and Training, 1991) 4 SCC 578.
120
Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn, (2002) 2 SCC 167.
121
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.

53
Scientific and Industrial Research is stated within Article 12. The ratio of Sabhajit Tewary
was criticized and watered down in the above relay of cases, but on no occasion was the
decision overruled.

But in Pradeep Kumar, overruling the decision in Sabhajit Tewary v. Union of India,122
the Supreme Court held that the test formulated in Ajay Hasia and many other cases was
not a rigid test so that a body falling within any one of them is an authority under Article
12. The real test is whether the body's functional, administrative and financial control is
governed or dominated by the Government. Further, the Court held that such control should
be pervasive and particular to the body in question. This will make an entity part of the
State within Article 12. On the other hand, when the control is merely regulatory, whether
under statute or otherwise, it would not make the body a State.123

3.7 THE STATUS OF THE JUDICIARY UNDER THE STATE

CONCEPT

The Judiciary is neither explicitly included under Article 12 nor explicitly excluded from
it. There have been discussions surrounding whether the Judiciary falls under the term state
under Article 12 even from an early period. The question came up in Naresh Mirajakar v.
State of Maharashtra,124 which dealt with a defamation case. One of the parties called as
a witness asked the Court to prohibit publicity of his evidence. The trial court passed an
order prohibiting the publication of his evidence, and this order was challenged under
Article 32. The Court did not hesitate to extend protection of the fundamental rights even
if the High Courts breached them. The Court also restricted the discussion to
determinations by Courts strictly so-called-Courts, which are invested with plenary power
to determine civil disputes or to try offences. Quasi-judicial or administrative tribunals or
tribunals with limited authority were not considered.

In A.R. Antulay v. R. S Nayak,125 the Court held that an earlier decision of a court could
not be challenged on the grounds of violation of fundamental rights. Thus, reversing the

122
Supra note 97
123
Supra note 121
124
Naresh Mirajakar v. State of Maharashtra,1966 SCR (3) 744.
125
A.R. Antulay v. R. S Nayak, 1988 AIR 1531.

54
position of law, it was held that the Judiciary was not amenable to writs, which shows that
the Judiciary is not within the State definition under Article 12.

Again, in Rupa Ashok Hurra v. Ashok Hurra,126 the question was whether an aggrieved
person could challenge the order of the Supreme Court after the petition for review of the
said judgment had been dismissed. The Court held that after dismissal under Article 32, a
petition is not allowed, but it devised a mechanism called a "curative petition," under which
the aggrieved party can approach the Court in case of gross violation of the process of law.

Further, in Riju Prasad Sarmah v. State of Assam127, the petitioner contended that 'State'
includes all the three organs of the State, including the Judiciary. Therefore, it cannot
perpetuate discrimination in violation of Article 14 of the Constitution. It was held that
while the Court is acting in a judicial capacity, it cannot be regarded as a State. However,
administrative action is covered.

3. 8 PRIVATE PARTIES DOING PUBLIC FUNCTION - A BACKDOOR

ENTRY FOR PRIVATE ACTIONS UNDER ARTICLE 226

While looking into horizontality, it is very important to distinguish and study the scope of
Article 226 and Article 32. Article 32 provides the right to remedy, which itself is a
fundamental right. Writ jurisdiction under Article 32 is applicable strictly to entities that
come under the definition of “state” under Article 12. On the other hand, Article 226 is
much wider. It confers power on the High Court to issue writs not only for the
enforcement of Fundamental Rights but also for “any other purpose” against “any person
or authority.” Therefore, there existed a question of whether other authorities under Article
12 and Article 226 had the same meaning. But looking into various cases, we can see that
Article 226 had a wide ambit, and it can even take more private entities under its ambit
under the public function test evolved in Zee Telefilms Ltd. v. Union of India.128
Also, there are instances where the court discussed whether Article 12 can also take in
private entities in a similar model. The Supreme Court of India had to deliberate on
whether a private entity discharging important public functions would come under the

126
Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771.
127
Riju Prasad Sarmah v. State of Assam, 2015 (7) SCALE 602, 61.
128
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.

55
definition of “other authorities” in MC Mehta v. Union of India.129 The question that arose
in MC Mehta was whether victims of a gas leak from a private chemical and fertilizer plant
could sue for compensation under Article 32 of the Constitution. Here, the court refused to
determine if a private corporation can be held as a state under Article 12, but it allowed the
petition and thereby allowed a backdoor entry of private actors under Article 32 without
even determining the question of Article 12.

This allowed the Courts to steadily augment the ambit of the term "other authorities" to
prevent the Government from bypassing its constitutional obligations by creating
companies, corporations, etc., to perform its duties.130 This has led to the steady expansion
of the concept of "State" under Article 12 over time to include even entities that perform
functions that closely resemble those performed by the Government in its sovereign
capacity.131 But still, performing governmental functions of a public nature was not the sole
criterion under the different tests that evolved in Ajay Hasi(supra), R.D Shetty(supra), etc.
It was merely one of the factors within the composite’s tests, and a private actor performing
a public function cannot be invoked under Article 32.

The National Commission to Review the Working of the Constitution (NCRWC) has
recommended that an Explanation be added to Article 12 wherein the word' other
authorities' would mean the authorities whose functions relate to that of a public nature.132
This was an effort to define the scope of the State under Article 12 and eliminate ambiguity
in the term "other authority." But this was not taken in. Therefore, what constitutes a State
is actually what the Judiciary determines. If an authority could escape from the flare of the
above tests, there is no question of enforcement of fundamental rights against such entities.
However, this penumbra has been reduced by the Judiciary by taking in more and more
entities under Article 12, but this doesn’t extend to private entities doing public functions.

The trail of “other authorities” under Article 226 is different. In Andi Mukta Sadguru
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotasav Smarak Trust v. V.R.

129
MC Mehta v. Union of India (1987) 1 SCC 395.
130
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.
131
Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303.
132
NCRWC Report 2002, Ministry of Law & Justice, Government of
India, http://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, (last visited June 22, 2024)

56
Rudani,133 a trust was running a science college in Ahmedabad, initially with temporary
affiliation to Gujarat University and later with permanent affiliation. A dispute arose
between the University Area Teachers Association and the University, which was resolved
by the Chancellor’s award. The award was accepted by the State Government and the
University, and the University directed all affiliated colleges to pay teachers according to
the award. Instead of implementing the award, the trust terminated 11 teachers, claiming
they were surplus, and sought permission from the University to remove them. The
University did not accept their request, leading the trust to decide to close down the college.
The retrenched employees demanded their legitimate dues, including salary, allowances,
provident fund, and gratuity.

The employees moved the High Court Under Article 226, seeking a writ of mandamus to
compel the trust to pay their dues. The High Court granted the writ petitions, and the case
eventually reached the Supreme Court. Before the Supreme Court, the main question was
the maintainability of mandamus against a private body. Here, the apex court observed two
exceptions to mandamus. A mandamus cannot be issued if the rights claimed are purely
private. Also, if the college is purely a private body with no public duty or function,
mandamus will not lie.134 But, here, since the determination of conditions of service is not
purely private character, issuing mandamus was held valid. Thus, it paved the path for
thinking that Article 226 has a wider ambit.

The turning point of Articles 12 and 226 is the case of Zee Telefilms Ltd. (supra), where
the court clearly determined the scope of Articles 32 and 226 and held that a private actor
performing a public function may not be covered under Article 12 definition of state but it
will definitely be covered under Article 226.

Here, the majority applied the Pradeep Kumar test of deep and pervasive control to hold
that BCCI was under mere regulatory control of the Government, and since the is no such
deep control of the Government, it was held by the majority that BCCI is not State under
Article 12. However, minority judgment paved the way for the backdoor entry of private

Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotasav Smarak Trust v. V.R.
133

Rudani, 1989 (2) SCC 691

134
Id

57
actors, who were answerable to violations of fundamental rights through writ jurisdiction
under Article 226. Reverting back to the functional approach, the minority held that to
contemplate the true meaning of other authority; one must look into the function of such
bodies. The minority observed that the test in Pradeep Kumar cannot be applied to private
entities. The minority held that an authority, in order to fit in Article 12, should perform
public functions.

In Zee telefilms (supra), while holding that BCCI is not covered under "State" within
Article 12. It led to the conundrum with regard to the amenability of writs under Articles
32 and 226. It was observed that Article 226 can be utilized even to include private parties
doing public functions accountable for infringement of fundamental rights. Thus, the High
Court can issue writs to nonstate entities, although a boundary is fixed with the public
function test. Article 226 is broader but works on the same horizon as Article 32. Thus,
through this case, private entities have made a backdoor entry to the sphere of Part III
violation and under the public function thread, fundamental rights are enforceable even
against private entities.
But what constitutes public function was a question unanswered. In G Bassi Reddy v.
International Crops Research Institute,135 the court tried to define public functions as
those functions similar or closely related to state functions under its sovereign capacity. In
this case, the question was whether ICRISAT, a nonprofit research and training center,
comes within the meaning of “other authorities” for the purpose of Article 226. Applying
the above test of public function, the court held that ICRISAT is not amenable to the writ
under Article 226. However, this strict interpretation of “public function as “function of
governmental nature” was again diluted to function involving public interest or public
benefit in later cases where Article 226 was applied.
Judiciary finally defined “public function” in Binny Ltd. & Anr vs V. Sadasivan &
Ors.136The question raised here was whether writ jurisdiction under Article 226 can be
applied against a private company. It was observed that Article 226 is much broader, but
it is a public law remedy and is available against a body or person performing public law

135
G Bassi Reddy v International Crops Research Institute, 2003 (4) SCC 225
136
Binny Ltd. & Anr vs V. Sadasivan & Ors, 2005 (6) SCC 657.

58
functions. The court also tried to define public function as those activities done by a body
to achieve some collective benefit for the public or a section of the public and accepted by
the public or that section of the public as having authority to do so.137 They rightly observed
that there cannot be any general definition of public authority or public action, but purely
private actions are still not covered under Article 226. There are many illustrations to
substantiate that private disputes purely of a private nature are not maintainable under
Article 226. Article 226 looks into the nature of duty rather than the identity of the actor.
This approach is reflected in the following cases. In Surya Devi v. Ram Chander Rai,138
the appellant challenged an order of the High Court that dismissed the temporary injunction
sought against private respondents through an appeal. Here, the Court held that Certiorari
and mandamus can be applied even to private party disputes. This reflects a purely private
dispute, but the court held it maintainable. But this was later overruled in Radhey v. Chhabi
Nath.
Again, in Shalini Shyam Shetty v. Rajendra Shankar,139 the court dealt with a private
dispute between a landlord and a tenant. Here, the Court again reiterated that Article 226
can be invoked in private disputes, but it should be shown that the private party is acting
in collusion with statutory authority. The Supreme Court criticized the route taken by the
High Court in entertaining the landlord-tenant dispute under the tag of writ petition. It was
held that the Court, under Article 226, is not the appropriate forum to look into private
disputes involving land and other matters. Further, the court observed that any one of the
respondents needs to be a person or authority performing a statutory or public duty to be
amenable to a writ petition.

Further, the position of law in Surya Devi was overruled in the case of Radhey Shyam v.
Chhabi Nath,140 which observed that the writ of mandamus does not lie against a private
person. Further, in Praga Tools Corporation vs. Shri C.A. Imanual,141 the court held that

137
Vishnu S. Warrier, Re-Defining the Definition of "State" under Article 12 of the Indian Constitution, 1
CALJ 39, 43 (2013).
138
Surya Devi v. Ram Chander Rai, (2003) 6 SCC 675.
139
Shalini Shyam Shetty v. Rajendra Shankar, (2010) 8 SCC 329.
140
Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423.
141
Praga Tools Corporation vs. Shri C.A. Imanual, 1969 AIR 1306

59
no writ of mandamus will lie against a company incorporated under the Companies Act
under Article 226 since it is not performing any statutory or public function.

One of the latest instances of invoking Article 226 against a private person was ABC v.
Police Commissioner142 , in which the mother of a rape victim filed a writ petition before
the Delhi High Court alleging disclosure of FIR information by the Commissioner of Police
and two media groups and thereby infringing the victims fundamental right to privacy and
confidentiality guaranteed under Article 21 of the Constitution. Here, the court opined that
the respondents performed public functions and, therefore, were amenable to Art. 226.
Similarly, in Ramesh Ahluwalia v. State of Punjab143 , the termination of staff from a
private, unaided school managed by society was challenged. The High Court dismissed the
petition, holding that the petitioner cannot invoke Article 226 as a private unaided school
doesn’t come under the ambit of the state or its instrumentalities.
Another decision along the same line is Ramakrishna Mission vs. Kago Kunya,144 where
the court looked into the amenability of a writ under Article 226 against a private Mission
Hospital. The court vividly looked into what constitutes public function and held that
activities of the Mission, a non-profit entity, are not closely related to those performed by
the state in its sovereign capacity, nor do they partake of the nature of public duty, and they
are not maintainable under Article 226.
Thus, even if we go by Article 226, the greatest extent to grab private actors is under the
test of public function. Thus, the essence of “state action” is diluted in Art. 226 to deal with
the non-state power centers.
The dilemma of whether the public function test should apply only to Article 226 or is
applicable to Article 12 authorities persisted after Zeefilms(supra). Dr. Janet
Jeyapaul v. SRM University145 is such an instance where SRM University was held
amenable to the writ under Art. 32 on applying the public function test. This is completely
opposite to the earlier views. Thus, from the above cases, it is clear that other authorities
under Article 226 are much wider than other authorities under Article 12.

142
ABC v. Police Commissioner, Writ Petition (C) No. 12730 of 2005.
143
Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331
144
Ramakrishna Mission vs. Kago Kunya, (2019) 16 SCC 303
145
Dr. Janet Jeyapaul v. SRM University, (2015) 16 SCC 530.

