The Rehashing of Horizontal rights discourse: Kaushal Kishor v Union of India

January 27, 2023

The Constitutional Bench of the Supreme Court pronounced its judgement in the case of Kaushal Kishor v. The State of Uttar Pradesh on January 3rd, 2023. Amongst other questions framed before the Bench, the question of whether fundamental rights envisaged in Articles 19 and 21 may be claimed against persons other than the “State” or its instrumentalities arose.  The Bench, in a 4:1 majority held that a fundamental rights under Articles 19 and 21 can be maintained against private or non-State actors.

This has one integral implication to constitutional jurisprudence in India; rights that come under Articles 19 and 21 are now horizontal in nature. In order to understand the concept of horizontal rights better, what must be understood is the classical conception of Constitutional rights and how horizontal rights differ from the former. A classical conception of fundamental rights would allow for constitutional rights to only modulate the relationship between the State and its citizens, with constitutional rights acting as a method to constrain the scope of the powers bestowed upon the State and its instrumentalities. Through this, fundamental rights were enforced “vertically”. Traditionally, these “vertical” rights would not apply to actions amongst private individuals. Over the recent decades, Constitutional courts have begun to incorporate “Horizontal” rights, which are rights that can be enforced against non-State, private actors as well.


The concept of horizontal fundamental rights is not unseen in the ambit of the Indian Constitution. In fact, the Indian Constitution, through its enactment in 1950, enabled Article 15(2), one of the first ever horizontal rights, to be applicable within its territorial limits. The Article speaks of non-discrimination on the basis of only of religion, race, caste, sex, place of birth, essentially prohibiting the practice of untouchability in India. In 2012, the Supreme Court affirmed the constitutionality of the Right of Children to Free and Compulsory Education Act 2009. By doing so the Apex Court affirmed the idea that non-State actors must also enforce the right to education, which is available to every child from the ages of 1 to 13. The Court, through MC Mehta, allowed the petitioners to receive a remedy for the violation of their fundamental rights by a private body, based on the well-established environmental law principle of ‘polluter pays’. Additionally, Articles 17 18, 23 and 24 all expressly impose constitutional obligations on non-state actors and incorporate the notion of horizontal application of rights.


Noting these developments in Indian jurisprudence, the Court in Kaushal Kishor noted that although courts earlier were disinclined to enforce constitutional rights horizontally, this outlook has changed. Following the trajectory of horizontal rights jurisprudence, the judgement clearly lays that Articles 19 and 21 have horizontal applicability as well.


Interestingly enough, these proclamations of the enforceability of Article 19 and 21 come at a time where these particular rights are at risk, with major non-State actors such as Google, WhatsApp and Facebook having the ability to infringe upon people’s right to privacy, a right that comes under purview of right to life as per Puttuswamy. Although this seems like a step in the right direction, vis a vis right to privacy, the true implications of such a change in the nature of Article 19 and 21 rights will only be seen through this principle’s application in upcoming judgements.


This blog post was written by our intern Keerthana Shroff, a 3rd year law student of Jindal Global Law School.