60
But what is shocking in this current flow of Article 12 is the latest path taken by the
Judiciary in the case of Kaushal Kishor (supra), in which the Supreme Court held that
Articles 19 and 21 could be applied against private entities and other than the State or its
instrumentalities under Article 32. Thus, again, we can see a massive shift in the state action
doctrine used by the Judiciary over decades while interpreting the scope of Article 12. The
majority judgment knocks down the whole foundation of "state" under Article 12.146 The
majority judgment failed to address several issues relating to the horizontal application of
fundamental rights, which shall be discussed in the coming chapter. The final position of
the "instrumentality test or agency test," which the Judiciary crystallized while interpreting
authorities under Article 32, and the "public function test" crystallized regarding Article
226, has been ignored. It is an unconstitutional informal constitutional change.147

I believe that under the guise of transformative Constitutionalism, the whole scheme of
Part III will be demolished if we move in this direction. It is vital to address the lack of
clarity in the Judiciary as to what extent state action should be applied in India. It is
essential to retread the track taken by the Judiciary. One must remember that the whole
object of Part III of the Constitution is to protect the freedoms and rights mentioned therein
against arbitrary invasion by the State.148

3. 9 CONCLUSION

Article 12 of the Constitution gives the definition of state for the purpose of invoking
fundamental rights. Article 12 is not an exhaustive definition, and the terms “local
authorities” and “other authorities” are a penumbra. The legislature has left the definition
open-ended in order to develop it to fit the needs of society, and this role was exploited by
the judiciary. The change in the power centers from the traditional state actors to the non-
state actors led to the dilemma of how to extend the fundamental rights over these private
actors. The Indian Judiciary has widely interpreted Article 12 and tried to find a solution

146
Ashwin Vardarajan, Supreme Court’s Horizontality Judgment: Errors, Omissions and Questions Left
Unanswered, Law School Policy Review & Kautilya Society (last visited June 22, 2024, 2.18 am)
147
Anujay Shrivastava, Indian Supreme Court’s Judgment on ‘Horizontal Application’ of Fundamental
Rights: An ‘Unconstitutional Informal Constitutional Change’?, IACL-AIDC Blog (June 22, 2024,
2.27 am) 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.
148
The state of West Bengal v. Subhodh Gopal Bose and Ors., 1954 AIR 92

61
by incorporating corporations, companies, statutory bodies, societies and many entities
under the veil of State with the help of different tests like the test of ejusdem generis, test
of instrumentality or agency, deep and pervasive control test and many others. The track
taken by the Indian Judiciary was similar to what is applied in countries like the U.S., where
a nexus to the state was needed to perceive non-state actions under the ambit of the state.
All these efforts have been taken by the Judiciary to preserve Article 12 as it holds great
significance. From the catena of decisions, we have seen that the greatest extent to which
the state action under Article 12 was extended is the functional, financial and administrative
control test or the deep and pervasive control test propounded in the Pradeep case(supra).

But at the same time, we should consider that Article 32 is not the only route through which
fundamental rights violations can be addressed. Fundamental rights can be enforced under
Article 226 of the Constitution as well, and it is much broader than Article 32 as it
particularly gives the terms “for any other purpose and against any person or authority.”
Therefore, the High Courts have the power to enforce fundamental rights against other
authorities. This led to the question of whether “other authority” under Article 226 and
Article 32 had the same meaning and limitations. To this, the judiciary, in various instances,
opined that the ambit of Article 226 is much wider than Article 32. To what extent “other
authority” in Article 226 can be widened was looked into in Zee Telefilms Ltd. (supra).

It was the turning point of Articles 12, 32 and 226, where the court clearly determined the
scope of Articles 32 and 226 and held that a private actor performing public function might
not be covered under Article 12 definition of the state, but it will definitely be covered
under Article 226. Thus, Art. 226 facilitates backdoor entry of private actions on
fundamental rights violations.

Therefore, to tackle the issue of private actors' intervention in the fundamental rights of
citizens, there is no need to abolish the state action doctrine altogether. Widening “State”
by the Judiciary in an inconsistent and even unreasonable fashion cannot find a solution.
Justice R. C Lahoti has rightly pointed this out as follows.

62
"Expanding dimension of "the State" doctrine through judicial wisdom ought to be
accompanied by wise limitations else the expansion may go much beyond what even the
framers of Article 12 may have thought of."149

Further, taking track of direct horizontality, as evident in Kaushal Kishor(supra), will not
yield the result as it will make Article 12 merely dead letters. It is justified to impose
fundamental rights obligations upon a private party as long as it continues to be in the shoes
of the State under Article 12150 So instead of taking a pure horizontal approach of
fundamental rights or simply taking in everything under the ambit of “state” under Article
12 by Judicial inventions will ultimately result in defeating the whole purpose of Article
12. Instead, we have Article 226, which is much wider and capable of taking in more private
actors to the extent of “private actor doing public function.” Beyond which is not justified.
Criticisms raised against the state action as a conceptual disaster151 and opinions of Stephen
Gardbaum, Chemerinsky and Mark Tushnet about abolishing it152will not hold good in the
Indian Perspective as we have a protecting net around this state doctrine under Article 226.
So, private entities that are distilled out of Article 12 can be made accountable under Article
226 for fundamental rights violations.153 Article 226 is capable of dealing with the
contemporary issue of new power centers or private invasions of fundamental rights.
Instead of exploiting this route, the judiciary has shattered the whole structure of Part III
by taking everything under fundamental violations under Article 32 under the name of
horizontality, regardless of their identity. This is dealt with in detail in the next chapter.

149
Supra note 121
150
Gautham Bhatia, what is the “State”? – I: Article 12 and Constitutional Obligations, WordPress (June
22, 2024, 2.27 am) https://indconlawphil.wordpress.com/2014/04/26/what -is-the-state-i-article-12-
and-constitutional-obligation
151
Charles L. Black, "State Action, "Equal Protection, and California's Proposition 14, 81 HARV. L. REV.
69, 95 (1967).
152
Stephen Gardbaum, The Horizontal effect of Constitutional Rights, 102 MICH. L. REV. 387,414,418
(2003); see MARK TUSHNET, State Action in 2020, in THE CONSTITUTION IN 2020 69-77 (Jack Balkin
& Reva Siegel eds., 1st ed. 2009); see Erwin Chemerinsky, Rethinking State Action, 80 Nw. L. REv. 503, 522
(1985).

63
 CHAPTER 4
ARTICLES 14, 19 AND 21 OF THE CONSTITUTION AND THE
QUESTION OF HORIZONTALITY

4.1 INTRODUCTION

From the previous chapter, it is clear that we have been following the traditional vertical
application of fundamental rights. In various cases, the Judiciary has diluted this pure
verticality approach by including private actors under the scope of "state" through different
tests. The Judiciary under Article 32, has enforced fundamental rights on private actors by
taking in horizontality also. However, the Judiciary has differing opinions on the scope of
enforcement of fundamental rights on private actions. There are drawbacks to going further
along this same line. The courts have moved beyond the tests to determine state action, and
Article 12 has become insignificant. The chapter discusses the core fundamental rights and
their horizontal application. Further, the chapter examines whether the Constitutional
mandate should be applied against private entities. The drawbacks of this approach are also
looked into.

4.2 HORIZONTALITY AND VERTICALITY – THE TWO POLES

One of the poles represents a vertical approach, which argues that individual rights bind or
impose Constitutional duties only on the government. Accordingly, the Constitutional
mandate is not binding on private interactions. The vertical approach intends to instill a
public-private divide and liberate private affairs from the bounds of Constitutional
regulations.154 This will protect the private sphere's liberty, autonomy, choice, privacy, and
heterogeneity from the four walls of constitutional norms.155They are based on classic
liberalism, concentrating on the State's intrusion over the private sphere.

154
Stephen Gardbaum, The "Horizontal Effect" of Constitutional Rights,103(3) Michigan Law Review, Dec.,
2003, 387 (2003).
155
Id

64
The Zoroastrian Cooperative Housing Society Ltd v. District Registrar Cooperative
societies and others156 depicts the pure verticality approach taken by the Judiciary. Here,
the restrictive covenant of Parsi cooperative society based on religion was challenged as
against public policy and violative of Article 14. The society restricted membership of the
society only to Parsi members. One of the members of the society demolished an old
building and erected flats on the plot with the society's permission on an obligation that
such flats would be sold only to members of the Parsi community. However, respondent 2
negotiated with a non-Parsi person and sought permission from the society for such
transfer, which was rejected. The question was whether the restrictive covenant
contravened public policy under S. 4 of the Local Act, the right to hold and alienate
property under Article 300A of the Constitution and Article 14. Whether public policy
under the Local Act should reflect constitutional values was also raised. The Court
observed, "It is true that our Constitution has set goals for ourselves, and one such goal is
doing away with discrimination based on religion or sex. But that goal has to be achieved
by legislative intervention and not by the Court coining a theory that whatever is not
consistent with the scheme or a provision of the Constitution, be it under Part III or Part
IV thereof, could be declared to be opposed to public policy by the Court."157

The above lines clearly show the reluctance of the Judiciary to take in private actors under
the tag of fundamental rights violation. Further, the Court held that a plausible attack on
the byelaw based on the constitutional scheme would not stand. Freedom to contract cannot
be curtailed for fundamental rights violations. Thus, a pure vertical approach weighs
private and State actions on different scales.

The opposite pole is the horizontal approach, which preaches that the Constitution limits
State and private actors. Constitutional duties are uniformly imposed on government bodies
and private entities, thereby supervising interpersonal relations. Horizontality negates the
private-public divide in Constitutional matters. They criticize the justifications by the
verticalists on the ground that the vertical position automatically privileges the autonomy

156
Zoroastrian Cooperative Housing Society Ltd v. District Registrar Cooperative societies and others, 2005
(5) SCC 632.
157
Id

65
and privacy of citizen-threateners over that of their victim.158The horizontal approach
protects the rights of the victim regardless of whether it is a state or private actor. The
horizontal approach assimilates constitutional values in every individual.159

Further, horizontality is looked into as direct horizontality and indirect horizontality. In

direct horizontality, private entities are directly scrutinized for violation of fundamental
rights without considering the State and non-state distinction, and fundamental rights can
be enforced against all entities. However, in indirect horizontality, the State is involved as
it bridges two private parties through private laws. The law that justifies the private action
against fundamental rights is challenged in indirect horizontality. In indirect horizontality,
the Constitution has a radiating effect on common law or statutory law in the private realm,
and it should be aligned with the Constitution. In the Indian context, direct horizontality
has been applied to various provisions like Article 15(2), 17, 23 and 24. Indirect
horizontality has extended its entry through the expansive definition of "state" under
Article 12. In this study, the horizontality of Articles 14, 19 and 21 is looked into.

4.3 HORIZONTAL APPLICATION OF ARTICLE 14, 19 AND 21

Articles 14, 19 and 21 are considered as the golden triangle of the Indian Constitution.
These fundamental rights play a vital role in the Constitution and do not exist in water-
tight compartments. They are correlated to each other. Initially, the Judiciary took a narrow
view of these rights and held that they are distinct and mutually exclusive. This was
reflected in the case of A K Gopalan v. State of Madras,160 where the Court negated the
correlation of these articles. The same question was later addressed in the case of Bank
Nationalisation,161 where the Court disapproved of the exclusivity theory upheld in A K
Gopalan(supra)162

Later, in Maneka Gandhi v. Union of India,163 the Supreme Court examined the
interrelation between Articles 14, 19 and 21. The Court observed that they are not distinct

158
Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. REV. 503(1985)
159
Supra note 4
160
A K Gopalan v. State of Madras, AIR 1950 SC 27.
161
R. C Cooper v. Union of India (1970) 1 SCC 248.
162
2 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION, (LexisNexis 2010)
163
Maneka Gandhi v. Union of India, (1978) 1 SCC 248

66
and mutually exclusive.164 Therefore, whenever the State curtails Article 14, it should meet
the test of procedure established by law prescribed under Article 21 and the test of
reasonableness under Article 19. Similarly, any procedure established by law taking away
a person's right to life and personal liberty should meet the test laid in Articles 14 and 19.
Therefore, it is not any procedure established by law that can take away the right to life. It
should be a just, fair and reasonable procedure. In the same way, a restriction brought in
against freedoms guaranteed under Article 19 should not only satisfy the reasonable
restrictions mandate in Article 19 but also comply with the test laid down in Articles 14
and 21. Articles 14, 19 and 21 provide the maximum autonomy and liberty to the citizens.

Article 14 has broad connotations. Initially, it wheeled around discrimination and

classifications. Still, later on, through various tests devised by the Judiciary, the scope of
equality started to strike down arbitrariness, irrationality, unreasonableness, natural justice
violations, etc. In cases like Air India v. Nargesh Mirza165, Anwar Ali Sarkar v. State of
West Bengal, 166
and Madhu Limaye v. The Superintendent, Tihar Jail167 , the Court
analyzed Article 14 using the test of reasonable classification.

But this shifted to the test of arbitrariness from the case of E. P Royappa v. State of Tamil
Nadu,168 where it was held that arbitrariness is an antithesis to equality. This was followed
in A.L. Kalra v. Project and Equipment Corpn. of India Ltd.169, D.S. Nakara v. Union of
India170 and many other cases. Again, this test was modified in cases like Shayara Bano
v. Union of India171 and Navtej Singh Johar v. Union of India172 , where the Court has
taken manifest arbitrariness as the mandate for Article 14 violation.

164
Id
165
Air India v. Nargesh Mirza, 1981 AIR 1829, 1981 (4) SCC 335
166
Anwar Ali Sarkar v. State of West Bengal, AIR1952CAL150,
167
Madhu Limaye v. The Superintendent, Tihar Jail, 1970 (1) SCC 525
168
E. P Royappa v. State of Tamil Nadu (1974) 4 SCC 3, 38: AIR 1974 SC 555.
169
A.L. Kalra v. Project and Equipment Corpn. of India Ltd 1984 (3) SCC 316
170
D.S. Nakara v. Union of India (1983) 1 SCC 305.
171
Shayara Bano v. Union of India AIR 2017 SC 4609.
172
Navtej Singh Johar v. Union of India AIR 2018 SC 4321, AIR 2018 SC(CRI) 1169

67
It is well established that Article 14 strikes at arbitrariness in state action and ensures
fairness and equality of treatment.173 The validity of every state action is tested on the
touchstone of Article 14. Fairness in action by the State and non-arbitrariness in essence
and substance is the crux of Article 14.174 The Court reviews any state action when they
act according to their whims and fancies. The Judiciary in various cases like Bachan Singh
v. State of Punjab,175 Mahesh Chandra v. Regional Manager, U.P. Financial
Corporation,176 and A.P.Aggarwal v. Government of NCT of Delhi 177
has particularly
pointed out that Article 14 strikes the unreasonable, arbitrary and irrational actions of the
State in fields of administration, legislation, executive etc. Article 14 ensures that every
state action is based on rational and relevant principles and reasons. It is not discriminatory
and not based on extraneous factors. Thus, it is clear that time and again, the Judiciary has
viewed that the ambit of Article 14 is limited to state action and equality cannot be
mandated in private actions.

This approach is evident in Zoroastrian Cooperative Housing Society Ltd v. District

Registrar Cooperative Societies and others,178 where the Court refused to interfere in the
bye-law of a particular community that limited its membership based on religion. The Court
emphasized that unless there is some legislative intervention prohibiting such
discrimination based on religion, the Judiciary cannot step in and coin a theory that such
practice is against public policy under the Constitution.

We can look into this aspect with different examples. Consider a contract entered by the
State and a private party for constructing a public road and another contract between two
private parties for constructing a private road. In the first one, there is a public law element
in the contract, and the party involved comes under the grab of state definition under Article
12; therefore, it is amenable to writs, and in case of the State imposing arbitrary terms of
the contract, public law remedy can be invoked even if there is alternate contractual remedy
available. The actions of the State, its instrumentalities, other authorities or persons

173
Supra note 168
174
Union of India v. International Trading Co., (2003) 5 SCC 437
175
Bachan Singh v. State of Punjab, AIR 1982 SC 1325
176
Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, AIR 1993 SC 935
177
AIR 2000 SC 205
178
Supra note 156

68
functioning under the guise of State and bearing a public law element are amenable to
judicial review and its validity is tested on the anvil of Article 14.179

However, in the latter situation, the arbitrary terms of the contract cannot be challenged as
a fundamental rights violation under Article 14. It can be challenged as a contractual
dispute in civil Court. Thus, it is clear that even if the State takes in the robe of a private
entity while entering into a contract, it should fulfill the obligation under Article 14. On the
other hand, a private party is not bound by such a mandate and is not subject to scrutiny
under writ jurisdiction.180

Another example is adherence to the natural justice principle enshrined in Article 14. As
an employer, the State should abide by the natural justice principle when taking action
against its employees. But is the same applicable to a private employer dismissing an
employee from a private institute? The answer is apparent: equality comes into play in state
actions, not private ones.

The logic behind such a distinction is clearly to draw a boundary to protect the autonomy
of the citizens. At the same time, not all private acts are exempted from the orbit of Article
14. There are instances where the Judiciary has identified private actions as state actions
and held them violative of Article 14.

One such instance is the case of Charu Khurana v. Union of India181, where the petitioner,
a woman makeup artist, challenged clause 4 in the bye-law of the Cine Costume Artists
and Hair Dressers Association, which prohibited membership of the association to the
women on the ground of violation of Article 14, 19(1)(g) and 21. The Supreme Court
invalidated the clause and held that a trade union registered under the statutory provision
cannot make a rule/regulation/bye-law contrary to the constitutional mandate. In this case,
the trade union was not a state under Article 12; therefore, it was not amenable to the writ.
The Judiciary blindly invalidated the bye-law even after recognizing that the Trade union
is not covered under Article 12. Therefore, this case opened a pandora box of confusion,
taking a stand utterly different from the precedent of the Zoroastrian Cooperative Housing

179
Union of India v. Graphic Industries Co., (1994) 5 SCC 398
180
N.G. Projects Limited (S) v. Vinod Kumar Jain and Others (S). (2020) 16 SCC 489
181
Charu Khurana v. Union of India, (2015), 1 SCC 192

69
Society.182 The Court took a horizontal approach to invalidate the bye-law, which can be
described as an end without reasons or logic. This decision was hugely criticized for its
approach. I also believe that decisions like Charu Khurana were mistakes made by the
Judiciary. The Judiciary should have restrained itself and referred the matter to the
appropriate forum.

In Jeeja Ghosh v. Union of India,183 the petitioner suffering from cerebral palsy was asked
to get off a private airplane, SpiceJet, on account of his disability. Irrespective of being a
private actor, the Court directed the respondent to compensate the petitioner for violating
her fundamental right to equality under Article 14 and dignity under Article 21, read
together with international obligations recognizing the rights of persons with disabilities.

Discrimination and inequality are deeply rooted in Indian grounds. However, under the
label of fundamental right violation, the Judiciary has stretched constitutional mandate over
private choices without a consistent view.

The Judiciary has looked into the actual content of these freedoms and their contours in
various cases, and it has held that these freedoms in Article 19 are not close-ended. The
restrictions and rights are harmoniously constructed so that the restrictions are not
permitted to swallow these rights. Any restriction on Article 19 should have an element of
state action. A private entity cannot bring in restriction on another private person under the
scope of Article 19(2). It is not the intent of that provision. Restrictions are made on the
State's actions. Under such circumstances, there is no scope for horizontal application of
Article 19. The only interference between private parties concerning freedom of speech is
the case of defamation. Here, defamation is a reasonable restriction on Article 19, and a
person can bring action against such defamatory statements. But writ jurisdiction is not the
appropriate remedy. Private laws govern it.

In P.D. Shamdasani v. Central Bank of India,184 the petitioner held five shares in Central
Bank of India Ltd. The bank sold these shares to a third party to recover a debt owed by
the petitioner. The petitioner challenged this transfer on the ground that it violated his

182
Supra note 156
183
Jeeja Ghosh v. Union of India, (2016) 7 SCC 761
184
P.D. Shamdasani v. Central Bank of India, 1952 AIR 59

70
fundamental rights enshrined under Article 19(1)(f) (right to acquire, hold, and dispose of
property) and Article 31(1) (protection against compulsory acquisition of property). The
Court dismissed the writ on preliminary grounds. Looking into the language and structure
of Article 19, the Court held that it is intended to restrict state action other than the
legitimate exercise of their power and not to look into violations of property rights by
individual entities. Thus, the Judiciary took a pure vertical approach to Article 19.

The right to life and personal liberty is guaranteed under Article 21. Though couched
negatively, it provides that no person should be deprived of his life and personal liberty
unless through a procedure established by law.

For the first time, the Court discussed the enforcement of Article 21 against a private person
in the case of Vidya Varma v. Dr. Shiv Narain Varma.185 It dealt with a writ petition filed
under Article 32 for a writ of habeas corpus filed on behalf of Vidya Verma against her
father, Dr. Shiv Narayan Verma. The Court observed that the detention was not by an
authority under the definition of State under Article 21. The Court, relying on the dissenting
opinion of Justice Patanjali Das in A K Gopalan v. State of Madras186and the ratio in P.D.
Shamdasani v. Central Bank of India,187 dismissed the petition holding that Article 21
violation by a private person cannot be invoked under Article 32. The ratio in Shamdasani
was discussed earlier. In A K Gopalan, the dissenting judge opined, "It is a misconception
to think that constitutional safeguards are directed against individuals. They are, as a rule,
directed against the State and its organs. Protection against violation of the rights by
individuals must be sought in the ordinary law." 188 Therefore, the initial approach of the
Judiciary was vertical.

The Judiciary later shifted from considering fundamental rights as the negative right to a
positive obligation of the State in various cases to fulfill its international human rights
obligations. One such instance is Vishaka v. State of Rajasthan,189where the Court issued
guidelines in line with international conventions in the absence of legislative guidelines to

185
Vidya Varma v. Dr. Shiv Narain Varma, AIR 1956 SC 108
186
supra note 160
187
Supra note 184
188
Supra note 181
189
Vishaka v. State of Rajasthan (1997) 6 SCC 241.

71
check sexual harassment of women in public and private workplaces. Here, the State was
held liable for violating Articles 14, 19 and 21 of the petitioners and directed to take steps
as envisaged in the guidelines within a reasonable time. In this case, we can see
enforcement of fundamental rights against private actors, though horizontality was not
discussed.

After five years, the apex court in Medha Kotwal Lele v. Union of India190 looked into
petitions filed by women organizations complaining about the non-formation of complaint
committees following the Vishaka guidelines in various public and private establishments
to look into sexual harassment in workplace cases. The Court directed such public and
private institutions to implement the Vishaka guidelines within two months as it violates
the rights under Articles 14, 19 and 21.

From the outside, we might feel that both Vishaka and Medha Kotwal applied horizontality.
Still, it is crucial to note that public and private discrimination was challenged in these
cases, and the State was a respondent. On both occasions, the Court held that the State
curtails Articles 14, 19 and 21 and has a positive duty to regulate private actors so that these
rights are not violated.191Therefore, the approach of the Judiciary in the above cases cannot
be generally applied in all cases where Articles 14, 19 and 21 are violated because I believe
that the Judiciary took in private actors within the grab of writ jurisdiction as there was no
specific legislature dealing with sexual offenses in the workplace; even the criminal law
didn't address the offense at that time. The Judiciary had no other means to protect the
rights of the victim. The Judiciary issued such guidelines to fill in this lacuna and treated it
as a fundamental right violation. If there were legislation specifically dealing with sexual
offence at the workplace, the question of fundamental rights violation would never have
arisen. Instead, it would have been a statutory offence.

Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297.

190

191 Gautham Bhatia, Horizontality under the Indian Constitution: A Schema, Constitutional Law and
Philosophy, ISSUES IN CONTEMPORARY CONSTITUTIONAL LAW, WITH A SPECIAL FOCUS ON
INDIA AND KENYA,( June 22 2024, 7.29 pm) https://indconlawphil.wordpress.com/
2015/05/24/horizontality-under-the-indian-constitution-a-schema/

72
Tracking the same line of thought, in Bandhu Mukti Morcha v. Union of India,192 the
Court looked into a public interest litigation that addressed the deteriorated State of
workmen engaged in quarries in the State of Haryana. The workers lived in inhumane,
unhygienic and extreme situations like bonded laborers. Their families lived near the
quarries without proper shelter, food and other amenities. The Court formed a committee
to investigate the matter, and the report submitted showed that the allegations were true.
The Court held that being a welfare state, it is the positive duty of the State to provide
proper working conditions to the workmen engaged in such activities and asked the State
to take proactive steps to protect the workmen from the employers. The Court observed
that the State should monitor these employers to ensure that they abide by the law, and if
there is any vacuum in the law, the State should take appropriate steps. Also, the State was
asked to levy special cess from these activities to be used for the welfare of the workers.

The Court was confused about who should be accountable for ensuring educational
facilities for the children of the quarry workers. The Court could have made the State
Government or the employer responsible. The employer was made responsible for
providing adequate healthcare, working conditions, sanitary facilities, shelter, food, water
and educational facilities to the workers and their family members. Thus, the Court made
the State and the employer equally responsible for safeguarding the workers' rights. The
Court didn't discuss horizontality as the State was directly present in the case.

In M C Mehta v. Union of India,193 the petitioner sought the closure of units of Shriram
Foods and Fertilizers Ltd., particularly after the oleum leak incident. The Court weighed
its duty to protect the fundamental rights of the citizens over the existence of alternate
remedies in the ordinary civil Court available for granting compensation. Therefore, seeing
it as an exceptional violation of Article 21, the Court held that Article 32 has a remedial
scope for awarding compensation. The Court discussed the expansion of Article 12 through
tests devised in various cases. Still, it refused to answer whether a private corporation like
Shriram Food and Fertilizers Ltd. falls within the ambit of Article 12. The Court, taking in
the tortious principle of strict liability under Rylands v. Fletcher,194 directed the Delhi

192
Bandhu Mukti Morcha v. Union of India, (1991) 4 SCC 177
193
M C Mehta v. Union of India, 1987 AIR 1086
194
Rylands v. Fletcher, 1866 Law Report 1 Exchequer 265

73
Legal Aid and Advice Board to take up the cases of all those who claim to have suffered
on account of oleum gas and to file actions on their behalf in the appropriate Court for
claiming compensation against Shriram. It is clear that the Judiciary, in this case, took a
different approach than giving direct compensation; instead, it directed the matter to the
proper forum. Since the Judiciary could not determine the identity of the Corporation, they
refused to set up the machinery to look into the claims for compensation. This was the right
approach.

M.C Mehta v. Kamal Nath195 dealt with environmental degradation and pollution caused
by private entities by illegally discharging effluents and blockage of river Beas. The writ
was filed as a PIL by the victims claiming compensation for such severe pollution attributed
to the factories. The counsel for the respondent contended that compensation under Article
32 could be claimed by the victims against arbitrary executive action or atrocities from the
public authorities cast with public duty, not to impose fines on these private entities. The
Court held that it could not directly impose a fine for any pollution under Article 142 unless
the trial procedure prescribed under the statute is followed and the person is found guilty.
However, under the scope of Article 32, relying on the public trust doctrine and polluter
pays principle, the Court directed the motel owners to pay compensation for restitution of
the environment and remove the constructions that caused pollution.

Further, the Court observed that pollution is a civil wrong and a tort; therefore, civil remedy
can be obtained under a specific statute in the form of a fine. Also, as a constitutional tort,
the Court, under Article 32, can direct the entity to pay compensation. Here, the Court
failed to discuss the enforcement of fundamental rights on private entities. Merely
determining the issue as an Article 21 violation and failing to follow the fundamental duties
under Article 51 A(g), the Court delivered the judgment without paying much attention to
the person against whom the writ was filed. This approach is evident in many cases where
the Judiciary mechanically looks into fundamental right violations, disregarding the
concept of "state" under Article 12.

195
M.C Mehta v. Kamal Nath, (2000) 6 SCC 213

74
In Bodhisatwa Gautam v. Subra Chakraborty,196 the Court considered rape as an
infringement of the right to life under Article 21 and awarded interim compensation to the
victim. Here, a criminal complaint was registered by Subra Chakraborty, who was a student
of Baptist College, Kohima, against a lecturer, Bodhisatva Gautam alleging offences under
S. 312, 420, 493,496, 498A of IPC for deceiving her to marry, committing rape, forced
abortion and other offences. The accused filed a petition before the High Court to quash
the complaint and proceedings initiated against him. On dismissal of the said petition, an
SLP was moved before the Supreme Court. The Court held that fundamental rights can be
enforced against private bodies and individuals.197 Thus, the approach of the Judiciary was
in favor of horizontality.

In this case, the Court relied on Rudul Shah v. State of Bihar 198 and Peoples' Union for
Democratic Rights (through its Secretary & Anr.) v. Police Commissioner, Delhi Police
H.Q.s. & Anr.199 to justify its jurisdiction in awarding compensation to the victim.
Similarly, in Chairman, Railway Board & Ors. v. Chandrima Das and Ors200 ,
compensation was awarded to the victims. But the difference is that in all these cases, the
ultimate burden of the compensation was cast on the State under its positive obligation, as
rape is a fundamental right violation. However, the Court failed to distinguish these factors
in Bodhisattva Gautam(supra).

At this juncture, it is pertinent to note that certain offences have different shades. For
example, rape is a criminal offence; at the same time, it is treated as a fundamental right
violation in various cases. Here, a remedy in the form of compensation can be retrieved
from the civil Court in ordinary proceedings or through writ. While compensation is
claimed against the State, writ remedy is used as a public law remedy and against a private
person, one can take the civil law mechanism to claim compensation. This aspect was also
not looked into in the Bodhisattva Gautam case.

196
Bodhisattva Gautam v. Subra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
197
Id
198
Rudul Shah v. State of Bihar, AIR 1983 SC 1086.
199
Peoples' Union for Democratic Rights (through its Secretary & Anr.) v. Police Commissioner, Delhi Police
H.Q.s. & Anr (1989) 4 SCC 730.
200
Chairman, Railway Board & Ors. v. Chandrima Das and Ors, 2000 (2) SCC 465

75
In Parmanand Katara v. Union of India,201 the apex court elevated the right to medical
aid as an essential element of Article 21. The writ petition was filed under Article 32 as a
PIL against the significant number of accident cases neglected by the hospital authority in
fear of the legal issues that may follow after such medicolegal cases. The question before
the Court was whether the medical authority could provide adequate emergency treatment
to the accident victims without complying with the cumbersome legal procedures and
proceedings that may follow. The Court held that the State has a positive duty to preserve
the life of the citizens under the Constitution. Further, this state obligation also extends to
doctors in the Government hospitals to provide medical assistance. Though horizontality
was not directly discussed in this case, it comes into the picture when the same obligation
is cast on all the medical institutions and doctors to provide services to emergency patients
without delay and preserve the lives of the citizens. Thus, the Judiciary has taken a
horizontality approach concerning infringement of Article 21.

In Consumer Education and Research Centre v. Union of India,202 a writ petition under
Article 32 was filed by an organization in the public interest addressing the rising
occupational accidents, diseases and the deteriorating conditions of the workers. The
petitioner sought the Court to issue directions to all industries to maintain proper health
records and provide mandatory health insurance to the workers. It also sought directions to
be issued against the authorities to form a committee to look into these matters and the
appropriate government to extend the benefits of the Factories Act and other legislations to
these workers.

Looking into the matter, the Court held that the right to the health of a worker is an integral
element of the right to life under Article 21. The Court reading Article 21, along
with Articles 39(c), 41 and 43 of the Constitution, held that the State and the industry,
whether public or private, are responsible for providing all such facilities to safeguard the
health, strength and vigor of the workmen during employment, leisure and after
retirement.203 The Court observed that in appropriate cases, the employer, whether it be a
public authority, industry or even private person, is bound by the directions issued by the

201
Parmanand Katara v. Union of India, 1989 (4) SCC 286
202
Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
203
Id

76
Court under Article 32. Thus, again, the Judiciary reflected a horizontal approach to enforce
Article 21. Here, the Judiciary neglected the scope of Article 12.

Horizontality was applied in educational institution cases. Initially, in the case of the
University of Madras v. Shanta Bhai204 applying the state action doctrine, the Court held
that the university is not a State within Article 12 on the ground that they do not perform
any government function even if they may be aided and maintained by the State. Later on,
state-maintained educational institutions were considered State under Article 12.205 The
status of State maintained and aided educational institutions evolved in line with the
evolution of state action doctrine through different tests. However, private institutions were
left outside the State's regime under Article 12. These private educational institutions were
later on amenable to writs under Article 226 through the public function test.206 However,
a change in this jurisprudence is evident after the case of Janet Jaya Paul v. SRM
University,207where the Court held that SRM University is a State under Article 12. The
Court solely relied on the public function element of the educational institution and
observed that it did all the functions similar to other universities covered under the UGC
Act to categorize it under Article 12. After Unnikrishnan v. State of Andhra Pradesh208 ,
the right to primary education was read as a fundamental right under the right to life and
later brought in as Article 21A.

Whether Article 21A mandate should be applied to all educational institutions was a
frequent question raised before the Judiciary. This was reflected in the cases of T.M.A. Pai
Foundation v. State of Karnataka 209 and P.A. Inamdar v. State of Maharashtra.210 In
Unaided Private Schools of Rajasthan v. Union of India,211 the apex court discussed the
scope and applicability of the Right to Education Act, 2009 and Article 21A on unaided

204
University of Madras v. Shanta Bhai, AIR 1954 Mad 67
205
Ashalata d/o Baboolal v. M.B. Vikram University, AIR 1961 MP 299, Smt. Ena Ghosh v. State of West
Bengal AIR 1962 Cal 420, Krishna Gopal Sharma v. Punjab University Through its Registrar AIR 1966
P&H 34 and B.W. Devadas v. Selection Committee, Karnataka Engineering College AIR 1964 Mys 6
206
Trehan & Pande, Application of fundamental rights against Educational Institutions in India: Moving
beyond the State Action Doctrine, 4(4) Comparative Const. L. Administrative L. Quarterly 15 (2020).
207
Janet Jaya Paul v. SRM University, 2015 (16) SCC 530
208
Unnikrishnan v. State of Andhra Pradesh (1992) 3 SCC 666
209
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
210
P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537
211
Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC

77
non-minority schools. The constitutionality of Section 12 of the Right of Children to Free
and Compulsory Education Act, 2009 was challenged on the ground that it violated Articles
19(1)(g) and 30 of those who had established schools in the private sector.

The petitioner contended that constitutional obligation on the State could not be transferred
to private educational institutions so as to abrogate Article 19(1)(g), Article 26(a), Article
29(1) and Article 30(1) of the Constitution. On the other hand, the respondent contended
that the State should realize the object of the RTE Act and Article 21A even through state
and private actors. Further, they submitted that under the RTE Act, the state obligation is
passed on to private institutions based on the social inclusiveness principle. The majority
held that S. 12 of RTE was only a reasonable restriction on Articles 19(1)(g) and 30 of the
private educational institutions and held that it is applicable to all educational institutions,
including State, aided or unaided institutions, minority and non-minority institutions. Thus,
Article 21A was applied horizontally.

The dissenting judge, Justice Radhakrishnan, negated the respondent's contention and took
a vertical approach. He observed that though many socio-economic goals are elevated to
fundamental rights, Article 21A cast a positive obligation on the State to provide
compulsory education and not on unaided minority and non-minority institutions. The
private institution is cast with only a negative obligation not to interfere with the rights of
the children. The Court further observed that when socio-economic goals are elevated to
fundamental rights, such rights are available against the State and not private actors, like
private schools, private hospitals etc., unless they get aid, grants or other concessions from
the State. 212 He reiterated that the State cannot fix quotas or reservation policies in private,
unaided educational institutions as it is a severe infringement of the rights and autonomy
of private institutes.

However, there was a shift in this approach when the High Court of Kerala looked into the
question of horizontality in the case of Sobha George Adolfus v. State of Kerala.213 In this
case, the petitioner filed the petition challenging the denial of promotion of her grandson
from 6th grade to 7th grade in a minority institution. The petitioner relied on the Non-

212
Id
213
Sobha George Adolfus v. State of Kerala, WP(C). No. 30712 of 2015 (L)

78
Detention Policy ("NDP") envisaged under Section 16 of the RTE Act to challenge the
impugned denial of promotion. The Court observed that RTE is not applicable to minority
institutions. At this outset, the Judiciary had two options: either viewing the non-detention
provision as a statutory provision and not granting relief to the petitioner or viewing the
statutory provision as a fundamental right guaranteed under Article 21 and providing relief.
The Court here dealt with the question of whether fundamental rights can be enforced
against a minority institution, which is a private actor. Taking into consideration various
instances where the Judiciary has applied horizontality, the Court took the latter view and
held that fundamental rights can be enforced horizontally against private minority
institutions. The Court looked into S. 16 of RTE as an epitome of the best interest of the
child. It held that denial of promotion up to the elementary school level is an infringement
of the fundamental right of the child under Article 21. This is a perfect example of how the
Court looked into the question of the enforcement of fundamental rights against private
institutions through the statute.

Thus, the Judiciary reflected a horizontal approach in Sobha Adolfus's case, which is
entirely different from the earlier vertical approach in the Unaided Private School's case.
This itself shows that the Judiciary lacks clarity in the application of horizontality.

In R. Rajagopal v. State of Tamil Nadu214 , an accused called Auto Shanker, who was
undergoing life imprisonment, wrote his autobiography with permission from the jail
authority. In his autobiography, his relationship with some senior prison officers was
revealed. He was convicted and punished for the death penalty. Before being hanged, he
sent the book to his wife, which was then announced to be published by the petitioners.
The prison authority sent letters to the petitioner alleging that such publication is against
the prison rules and, therefore, not to be published.

Against this, a writ petition filed by the petitioner before the High Court claiming
infringement of freedom of the press, speech and expression under Article 19(1)(a) was
dismissed. Therefore, a writ petition is filed before the Supreme Court under Article 32.
One of the crucial questions raised before the Court was whether a citizen of the country

214
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

79
can prevent another person from writing his autobiography. Here, the Court held that under
the freedom of the press enshrined in Article 19 (1)(a), the petitioners could publish the
autobiography based on material available in the public sphere. Also, it was observed that
the right to privacy is an intrinsic element of the right to life under Article 21; such
publications cannot invade the privacy of the officers and auto Shanker. The Court stated
that the State and its officials can take action against such publication once it is published
through the private law remedy of defamation and privacy. Thus, even after recognizing
the right to freedom of speech and privacy, the Judiciary directed the parties to approach
the private law remedy to enforce those rights, which is the right approach.

Another instance of a privacy dispute was with Justice KS. Puttuswamy (Retd.) v. Union
of India.215 The constitutionality of the Aadhar Act was challenged on the grounds of
invasion of citizens' privacy. Here, the Court discussed the scope of the right to privacy and
its applicability in state and non-state actors. It was observed that the right to privacy is a
facet of the right to life and personal liberty under Article 21. The majority held that the
right to privacy cast both positive and negative obligations on the State. The negative
obligation of the State is not to interfere in the private space of an individual, and the
positive obligation is to control other non-state actors from abridging the right to privacy.
Justice Sanjay Kishan Kaul observed that the right to privacy can be claimed against private
and State entities.

Further, it was opined that in the recognition and enforcement of privacy rights against
private entities, legislative intervention by the state is required. 216 Therefore, the State has
to regulate the private actors. Thus, the right to privacy was applied horizontally to non-
state actors in the form of the State's positive obligation.

Justice Chalameshwar took a very different approach in the privacy case, which I believe
is the right approach. He observed that claims against privacy invasion can be made against
State and non-state actors. Further, it was rightly observed that an interest may be
recognized as a fundamental and common law right. The right to privacy can be a common
law or statutory right as well as a fundamental right. Where the interference with a

215
Justice KS. Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1
216
Id

80
recognized interest is by the State or any other entity recognized under Article 12, a claim
for violating a fundamental right would lie. But, if an identical interference is made by a
non-state actor, an action at common law would lie in an ordinary court.217 Therefore,
Justice Chalameshwar has tried to uphold the state action doctrine and the idea of
verticality enshrined in Article 12 by suggesting two forums for infringement of the same
right but by two different entities.

Another turning point in the Judiciary's journey of horizontality is the case of Kaushal
Kishor v. State of UP218 , which is dealt with in detail below.

4.4. KAUSHAL KISHOR AND THE CURRENT DEBATE

The recent judgment of Apex Cout in Kaushal Kishor v. State of Uttar Pradesh219 has
taken a new turn in the debate of horizontality. Here, a special leave petition and a writ
petition were tagged together and brought before the Constitutional Bench. A writ petition
was filed under Article 32 to monitor the investigation of a rape case and register a
complaint against the then Minister for Urban Development of the Government of U.P. for
making statements outrageous to the modesty of a rape victim. The SLP arose out of writ
petitions dismissed by the Kerala High Court, which was filed in the public interest against
the derogatory statements made by the then Electricity minister of Kerala. Their prayer was
to issue a direction to the Chief Minister to make a code of conduct for the ministers and
also to take action against the minister for his remarks.

The Court came up with five questions that were of academic interest. One of the crucial
questions was whether the fundamental rights under Articles 19 and 21 could be claimed
against private entities other than the State and its instrumentalities under Article 12.
Another question was whether the State has a positive duty to protect the rights of the
citizens under Article 21, even against the threat to their liberty by acts or omissions of
another person or private agency.

217
Id
218
Supra note 4
219
Id

81
The main issue in the case was whether the right to freedom of speech could be restricted
by another fundamental right, namely, the right to life and dignity of the victim. The Court
viewed this matter as a conflict between two fundamental rights and Article 21 as an extra
restriction on Article 19(1)(a). The Court held that the restrictions provided in Article 19(2)
are exhaustive, and under the guise of conflicting fundamental rights or invoking other
fundamental rights, additional restrictions cannot be imposed on Article 19(1)(a).220

The Court, at length, discussed the concept of horizontality applied in various countries
like the USA, Ireland, South Africa, and the U.K. and compared it with the Indian context.
The Court took a literal interpretation of Part III of the Constitution and suggested that
there existed a dichotomy in Part III, rights that are addressed to the State and those not
directly worded against the State. Therefore, the majority observed that those rights not
explicitly addressed to the State can be enforced against non-state actors. That was a very
illogical reasoning given by the Judiciary. They considered the statement of the minister
inconsistent with the fundamental rights of the citizens as a constitutional tort. The majority
in 4:1 held that Article 19 and Article 21 can be enforced against persons other than the
State and its instrumentalities. On the question of invasion of personal liberty under Article
21, the Court held that the State has a positive duty to preserve Article 21 even from the
non-state actors.

Justice Naga Ratna dissented from the view of the majority on horizontality, considering
the following difficulties. Certain rights are recognized as fundamental rights as well as
statutory rights. Therefore, two parallel avenues for settling the dispute and getting
compensation are available. Taking in everything under writ jurisdiction will disregard the
common law or statutory remedies available. It will contradict the precedents followed in
cases like Zoroastrian Housing Corp. and P. D Shamdasani, which refused the horizontality
approach. It will disregard the whole jurisprudential effort put in by the Judiciary to
interpret Article 12, and the exhaustion of alternate remedies will result in dead letters.
Also, the courts will have to look into disputed questions of fact, which are usually not
looked into in writ matters.

220
Id

82
Therefore, on these grounds, Justice Naga Ratna observed that Articles 19 and Article 21
cannot be applied horizontally. This is a somewhat consistent view of the Judiciary and
reinforces the vertical approach enshrined in the Constitution.

Further, Justice Nagaratna reflected that if fundamental rights can be directly enforced on
state and non-state actors without looking into their identity, then why did the constitution
drafters spend time in drafting Article 12, and why did the Court spend all its time and
effort in interpreting and widening the scope of Article 12. This approach will definitely
devastate the whole concept of Constitutionalism and the basic structure of the
Constitution, as well as narrow down the scope of individual autonomy.

The judgment was heavily criticized as being against the scheme of the Constitution and
an unconstitutional informal constitutional change by the Judiciary. 221 Here, the Judiciary
has completely deviated from the constitutional structure of Part III, enforceable against
the State under Article 12. The majority view is rooted in new principles of law that are
contrary to the original principles of the Constitution.

At this point, it is also relevant to discuss the recent cases filed against WhatsApp and
Facebook, which are challenging their data-sharing agreements that invade the privacy of
individuals. The verdict in Kaushal Kishor has an impact on the data protection cases. Data
privacy violations can be addressed through statutory remedies under IPC, I.T. Act, New
Data Protection Act etc., as well as fundamental right infringement under Article 21.
Plainly going by Article 12, WhatsApp and Facebook are not amendable to the writ under
Article 32 as they are not covered under the ambit of the State. Also, they are not private
entities solely engaged in a public function. Therefore, Article 226 cannot be invoked. But,
with the new track taken by the Judiciary in Kaushal Kishor, fundamental rights are directly
enforced on private entities through a horizontal approach. Therefore, it has opened new
debates.

221 Anujay Shrivastava, Indian Supreme Court’s Judgment on ‘Horizontal Application’ of Fundamental
Rights: An ‘Unconstitutional Informal Constitutional Change’?, IACL-IADC Blog (June 22, 2024, 7.51 pm)
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

83
4.5. CONCLUSION

Throughout this chapter, I have examined various cases in which horizontality has been
applied to fundamental rights under Articles 14, 19, 21 and 21 A. From tracking these cases,
it is evident that the judiciary has come far from the State Action doctrine instilled under
Article 12 of the Constitution. It should also be pointed out that there is a significant
disparity in the way different courts view fundamental rights and horizontality. In certain
cases, private actions are taken by stretching “other authority” under Article 12. In other
instances, certain rights are elevated as positive rights to cast a positive obligation on the
state to regulate private actors or make laws in the private sphere. Similarly, in the latest
case of Kaushal Kishor(supra), we can see a direct application of Article 32 to invoke writ
jurisdiction and enforce fundamental rights against private actors. At this juncture, it is
important to imbibe the words of Justice Seervai, "The greatest danger in the
administration of justice and constitutional interpretation arises from the genuine desire of
judges to do justice in each case."222

Currently, we are going through this great disaster because the Judiciary has routinely
abandoned Article 12 while dealing with fundamental rights. Rather than looking into the
identity of the actor and the nature of the function, the Judiciary has shifted to a right-based
approach under which any Fundamental Rights violation is maintainable under Article 32.
The reasons relied on by the Judiciary are also very illogical. The judiciary doesn’t even
discuss maintainability, as we saw in cases like Bodhisatva(supra) and many others. The
judiciary blindly applies fundamental rights, which is destroying a good precedent system
in India.

Also, under the name of Judicial activism, the judiciary is acting beyond its bounds. Even
when an alternate remedy exists in statutory or common law, Article 32 is recklessly
employed. Also, the alternate and broader route of Article 226 is not applied. Ideally, when
private actions are directly challenged under Article 32, the court should primarily look
into Article 12, and if the alleged party doesn’t comply with Article 12, it should direct the

222
Samarthnayar, Ends without Means or Reasons: Charu Khurana v/s Union of India, Legal service India
(June 22, 2024, 7.51 pm) https://www.legalserviceindia.com/legal/article-2714-ends-without-means-or-
reasons-charu-khurana-v-s-union-of-india.html

84
matter to the High Court for its jurisdiction under Article 226. But this is rarely done by
the Apex Court. I even doubt that the judiciary has taken such a path to portray SC as
proactive and dynamic and also to gain fame. But jurisprudentially, it is a wrong turn.

The jurisprudence behind part III itself is eroding in this circumstance because, firstly, the
negative liberties have been elevated to the status of positive liberties on many occasions.
Secondly, the thread of state action under Article 12, which is a mandatory element for
invoking Article 32 jurisdiction, is relinquished.

Thirdly, the essence of Part III is to preserve a private sphere that is free from interference.
By taking the route of horizontality, this essence itself is lost. Individual autonomy and
liberty hold paramount positions in any country. Private choices should not be subjected to
the constitutional limits set forth for state interventions. Private and State actors should be
looked into through different prisms. Therefore, taking private actions under the writ
petitions for violation of fundamental rights will destroy the whole structure of Part III.
The judiciary has to take a consistent approach while dealing with the encroachment of
fundamental rights by non-state actors rather than taking a case-by-case approach. From
this chapter, it is clear that horizontality will have a direct impact on the concept of “state”
under Article 12. It will be dead letters if we go this track. Rather, the right track is to
invoke Article 226, which is much wider to take in private entities to an extent, as
elaborated in the previous chapter.

85
 CHAPTER 5
COMPARATIVE STUDY OF HORIZONTALITY APPROACH IN
THE US, SOUTH AFRICA AND INDIA

5.1 INTRODUCTION

The scope and application of fundamental rights is a core issue discussed in the field of
Constitutional law. The debate of verticality v/s horizontality has been a hot topic of
discussion in comparative Constitutional law. Many countries applied these concepts at
varying levels. Countries like the U.S. and India have taken the vertical approach firmly
rooted in the "state action doctrine." However, trends in the U.S. are shifting from
verticality to horizontality by expanding the state action. In countries like South Africa,
Ireland and Canada, the Constitution has instilled the horizontal structure, and they have
applied horizontality to varying degrees. In this chapter, the approach regarding the
application of fundamental rights in the USA and South Africa is analyzed and
distinguished. Also, a comparison is drawn with the Indian approach.

5.2 USA

U.S. Constitution put forth the traditional vertical approach by encapsulating the
constitutional axiom of "state action," under which fundamental rights are applied against
state actors and not against private actors. To understand why the vertical approach was
enshrined in the American Bill of Rights, we should trace the history and constitutional
background of the USA. The French and American revolutions paved the way for the Bill
of Rights. Both of these revolutions marked the resistance of the working class against the
bourgeoisie class. They were trying to erect a wall between the private sphere and state
interference. The economic system revolved around feudalism and slavery. The Bill of
Rights reflects the class interest, and its primary function was to limit state intervention
and enhance liberalism and individualism.

5.2.1 STRUCTURE OF BILL OF RIGHTS

The genesis or roots of the Bill of Rights can be attributed to the Magna Carta, 1215, the
English Bill of Rights, 1689, and Virginia's Declaration of Rights, 1776, drafted by George

86
Mason. The Bill of Rights also reflects the Lockean idea of rights. It portrays a social
contract between the State and the citizens in the form of ten amendments to limit the State
and preserve individual liberties.

The Bill of Rights was framed based on the vision and desire of the bourgeoisie class to
have an unregulated economy free from state meddling. They were exclusively enforceable
against the State. The drafters were not concerned if the State would do significantly less
for the citizens but feared they might do too much.223 Looking into the constitutional
debates and preamble to the resolution for introducing the Bill of Rights, we can clearly
affirm that the Bill of Rights was structured to limit the abuse of power by the governor
general and Congress. 224 Initially, as proposed by James Madison, the Bill of Rights was
not applicable to the states. However, in the 1860s, after the ratification of the Fourteenth
Amendment, the Bill of Rights was extended to the state government.

The Bill of Rights is structured as negative rights against the State. The negative wording
is visible in many provisions. For example, look into the due process clause and the non-
establishment clause. These amendments primarily enumerate what the government cannot
do or cast a negative obligation on the State not to do something, thereby protecting
individuals from governmental overreach and ensuring their freedom from interference.
There are no positive obligations requiring state action.

The Judiciary, in various cases, opined that the Bill of Rights is negative liberties and not
positive liberties. In DeShaney v. Winnebago County Department of Social Services,225 a
boy was assaulted by his father. This was addressed before the county's Department of
Social Service, but they didn't take any action to take custody of the child. The issue was
brought before the Supreme Court as a violation of the Due process clause under the
Fourteenth Amendment. The Court clarified that the Fourteenth Amendment does not cast
a duty on the State to protect individuals from private actions. It was emphasized that the
due process clause under the Fourteenth Amendment sets limitations on the State's power

223
David P. Currie, Positive and Negative Constitutional Rights, 53 University of Chicago Law Review 864
(1986).
224
Id p-865
225
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)

87
to act and does not provide a protection of minimum safety and security against private
actions.

Similarly, in Castle Rock v. Gonzales, 226there was a restraining order obtained by a lady
against her estranged husband with respect to their child. The child was kidnapped and
killed by the husband despite the restraining order. A petition was filed against the police
authority for not enforcing the restraining order. The Supreme Court, negating the claim,
held that the due process clause does not cast a positive right to government aid to protect
life, liberty or property.

Similarly, in United States v. Reese,227 the apex court observed that the Fifteenth
Amendment does not guarantee the right of suffrage for everyone; rather, it prohibits the
State from building any barriers to exercising the right and giving preferences based on
race, color, sex etc. There are many other instances where the Judiciary has reiterated that
the Bill of Rights does not cast a positive obligation on the State.

5.2.2 THE STATE ACTION DOCTRINE AND ITS EXPANSION

The U.S. Constitution ushered in the state action doctrine. According to the state action
doctrine, the Bill of Rights is enforceable only against state actors. The private actors fall
outside the ambit of these constitutional norms. State action doctrine is enshrined in the
U.S. Constitution to uphold private autonomy. The drafters believed that if the private
actors were brought under the constitutional mandate, it would put an end to individual
autonomy. For example, under the Constitutional mandate, Congress may not take into
consideration a person's religion when entering into a contract. Still, private actors can look
into religion when they enter into a contract. Similarly, the State cannot support a particular
religion, but individuals can contribute to a church that is purely a private cation and not
violative of the Bill of Rights.228

226
Castle Rock v. Gonzales, 545 U.S. 748 (2005)
227
United States v. Reese, 92 U. S. 214 .
228
Lillian BeVier and John Harrison, The State Action Principle and its Critics,96(8) Virginia Law Review
1767, 1769 (2010).

88
The 14th Amendment instilled the state action doctrine. In Virginia v Rives,229the Supreme
Court observed that the 14th Amendment applies only to "state action" and has no effect on
private actions. After that, in Exparte, Virginia,230 the petitioner, a county court Judge, was
charged under the Civil Rights Act of 1875 for refusing to admit a black American as his
clerk. Under the Act, qualified citizens should not be disqualified based on caste, religion,
color, sex etc. The petitioner filed the writ of Habeas Corpus against this action, claiming
that such a provision of the Civil Rights Act is unconstitutional. The Court emphasized that
a state acts through its legislative, executive and judicial organs, and no agency, officers or
agents who are cast with such power shall deny the equal protection clause to the citizens
and thereby uphold the constitutionality of the Act.

The state action doctrine was again reiterated in the Civil Rights case.231 This was a case
initiated by Black Americans against the practice of "white-only" facilities in theaters,
hotels, and transit companies. During the reconstruction period, Congress passed the Civil
Rights Act of 1875, which attempted to address the racial discrimination deeply rooted in
the U.S. The statute gave everyone access to public places like theatres, transportation,
accommodation centers, etc., regardless of race and color. The business owners challenged
the above Act in the civil rights case. Five lower court cases, United States v.
Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton,
and Robinson et al. v. Memphis & Charleston R.R. Co., were combined and heard by the
Supreme Court. The majority held that the 13th and 14th Amendments cannot have a broader
scope to interfere in private activities even if there is explicit discrimination, and Congress
cannot outlaw such private acts that are discriminatory under S.5 of the Fourteenth
Amendment.

Initially, the state action doctrine was confined only to the Fourteenth Amendment. Later
on, however, it spread explicitly upon all the amendments. One instance is James v.
Bowman, 232
where the respondent was charged under state law for bribing and
intimidating certain persons from casting their votes in the 56th Congress election. The

229
Virginia v Rives, 100U.S. 313(1879).
230
Exparte Virginia, 100 U.S. 339 (1879).
231
Civil Rights cases, 109 U.S. 3 (1883).
232
James v. Bowman, 190 U.S. 127 (1903).

89
Court echoed that the Fifteenth Amendment solely questions the State's actions and does
not contemplate wrongful acts of private individuals.

Similarly, in Parker v. Brown,233 a state agricultural proration program was challenged as

violative of the Antitrust laws, which aimed at prohibiting monopolies and regulating free
and fair competition in the market and contended that such power of the State is not
protected under the commercial clause. The Court held that the state action was protected
under the commerce clause. The state action doctrine was vividly discussed and reinforced.

Another landmark judgment that instilled the state action doctrine was Shelley v.
Kraemer.234 Here, the Supreme Court held that a racially discriminatory covenant is not
violative of the Fourteenth Amendment, but enforcement of such covenant by the state
court was held unconstitutional. Here, the people belonging to the Caucasian race jointly
entered into a covenant in 1911 that restricted the transfer of their property to people
belonging to other races for fifty years. In 1945, Shelly and his family, who belonged to
the African-American race, purchased one of the properties without knowing it. One of the
neighbors, Kraemer, filed a suit to enforce the covenant and challenged the purchase. The
Court clearly appreciated the private sphere and its autonomy; at the same time, the Court
limited the enforcement of private discrimination by the Judiciary, which is a state actor.
This judgment made a significant impact on the residential segregation practiced by white
Americans. Thus, the approach of the Court was purely vertical to limit the actions of
legislative, executive and judicial organs of the State against violation of the Bill of Rights.
However, it had an indirect impact on private actions, as if any private actions, if tried to
be enforced by the Judiciary, take the color of state action. Thus, it became easy to change
private actions into state actions.

Further, the scope of state action with respect to free speech under the 1st Amendment is
illustrated in Herbet v. Lando.235 Here, the petitioner sued the respondent, editor of a
channel, for defamation through television documentaries and articles. The Supreme Court
held that the 21st Amendment does not protect the editorial process to escape the charges

233
Parker v. Brown 317 U.S. 341 (U.S. 1943).
234
Shelley v. Kraemer, 334 U.S. 1 (1948).
235
Herbert v. Lando, 441 U.S. 153 (1979).

90
of libel. The majority negated the respondent's contention that libel cases would have a
chilling effect on the freedom of the press and editorial process. The Court opined that the
editors should take extra care. The dissenting judges, on the other hand, suggested that
more protection should be given to the editorial process. This case portrays how the Court
viewed freedom of speech narrowly and refused to give protection in case of private
disputes like defamation.

In Lugar v. Edmonson Oil Co.,236 the Court applied the state action doctrine while
examining the application of the due process clause on the prejudgment attachment of
property of the petitioner by the respondent Edmond Oil Ltd., which is a private entity. The
respondent filed a petition against the petitioner in the Virginia state court and applied for
a prejudgment attachment on the grounds that the petitioner may dispose of the property to
defraud his creditors. The clerk of state court approved it, and the County sheriff enforced
it. Later, at the hearing, the trial court dismissed the attachment. The petitioner, at this stage,
filed a case before the district court against the illegal attachment undertaken by the
respondent along with officers of the State on the grounds of violation of the due process
clause. Here, the Court observed that the Fourteenth Amendment can be applied only
against state action. Further, it was emphasized that the state action doctrine conserves the
sphere of individual freedom by limiting the reach of federal law and federal judicial
power.237

Over the years, the state action doctrine has been largely criticized for its notion that private
and State actions can be perfectly distinguished. The criticism becomes more relevant in
the contemporary period, where the private-public divide is getting blurred. A pure state
action theory indeed fails to understand that private actions can sometimes be closely
linked or supported by state actors, and they are as powerful as state actors in limiting the
liberty of individuals.238 These thoughts triggered changes in the judicial decisions as well.
Consequently, the Judiciary began to expand the state action doctrine in the 1940s to
include even private actions in exceptional situations.

236
Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).
237
Id
238
supra note 228

91
5.2.3 EMBRACING PRIVATE ACTIONS UNDER THE STATE
ACTION DOCTRINE

The trail in the USA is similar to that in India. It has not mechanically interpreted the state
action doctrine. The courts tried to look into private actions as a camouflage of state action
on various occasions. Private actions were considered state action when they perform a
public function, when there is a close nexus between the private action and the State, when
active state involvement is involved or when there is significant state encouragement either
covertly or overtly over the private actions.

The ambit of the State widened mainly to eliminate the racial discrimination and
segregation persistent in the private sphere in the USA supported by the State. After the
decision in Plessy v. Ferguson,239 the separate but equal doctrine became instilled in
American jurisprudence, and its aftermath was the legitimization of many of the Jim Crow
laws in the U.S. at that time until its overruling in Brown v. Board of Education.240

The state action doctrine significantly evolved after the 1940s. After Brown's judgment,
private discrimination became the central point of discussion in the Judiciary. They began
to widen the thirteenth and fourteenth Amendments to embrace private entities. For
example, In Burton v. Wilmington Parking Authority,241 an African American was denied
service in a coffee shop that was functioning inside the garage space of Wilmington Parking
Authority. Burton filed an injunction against the shop for functioning in a discriminatory
and segregated manner, violating the Fourteenth Amendment. Here, the majority opined
that the restaurant was closely linked to the State as it was accepting benefits from the
authority. The parking authority and the restaurant worked in an integrated manner with
respect to finance and functioning. Therefore, the Court held private discrimination as a
state action and violation of the Fourteenth Amendment.

In Cooper v Aaron,242 upholding Brown's judgment, the Court held that schools should
take steps to desegregate their schools in line with the Supreme Court judgment, and the

239
Plessy v. Ferguson, 163 U.S. 537 (1896).
240
Brown v. Board of Education, 347 U.S. 483 (1954).
241
Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
242
Cooper v Aaron, 1958, 358 U.S. 14.

92
State cannot nullify it. Here, the Court observed that any acts performed by a private actor
with the participation or involvement through any management, arrangement finance or
property may also constitute state action.243 In Peterson v City of Greenville, S.C.,244 a
group of blacks was convicted for trespassing at a private restaurant that provided
segregated facilities to black Americans and white Americans. The Court took a very
prospective approach. Here, the restriction brought in by the private restaurant owner was
elevated to state action as it is backed by an ordinance passed by the city authority, which
is a state agent, that required the restaurants to operate on a segregation basis. Here, the
private actor is not left with any choice but to follow the authority's explicit ordinance of
segregation, which was interpreted as state action.

In Jackson v Metropolitan Edison Co.,245 the Court held that a private action could be
treated as a state action if it is established that it has a close nexus to the state action.246 In
Blum v Paretsky,247 the Court took the view that if there is enough coercive force or
encouragement from the State in a particular private action, it is deemed to be a state action.

In Smith v. Allwright,248 private actors performing a government function were construed

as state action, which is similar to the Indian functional test. Also, private actions with the
active involvement of state actors were qualified as state actions.

Further, by analyzing various cases, we can see that the Supreme Court in the U.S. also
practiced the instrumentality or agency test to define the boundaries of the State with
respect to various corporations. For example, the Inland Waterways Corporation was
interpreted as State in Inland Waterways Corp. v. Young, 249and in Lebron v. National
Railroad Passengers Corp.,250 the Court held that Amtrak, a national railway passenger

243
Danwood Mzikenge Chirwa, The Horizontal Application of Constitutional Rights in a Comparative
Perspective, 10 LAW DEMOCRACY & DEV. 21 (2006).
244
Peterson v City of Greenville, 373 U.S. 244 (1963).
245
419 U.S. 345 (1974).
246
Danwood Mzikenge, Supra note 243.
247
Blum v Paretsky, 457 U.S. 991 (1982).
248
Smith v. Allwright, 457 U.S. 991 (1982)
Inland Waterways Corp. v. Young, 309 U. S. 517 (1940)
249

250 Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995)

93
corporation formed by a statute receiving substantial funds from the State constituted State
for individual rights violation.

Thus, starting with the public function test, followed by the close nexus test and
instrumentality or agency test, the Judiciary has widened the scope of the State to include
private actions in exceptional cases. However, the Court strictly refused to enforce the Bill
of Rights in cases where there was no state action. The perfect example is De Shaney v.
Winnebago County Department of Social Services,251 in which the Judiciary clearly
emphasized that the death of a boy by his father's abuse cannot be attributed to state action.
Under the ambit of the right to life, state inaction to protect life cannot be taken in.

Similarly, in Columbia Broadcasting System v. Democratic National Committee,252 the

radio station's policy that refused air time to third parties who aired controversial issues
was challenged. The question raised was whether the radio station that was working under
the license granted by the State to broadcast over airwaves in the public domain should
abide by the First Amendment when it sells air time to third parties. Here, the Court did not
equate the broadcasting company with the State and held that their policy did not violate
1st Amendment.

Further, purely private action was challenged in Flagg Brothers Inc. v. Brooks; here, the
respondent was evicted from her house, and her belongings were kept in the petitioner's
storage. Even after notice of due payments, the respondent refused to pay the charges.
Against the threat of the sale of her possessions, the respondent filed a suit for damages,
injunction and also a declaration on the ground that such a sale violated the Due Process
and Equal Protection Clauses enshrined under the Fourteenth Amendment. The Court
looked into whether Flagg Brother's action could be ascribed as state action. The Court
held that it is purely a private action and cannot be attributed to the State. Therefore, the
claim against the Fourteenth Amendment violation did not stand.

Therefore, the track of cases shows that initially, the Judiciary took a strict and rigid vertical
approach to enforcing the Bill of Rights against the legislative, executive and judicial

251
Supra note 225
252
CBS v. Democratic Nat'l Committee, 412 U.S. 94 (1973)

94
branches of the State. But later on, this verticality approach was loosened by bringing in
more entities under the state action doctrine. However, only private actions that have the
color of state action or close nexus with state or private acts done by stepping into the shoes
of the State were incorporated under the ambit of the Bill of Rights. Purely private actions
were always outside the scope of the Bill of Rights. However, a shift from the pure vertical
approach to absorb tincts of horizontality is visible from the way the Judiciary understood
and interpreted the Bill of Rights in the case of Shelley and New York Times v. Sullivan.253
The aftermath of Shelly was that private discrimination could be made state discrimination
by simply filing a suit against it.254 However, Shelley was not exploited in the subsequent
cases, and it shut the backdoor entry of private actions into state actions.

5.3 SOUTH AFRICA

The History of South Africa has played a vital role in its Constitutional Structure. It has
ingrained the essence of transformative Constitutionalism to rectify the past mistakes of
the apartheid era of institutionalized discrimination. As defined by Karle Klare,
"transformative constitutionalism is a long-term project of constitutional enactment,
interpretation, and enforcement committed to transforming a country's political and social
institutions and power relationships in a democratic, participatory and egalitarian
direction." 255

It envisages a transformative vision rather than the old constitutions based on classic
liberalism.256 Quoting the words of Justice Kriegler, "The fundamental rights and freedoms
guaranteed under the South African Constitution have a depth of meaning not echoed in
other constitutions around the world."257 Therefore, the South African Constitution depicts
a pure horizontal approach guaranteeing individual rights against both private and State
actions.

5.3.1 THE STRUCTURE OF THE BILL OF RIGHTS

253
New York Times v. Sullivan, 376 U.S. 254 (1964)
254
Terri Peretti, Constructing the State Action Doctrine, 1940-1990, 35(2) Law & Social Inquiry 273 (2010)
255
Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. AFR. J. ON HUM. RTS. 146
(1998).
256
Id
257
Du Plessis v De Klerk, 1996 (5) BCLR 658 (CC)

95
The idea of transformative Constitutionalism is reflected in the structure of the Bill of
Rights. Throughout the drafting process, negotiations and discussions have taken place
between people belonging to two ideologies. i.e., the libertarians and liberationist
egalitarians. Libertarianism believed in the classical liberalism concepts that were
perpetuated during the Enlightenment period and argued for a bill of rights, focusing on
individual liberty as a core value rather than equality.258 On the other hand, liberationists
took an egalitarian approach to pave for equality in resources and opportunities and saw
the Bill of Rights as a vehicle for socio-economic upliftment.259 These views had a
significant impact on the structure of the Bill of Rights.

The Bill of Rights is structured as positive rights, creating a positive obligation on the State
to protect these rights. S.7(2) is the epitome of these positive rights, imposing a duty on the
State to protect the Bill of Rights of the citizens. S. 7 specifically attached four duties to
the State, i.e., "to respect, protect, promote and fulfill the bill of rights," which
comparatively cast a significant burden on the State to be an active guardian rather than a
passive spectator.

The Judiciary, in various instances, recognized this positive role of the State. For example,
in Carmichele v Minister of Safety and Security and Another260, an accused was released
by the authority and during that period, he assaulted another person. The petitioner
approached the Constitutional Court, addressing the State's failure to protect the life of the
petitioner and similarly failing to fulfill its positive obligation to uphold the spirit, purport
and object of the Bill of Rights. The Court heeded the petitioner's contention and observed
that under the Constitution, the State is cast with both the duty not to interfere in the rights
of the citizens as well as to provide appropriate protection to everyone through laws and
structures designed to afford such protection.

258
Lourens M. Du Plessis, The Genesis of the Provisions Concerned with the Application and Interpretation
of the Chapter on Fundamental Rights in South Africa's Transitional Constitution, J. S. AFR. L. 706, 708
(1994).
259
Id
260
Carmichele v Minister of Safety and Security and Another, 2001 (10) BCLR 995 (CC)

96
Further, in President of the Republic of South Africa & Another v Modderklip Boerdery
(Pty) Ltd, 261about 400 people were evicted from municipal land, and these evicted people
took shelter in an adjacent private farm owned by the respondent in 2000. In April 2001,
an eviction order was issued, but the occupiers had no place to go, and they failed to
comply. The number of occupiers continued to increase, and when the owner approached
the police force, they asked for about 1.8 million rands to evict the occupiers, which was
far higher than the actual worth of the land. The issue raised was whether the right to
protection from arbitrary deprivation of property and uncompensated expropriation of
property is breached when the State remains passive in the face of the massive invasion of
the respondent's farm. The failure of the State to provide alternate rehabilitation to the
occupiers and enforce the rights of the private land owner under S. 25 and 26 were
addressed. The Court held that S. 25 and 26 were violated, and the State failed to fulfill its
positive obligation to assist the landowner in claiming his land as well as provide alternate
accommodation to the occupiers. Thus, this case also demonstrates how the positive rights
under the Constitution are interpreted by the Court to enforce these duties.

Further, the Bill of Rights is enforceable against both state action and private action.
Regardless of the identity of the infringer, the Bill of Rights is enforceable, and
constitutional norms will radiate even in private actions. This radiation of constitutional
norms and values on the private sphere is called the horizontal application of the Bill of
Rights. Horizontality in South Africa is explicitly reflected in the textual provisions of the
Constitution.262 Section 8 of the Constitution clearly mentions the application of the Bill
of Rights, under which S. 8(1) mentions the application of the Bill of Rights over
legislative, executive and judicial organs that cover state actions. Further, S. 8(2) mentions
its application to all natural and juristic persons, which clearly implies private actions.

In the interim Constitution, such a provision was absent, and its aftermath was reflected in
De Klerk & another v Du Plessis & others,263 where the Court held that the Bill of Rights
was not applicable against private actions. However, after the final Constitution, this

261
President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd, 2005 (5) SA 3
(CC)
262
Stephen Gardbaum, The "Horizontal Effect" of Constitutional Rights,Vol. 102, No. 3, MCH 387,
401(2003).
263
De Klerk & another v Du Plessis & others, 1995 (2) SA 40 (T)

97
position significantly changed, and under the new structure of the Bill of Rights, both
private and State action was addressed, regardless of their identity. Thus, the positive tone
of the Bill of Rights and the broad scope of addressees mentioned in S. 8 clearly attributed
to the horizontal application of fundamental rights.

5.3.2 HORIZONTALITY UNDER SOUTH AFRICAN

CONSTITUTION

South African Constitution, being one of the newest constitutions in the world, is a refined
version of many other constitutions. The initial interim Constitution reflected the
traditional orthodox approach of Constitutionalism, which was confined to state actions,
and horizontal application was not appreciated.264 Thus, the Judiciary was confused about
deciding the extent to which the Bill of Rights could be invoked against private actors. In
cases like Mandela v Felati,265 the Court accepted the horizontal application of the Bill of
Rights. In cases like De Klerk & another v Du Plessis(supra), the Court held that only a
vertical approach can be taken. In Motala & another v University of Natal,266 the Court
took a middle approach that while some rights may be applied vertically, others can be
applied horizontally. Finally, in Potgieter en "nander v Kilian267, the Court observed that
if the Parliament had the intent to apply the Bill of Rights in private actions, it would have
explicitly mentioned it, and such omission is not accidental but deliberate.

But in Du Plessis v. De Clarke,268the majority took a vertical approach and observed that
"though the interim constitution didn't provide for horizontal application of the bill of
rights, the values inscribed in chapter III will permeate in common law in all aspects
including the private litigation."269 However, the dissenting judge, Justice Kriegler, took a
view similar to the U.S. decision in Shelly v. Kraemer, holding that private entities are at
liberty to do their private affairs as they wish as far as the fundamental rights are concerned.
Further, he illustrated that a landlord is free to refuse to let a flat be left to a person based

264
Debra Smidt, Horizontal Rights, 4 JUTA's BUS. L. 153 (1996).
265
Mandela v Felati, 1995 (1) SA251 (W).
266
Motala & another v University of Natal, 1995 (3) BCLR 374 (D).
267
Potgieter en "nander v Kilian, 1996 (2) SA 27 (N)
268
Du Plessis v. De Clarke ,1996 (3) SA 850 (CC).
269
Id

98
on race and gender. A white bigot can refuse to sell a property to a person of color, and a
social club may restrict entry to blackball Jews, Catholics, Afrikaners or anyone he wishes.
Further, an employee can discriminate based on race, sex etc.; a church may close its doors
to mourners of a particular color or class. But none of them can invoke the law to enforce
or protect their bigotry.270 The dissenting opinion given by Kriegler J. became the subject
matter of a lot of academic debate. Justice Kriegler tried to settle the verticality versus
horizontality debate. He said that Chapter 3 rights do not operate only against the State but
also horizontally as between individuals where Statutes are involved. Thus, the majority
took a vertical approach, and the dissenting judge took a horizontal approach.

All these confusions were cleared when the draft of the final Constitution was structured
in 1996, which incorporated the application of the Bill of Rights on all natural and juristic
persons regardless of the state action concept.

The final Constitution of South Africa has incorporated horizontality in Section 8. Other
provisions like S. 26(3) providing for the right not to be evicted, S. 27(3) providing the
right not to be refused emergency medical treatment, the rights of prisoners to adequate
nutrition and medical treatment under S. 35(2) and rights of children to essential nutrition,
shelter, primary health care and social services under S. 28 also reflect horizontality. S.
29(2) requires courts to interpret legislation or develop the common law in line with the
general spirit, purport and objects of the Bill of Rights, which can be looked into as indirect
horizontality or constitutionalizing the common law.

After the Final Constitution was adopted and its effective enforcement on February 4, 1997,
the first case that raised the horizontality issue was Khumalo vs. Holomisa.271 In this case,
Khulamo, the plaintiff, sued a newspaper for publishing a defamatory article against him.
The editor of the newspaper, who was against this defamation charge, contended that the
defamation law is unconstitutional as it deprives a person of freedom of speech. When the
matter came before the Supreme Court, the Court faced the issue of balancing two
conflicting rights: the right to dignity and reputation of one person versus freedom of
speech of another. Here, the Court held that the defamation law is constitutional and

270
Id
271
Khumalo vs. Holomisa. 2002 (5) SA 401 (CC)

99
consistent with the Bill of Rights. The takeaway from the judgment is that, unusually, in a
private dispute, the S. 16 constitutional right was utilized. The Court emphasized that under
the current trend of potential invasion of constitutional rights by State as well as private
actors, freedom of speech should be applied horizontally as contemplated by section 8(2)
of the Constitution, and common law should develop in the manner contemplated by
section 8(3) of the Constitution. This was very similar to the case of the New York Times
in the U.S. Therefore while dealing with Khumalo,the Constitutional Court of South Africa
applied the Final Constitution, which had come into force then.
The horizontal effect was taken to another extreme by the Constitutional Court of South
Africa in Governing Body of the Juma Musjid Primary School & Others vs. Essay N.O.
and Others,272 wherein it was held that an eviction order obtained by the owner of a private
land on which a public school was located, could not be enforced as it would impact the
students' right to primary education and the best interests of the child under S. 28 and 29
of the South African Constitution. The Court held that a private landowner and non-state
actor has a Constitutional obligation not to impair the right to primary education under S.
29 of the Constitution. The above examples are merely illustrative. The track taken by the
Court in South Africa is consistent and has always echoed horizontality.

5.4 DRAWING A COMPARISON WITH INDIAN APPROACH

Throughout the previous chapters, I have explained how fundamental rights have been
incorporated into the Indian Constitution as negative rights based on liberalist ideas of the
Western revolution. The essence of Part III can be interpreted by looking at the American
Bill of Rights, as the Indian fundamental rights are just a disguised version of the U.S. Bill
of Rights.

Further, it envisages a vertical approach firmly bound to the state action doctrine. The state
action doctrine has been textualized in the Indian Constitution under Article 12. The very
object of defining the State was upholding Constitutionalism or limiting the State's action
over the private sphere. Through various judgments, the Court has widened the ambit of

272
Governing Body of the Juma Musjid Primary School & Others vs. Essay N.O. and Others (CCT 29/10)
[2011] ZACC 13

100
the State and adapted to the contemporary needs to take in even private actors that are
connected to the State.

Initially, it was in the case of the University of Madras v. Shanta Bai,273 where the Court
tried to define the scope of the State under the principle of Ejusdem Generis. Later on, the
instrumentality or agency test was applied, as emphasized in Sukhdev
Singh v. Bhagatram.274Instrumentality tests were improvised in later cases like R.D Reddy
v. International Airport Authority of India and others,275
Sabhajit Tewary v. Union of India276 and Ajay Hasia v. Khalid Mujib.277 Then, through
the deep and pervasive control test in Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology.278

Looking into the evolution of state action doctrine in India, we can clearly see its
resemblance to the track taken by the Judiciary in the U.S. Further, the entry of private
actions is very similar. Under the tag of private parties doing public functions, even private
entities are incorporated in India. This is somewhat similar to the U.S. approach, and purely
private actions were not enforced against fundamental rights violations. Just what we saw
in cases like Zoroastrian Cooperative Housing Society Ltd v. District Registrar
Cooperative Societies and others,279 P.D. Shamdasani v. Central Bank of India280 and
Vidya Varma v. Dr. Shiv Narain Varma.281

But lately, the Court has taken horizontality through different tracks in India. Firstly, private
entities were taken in through the widened definition of State under Article 12. Secondly,
it casts a positive obligation on the State to regulate private actions, as we illustrated in
Bandhu Mukti Morcha v. Union of India282 and many other cases in Chapter IV. Thirdly,
through private laws or statutes, the Court enforces fundamental rights on private actors,

273
The University of Madras v. Shantabai, AIR 1954 Mad 67.
274
Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421.
275
Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489.
276
Sabhajit Tewary v. Union of India, 1975 AIR 1329.
277
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722.
278
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
279
Zoroastrian Cooperative Housing Society Ltd v. District Registrar Cooperative Societies and others, 2005
(5) SCC 632.
280
P.D. Shamdasani v. Central Bank of India, 1952 AIR 59.
281
Vidya Varma v. Dr. Shiv Narain Varma, AIR 1956 SC 108.
282
Bandhu Mukti Morcha v. Union of India, (1991) 4 SCC 177.

101
which is an indirect application of horizontality; fourthly, direct horizontality was applied
to elevate directive principles to the position of fundamental rights and are enforced
through the state and non-state actors. On some occasions, the Judiciary doesn't even look
into the identity of the actor and bluntly takes a horizontal approach.

Thus, tracking through different cases, we can see a shift in the Indian traditional vertical
approach to the horizontality approach, which is way far different from the track taken by
other countries like the USA and South Africa.

5.5 CONCLUSION

On a comparative note, we can say that horizontality differs based on a country's internal
structure and ideologies.283 Comparing the U.S., South Africa, and India, the primary
objective of the Bill of Rights and the structure incorporated in these countries are far
different. India and the U.S. followed a liberalist approach and structured it as a negative
right. On the other hand, South Africa has structured the Bill of Rights as positive rights
based on an egalitarian liberationist approach, which makes it more suitable or adaptable
for a horizontal approach.

Again, the text of the Indian and U.S. constitutions has specifically used the word "state"
throughout the Articles to bind only state actions. The definition of State under Article 12
of the Indian Constitution further makes the vertical approach more rigid. State action
doctrine was enshrined in these constitutions expressly to limit state intervention in the
private sphere. It ingrains Constitutionalism. Accordingly, it aims to maximize the
autonomy and freedom of individuals in the private sphere.

On the other hand, the text in the South African Constitution, specifically S. 8, provides for
a combined approach, taking in both State and private actions under the grab of the Bill of
Rights. It reflects transformative Constitutionalism. The history of human rights
movements in South Africa justifies the reason why the Bill of Rights has both vertical and
horizontal operations. Thus, the constitutional text of the U.S. and India clearly supports a
vertical approach, and South Africa supports a horizontal approach.

283
Mark Tushnet, The issue of state action/horizontal effect in comparative constitutional law, 1(1)
International Journal of Constitutional Law, 79(2003)

102
The difficulty in determining if horizontality or verticality should be applied also depends
on the judicial structure and the role of the Court in different countries. In India, initially,
the Judiciary had a sense of restraint, but now the Judiciary is highly motivated towards
activism, and thereby, it has overtaken the role of other organs. The Judiciary has moved
away from the initial textual interpretation, and now, it is adopting progressive
interpretations that are beyond the lines of the Constitution. Thereby, the Judiciary has
immense discretion. In this scenario, giving more power to the Judiciary to apply
fundamental rights horizontally can result in grave danger, as witnessed in Kaushal
Kishor's judgment.

The position is different in the U.S. as they strongly abide by the precedential system, and
rarely does the Judiciary take an approach different from the established ratios. This is
clearly evident when looking into various cases in this chapter. Further, in South Africa,
the text of the Constitution is pretty much clear, and there is not much penumbra to be filled
in by the Judiciary. Therefore, the element of subjectivity is very limited. Further, the
Judiciary is also included under the ambit of State in both the U.S. and South Africa, which
makes it possible to enforce the bill of rights against the Judiciary. However, in India, only
administrative activities of the Judiciary are incorporated under the state definition; thus,
the violation of fundamental rights by the Judiciary cannot be addressed. Thus, the
Judiciary in India is a double-edged blade with huge powers.

From the above analysis, we can conclude that the USA and South Africa are opposite in
the way they structured the Bill of Rights, interpret the Bill of Rights and look into private
actors. Indian Judiciary has traditionally followed the U.S. approach, and it has shown a
significant shift from this track recently towards the South African approach, which is
inconsistent with the inbuilt constitutional structure and jurisprudence. The state action
doctrine refined and evolved throughout the decade will become toothless with such a
sudden shift in the judicial approach. Moreover, the Judiciary is not the authority to
determine the enforcement of fundamental rights application. If any changes need to be
made to accommodate new power centers other than the State, the legislature should make
such accommodations.

103
Further, both the U.S. and South African approach have their own demerits as they
represent extreme ends in the horizontality/Verticality debate. Therefore, it is always good
to take a middle ground in the debate of horizontality versus horizontality. In India, this
middle road is to remold the state action doctrine compatible enough to take in more power
centers other than the traditional power centers.

The ultimate question is that, with the philosophical shift in the function of the State, the
concept of fundamental rights also shifts. From the above discussion, it is clear that
invoking fundamental rights in private affairs will destroy individual choice and identity.
Thus, a purely horizontal application of fundamental rights like South Africa is not
compatible with the values that are enshrined in the Indian Constitution. Rather, A pure
vertical approach also has its shortcomings. The most appropriate is to stick to the state
action doctrine, and adaptations should be made to the state action doctrine to take in more
entities and more functions under its grasp, just like the U.S. approach.

104
 CHAPTER 6

CONCLUSION AND WAY FORWARD

6.1 SUMMARY

The object of the Constitution is to provide maximum protection of individual rights from
the State or limit the State's action over individual spheres of liberty. The text of the Indian
Constitution envisages enforcement of fundamental rights against state actors and thereby
upholds this doctrine of limited state action. This is evident from the whole structure of
Part III. The concept of "State" is defined in Article 12 only for the purpose of fundamental
rights enforcement. Further, Article 13 provides a definition of law that further suggests
that all activities of the State can be restricted. Where any action of "the State," be it a law
or executive action, does contravene any such right, it is the Judiciary that has been
constitutionally obligated to declare such a law or executive action as invalid.284

To quote the words of Dr. B. R Ambedkar,

"The object of Fundamental Rights is twofold. First, every citizen must be in a position to
claim these rights. Secondly, they must be binding upon every authority which has got
either the power to make laws or the power to have discretion vested in it."285

Therefore, it is clear that Fundamental rights were modeled to protect the core rights from
state intervention because, during that time, the ultimate power center was the State. I have
vividly explained the concept of Constitutionalism or limited state action, which is the
essence of Part III of the Constitution in previous chapters.

But with the advent of time, there has been a shift in these power centers, and it has been a
persistent question whether traditional state-centered understandings of constitutional law
should be supplemented or supplanted by Constitutionalism beyond the State.286 Private

284
India Const. Art. 13.
285
Rajasthan SEB v. Mohan Lal, (1967) 3 SCR 377
286
Gavin W. Anderson, beyond 'Constitutionalism Beyond the State', Vol. 39, No. 3 Journal of Law and
Society 359(2012)

105
actors have evolved and exercise huge powers in private spheres. They perform many of
the traditional governmental functions, and there are close financial, functional, and
managerial relations between the State and these private actors. Thus, the traditional state-
centric approach of fundamental rights is vehemently criticized.

The Judiciary initially began to widen the concept of the State to take in more entities and
more functions within its ambit through various tests, from the ejusdem generis test to the
agency test. The Judiciary also tried to take private actions under the public function test.
Therefore, the Indian Judiciary followed a diluted version of state action doctrine or a
loosened version of verticality.

However, all over the world, we can see new approaches adopted by the Judiciary to rein
in the private invasions of constitutional rights. In this work, I have vividly examined the
approaches of the South African Court and the U.S. Supreme Court regarding the
enforcement of the Bill of Rights. From that, I believe that the South African approach is
not fully adaptable in India as the structure of the Bill of Rights, private law remedies, the
role of the Judiciary, history, and culture is far different from ours. It is, therefore, better to
take a track parallel to the U.S. as we have a lot of similar things, including the structure
of the Bill of Rights, State action doctrine and the idea of liberalism.

The Judiciary has taken up the role of determining the answer to this question, but that,
too, doesn't have much clarity. In Chapter 4, I have elucidated the shift of the Judiciary
from the vertical approach to horizontal to enforce fundamental rights in exceptional cases.
From the trial cases in this work, we can see that the Judiciary took the horizontal approach
through different routes. In certain cases, private entities were taken in through the widened
definition of State under Article 12. On some occasions, the court tried to cast a positive
obligation on the State to regulate private actors. Such an outlook will ultimately lead to
the conundrum of what the scope of such positive duties cast upon the State would be and
to what extent the State must regulate the private actors as part of their positive duties.287 I
believe it is a sharp shift from the negative liberty concept of part III to positive liberties,
and the State cannot be burdened to that extent.

287
Supra note 4

106
Further, in certain cases, direct horizontality was applied to elevate directive principles to
the position of fundamental rights, which are enforced through the state and non-state
actors. On some occasions, through private laws or statutes, the court enforces fundamental
rights on private actors, which is an indirect application of horizontality. In other cases, the
Judiciary hasn't even looked into the identity of the actor and bluntly applied horizontality.
All these approaches adversely affect the concept of "state" under Article 12. It becomes
toothless, and the whole jurisprudential growth in that line becomes worthless.

Also, ultimately, it is the Judiciary that determines against whom fundamental rights are to
be enforced. The Judiciary, while doing so, can take any approach to interpret the
Constitution. Depending on the interpretative technique deployed by the Judiciary, the
horizontality/ verticality routes will also change. Therefore, it can lead to arbitrariness and
uncertainty in the judicial power. This judicial uncertainty was examined and discussed
throughout the 4th chapter through various cases particularly affecting Articles 14, 19 and
21. I submit that under the guise of transformative constitutionalism or living
constitutionalist approach, the Judiciary has taken an inapt approach. The Judiciary should
keep in mind that the nature and structure of the fundamental rights and state action
doctrine enshrined in Article 12 holds epitome value. Though we should depart from the
pure vertical approach, moving far beyond this approach will put fundamental rights in
peril. The whole jurisprudential foundation will crumble.

Other concerns of taking private actions under writ jurisdiction are the concentration of
cases and taking in disputed questions of facts before the Higher Judiciary. Also, how the
Judiciary determines the punishment is also an issue. Supreme Court and High Court can
give fines, compensatory benefits and writ remedies, but they cannot provide grave
punishments like imprisonment etc., that can be provided under statutory remedies. Even
though these are very weak claims, we cannot neglect them.

At the same time, we should consider that Article 32 is not the only route through which
fundamental rights violations can be addressed. Article 226 bestows power on the High
Court to issue writs not only for enforcement of Fundamental Rights. However, the words
for “any other purpose” against “any person or authority” attached to Article 226 give a
wider meaning to it. This led to the question of whether “other authority” under Article 226

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and Article 32 had the same meaning and limitations. In various instances, the judiciary
opined that the ambit of Article 226 is much wider than Article 32. To what extent “other
authority” in Article 226 can be widened was looked into in Zee Telefilms Ltd. (supra).

It was the turning point of Articles 12, 32 and 226, where the court clearly determined the
scope of Articles 32 and 226 and held that a private actor performing public function may
not be covered under Article 12 definition of state, but it will definitely be covered under
Article 226. Thus, Art. 226 facilitates backdoor entry of private actions on fundamental
rights violations.

Therefore, to tackle the issue of private actors' intervention in the fundamental rights of
citizens, there is no need to abolish the state action doctrine altogether. Widening “State”
by the Judiciary in an inconsistent and even unreasonable fashion cannot find a solution.

Therefore, to summarize, constitutionalizing private actions will affect the autonomy and
liberty of the citizens. Further, the judicial interventions will also increase as they can
review the private actions regardless of the legislative framework. For example, The High
Court and Supreme Court in India can take suo motu cases of fundamental rights
infringement. Therefore, even if two private entities themselves choose to do something
that is against part III, there is scope for the Judiciary to interfere and streamline the private
activities. Therefore, the concepts of choice, liberty and freedom will be buried. Finally,
this extension of fundamental rights to private persons shifts authority from commercial or
civil law courts to constitutional courts, rendering private law redundant and superfluous.

Another issue is the unfettered power conferred on the Judiciary to weigh and balance the
fundamental rights. i.e., when two persons with conflicting fundamental rights approach
the Judiciary, they are the sole arbitrators in determining which right will prevail over the
other. For instance, in a defamation case, the right to privacy of one person is in conflict
with the right to freedom of expression of the other person. Similarly, the contractual
obligation of one person can be challenged on the basis of conflicting fundamental rights.
The right to trade can be questioned, as can other persons' right to equality. Therefore, the
whole object and purpose of the Constitution can be destroyed by going in the horizontal
direction. It will automatically result in the prominence of some fundamental rights over
others.

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At the same time, it should be noted that taking a pure vertical approach will not meet the
needs of contemporary society. Many have criticized this pure vertical approach clinging
to state action doctrine. Chemerinsky, for example, suggests putting an end to the state
action doctrine and directly applying individual rights to all actors, government, as well as
private in the U.S. He also opined that courts should not dismiss cases for lack of state
action, and they have to decide all cases based on the merits, balancing the competing
constitutional principles involved in each case.288 However, I strongly oppose this view on
the above grounds of unfettered power going into the hands of the Judiciary and the lack
of clarity and subjectivity of the Judiciary in India. Similarly, a direct horizontal model,
like that in South Africa, is also not suggested. Many of the countries accept neither
position entirely but take a middle position somewhere in the theoretical spectrum between
verticality and horizontality, known as "indirect horizontality."289

From examining a lot of cases and materials on the topic and after a thorough comparative
analysis of horizontality, I strongly negate the horizontal application of fundamental rights
in India. It will destroy the concept of "state" under Article 12 and is a direct challenge to
the concept of Constitutionalism and the basic structure of the Constitution. The right
approach is not constitutionalizing people by directly enforcing fundamental rights against
them but by constitutionalizing the laws in India so that the values of the Constitution will
radiate in private laws dynamically. Also, invoking the writ jurisdiction under Article 226
is enough to take in private actors to an extent, as determined in Zee Films (supra).
Therefore, entities escaping from the hook of Article 32 will definitely be caught in Article
226, and Article 12 will be instilled.

6.2 RECOMMENDATIONS

1. The Judiciary should strictly look into the identity and nature of the entity when
Part III violations are raised before it under Article 32. It should refrain from bluntly
enforcing fundamental rights without looking into state action requirements under

288
Stephan Jaggi, How the German Concepts of Horizontalism and Proportionality Could Improve the US
State Action Doctrine, 30 IND. INT'l & COMP. L. REV. 195 (2020).
289
Bobby Anand, Fundamental Rights – Vertical or Horizontal, Lawyers club India, (June 22, 2024, 8.58
pm)https://www.lawyersclubindia.com/articles/FUNDAMENTAL-RIGHTS-VERTICAL-OR-
HORIZONTAL-218.asp

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 Article 12. The Courts should adhere to the precedents and have clarity on how
fundamental rights should be applied. It should not blindly enforce fundamental
rights under Article 32. From various cases studied in this work, it is clear that the
court, at various instances, has not looked into maintainability, and in some cases,
though it was observed by the court that an entity is not covered under Article 12,
it was not discussed, but the remedy was given in a mechanical fashion.
2. The Judiciary should rein itself when private actions are brought under writ
petitions. When alternate remedies are available, private actions need not be taken
under fundamental rights violation. Though it is the discretion of the Judiciary, such
a practice will automatically corrode the statutory channels of remedy.
3. It is equally important to build a strong system of courts, including civil, criminal,
and tribunals, to provide adequate remedies for private disputes because a right can
be both fundamental and statutory in nature. Many cases are brought under Articles
226 and 32 rather than taking the alternate remedy as it is often stagnant, inadequate
and time-consuming. If these issues are sorted, private disputes can be easily
resolved under private law remedies rather than going for public law remedies.
Even the remedy under statutes is much broader, but for the above-mentioned
reasons, there is an increasing trend of invoking writs.
4. The legislature should remold Article 12 and redefine the State to adapt to the
changing needs; otherwise, it is inefficient in the current scenario of increased
fundamental rights violations by private actors. Further, the judiciary will
elastically widen it with new tests and experiments. The National Commission to
Review the Working of the Constitution (NCRWC) has recommended that an
Explanation be added to Article 12 wherein the word' other authorities' would mean
the authorities whose functions relate to that of a public nature.290 This was an effort
to define the scope of the State under Article 12 and eliminate ambiguity in the term
"other authority." But this yielded no result. Legislative thoughts in this line are
very much needed.

290
NCRWC Report 2002, Ministry of Law & Justice, Government of
India, http://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, (last visited June 22, 2024)

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5. The legislature should make legislation to specifically address private violations of
fundamental rights. If there is statutory law regulating private actions, the litigants
have the option to exploit it rather than invoking the writ jurisdictions under
Articles 32 and 226. For example, data protection laws, POSH, POCSO,
defamation provisions in IPC, and so on provide effective alternative remedy
mechanisms and a range of punishments. These legislations should reflect the
constitutional values.
6. A person aggrieved by the private invasion of fundamental rights should invoke
Article 226, which is an equally efficacious remedy.

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 APPENDIX

THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

Kalamassery, Kochi – 683 503, Kerala, India

CERTIFICATE ON PLAGIARISM CHECK

1. Name of the Candidate Elizabeth K J

2. Title of thesis/dissertation Critical analysis of Impact of Horizontal

Application of Fundamental Rights on the
concept of State under Article 12 – With
reference to Articles 14, 19 and 21
3. Name of the supervisor Dr. Nandita Narayan

4. Similar content (%) 6%

5. Acceptable maximum limit 10%

(%)

6. Software used Grammarly

7. Date of verification 24 June 2024

*Report on plagiarism check, specifying included/excluded items with % of similarity to

be attached in the Appendix.

Name and Signature of the Candidate – Elizabeth K J

Name and Signature of the guide and supervisor - Dr. Nandita Narayan

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