This article has neem written by Yashika Gupta, a final-year law student pursuing a B.A. LL.B. at the Sardar Patel Subharti Institute of Law.
Abstract
The horizontal application of fundamental rights is a legal concept that extends constitutional protections beyond the relationship between the state and individuals, applying these rights to interactions between private parties. Traditionally, fundamental rights have been seen as vertical, primarily protecting individuals from government actions. However, the evolving legal landscape has recognized that private individuals and entities, such as employers, businesses, and organizations, should also respect certain basic rights, particularly those related to equality, non-discrimination, and human dignity. This shift has prompted legal systems in various countries to explore the scope and implications of horizontal application, often through judicial interpretation. While some jurisdictions, like South Africa and Germany, have embraced this idea, others, such as the United States, continue to grapple with its boundaries. The horizontal application of fundamental rights can contribute to greater social justice by ensuring that private conduct is aligned with constitutional principles, though it also raises questions about the limits of judicial authority and the practical challenges of enforcement. This abstract explores the key ideas behind horizontal application, its implications for legal systems, and the ongoing debate surrounding its viability in promoting fairness in both public and private spheres.
KeyWords: Constitutional law, Judicial interpretation, Equality rights, Non-discrimination, Human dignity, Legal systems, Social justice.
What are Fundamental Rights?
Fundamental rights form the core of any democratic legal system, ensuring the protection of individual freedoms and equality before the law[1]. These rights are typically enshrined in the constitutions of countries and are considered inalienable, meaning they cannot be easily taken away. They serve as safeguards against any form of unjust state action, discrimination, or violation of personal dignity. In most legal systems, the application of fundamental rights follows a vertical model—meaning the rights are primarily applied to regulate the actions of the state in relation to individuals. This vertical application ensures that governments are held accountable for upholding citizens’ rights, such as freedom of speech[2], the right to privacy, and the right to equality. However, a growing body of legal thought and case law has introduced the concept of horizontal application of fundamental rights. This idea posits that these rights should also regulate relationships between private individuals, organizations, or entities. While traditionally focused on the relationship between the state and individuals, horizontal application broadens the scope of fundamental rights to address violations or conflicts in private contexts.
Meaning Of Vertical vs. Horizontal Application
The primary distinction between vertical and horizontal application lies in the parties involved and the context in which fundamental rights are enforced.
Vertical Application, refers to the enforcement of rights between the state (or other public authorities) and individuals. In this traditional model, fundamental rights impose constraints on the state, ensuring that government action does not infringe upon individual freedoms. This is the most commonly understood application of fundamental rights and serves as a check on governmental power. Examples include the right to free speech, the right to a fair trial, and protection against arbitrary arrest.
Horizontal Application, on the other hand, extends these rights beyond the state’s actions to the relationships between private individuals or private entities. For example, if an employer discriminates against an employee based on their religion, the horizontal application of fundamental rights could provide a legal basis for redress. In this case, the employee could invoke fundamental rights as protections against the discrimination of private entities, rather than solely relying on anti-discrimination laws.
Horizontal Application in Different Legal Systems
The horizontal application of fundamental rights varies across legal systems, influenced by each country’s constitutional framework, judicial approach, and legal traditions.
- United States: In the U.S., fundamental rights are primarily seen as limitations on governmental power. The Bill of Rights[3], for instance, restricts actions of the state but does not directly regulate private conduct. However, the Civil Rights Act of 1964 and other anti-discrimination legislation introduced the idea that fundamental rights such as equality and non-discrimination could extend to private entities, especially in areas like employment and public accommodations. The U.S. Supreme Court has also progressively applied certain rights, such as the right to privacy, to private actors under specific circumstances.
- Germany: Germany’s legal system offers a noteworthy example of horizontal application. Under the Basic Law (Grundgesetz), fundamental rights are initially directed towards the state (vertically). However, through judicial interpretation, the German Federal Constitutional Court has expanded the scope of these rights to bind private individuals and entities. The concept of “indirect horizontal effect” (mittelbare Drittwirkung) allows fundamental rights to influence the way private parties interact, particularly in areas like employment and business dealings.
- South Africa: South Africa’s constitution is one of the most progressive in terms of horizontal application. Section 8 of the Constitution of South Africa extends fundamental rights to both the state and private parties. In cases of discrimination or other fundamental rights violations in private relationships, South African courts have held private entities accountable to the same standards that the government is bound to follow.
- India: India follows a unique approach in which fundamental rights are primarily directed at the state but can have an indirect impact on private individuals through judicial interpretation. While Indian courts have not universally accepted horizontal application, there have been instances where the judiciary has invoked the Constitution to address violations of fundamental rights by private actors. Notable cases like the Vishaka v. State of Rajasthan (1997), which set guidelines for sexual harassment at the workplace, illustrate the judiciary’s effort to apply fundamental rights principles in private domains.
Theories Supporting Horizontal Application
Several legal theories support the horizontal application of fundamental rights, emphasizing the evolving nature of law in contemporary society:
- The Dignity Theory: This theory, rooted in the belief that every individual possesses inherent dignity, suggests that fundamental rights should protect individuals not only from the state but also in their private interactions. Proponents argue that human dignity is a foundational concept that transcends governmental actions and should govern relationships between private individuals or entities.
- The Principle of Equality: The application of fundamental rights in private settings can also be grounded in the principle of equality. If individuals are entitled to equal treatment by the state, then there is a strong argument for ensuring they are treated equally in all areas of life, including within private spheres. This can particularly be seen in laws against discrimination in employment, housing, and access to services.
- Public Policy and Social Justice: Advocates of horizontal application often argue from a public policy perspective, asserting that fundamental rights are key to promoting a just society. By extending these protections to private relationships, societies can reduce instances of inequality and foster a more inclusive social framework.
- Progressive Constitutionalism: Some legal scholars suggest that constitutions must evolve to meet the demands of a modern, interconnected society. The expansion of fundamental rights protections to private actors is part of a broader shift toward progressive constitutionalism, where courts interpret constitutions dynamically, ensuring that rights remain relevant to contemporary challenges.
Judicial Interpretation and Development
Judicial interpretation plays a central role in the horizontal application of fundamental rights. Courts often serve as the key agents in extending these protections, interpreting legal texts in ways that reflect social changes and evolving standards of justice.
In many countries, courts have relied on the doctrine of the “indirect effect” or “vertical-horizontal hybrid approach[4]” to apply fundamental rights between private actors. The idea is that while the state may not be directly responsible for enforcing rights in the private sphere, it may use its legislative and judicial power to influence or direct private entities to respect those rights.
In some cases, courts have crafted “horizontal” remedies, such as orders for compensation, cessation of discriminatory practices, or other corrective actions that compel private entities to comply with fundamental rights standards. For instance, courts may impose obligations on private employers to ensure that their hiring and working practices do not infringe upon employees’ constitutional rights to equality or freedom from discrimination.
Impact of Horizontal Application on Legal Systems
1 Expansion of Judicial Role: Courts would be required to adjudicate disputes between private individuals or entities regarding fundamental rights, increasing judicial workload and complexity in legal reasoning.
2 Increased Litigation: The horizontal application could lead to more legal claims based on fundamental rights in private relationships, resulting in a higher volume of cases in courts.
3 Blurred Public-Private Law Boundaries: It would challenge the traditional division between public and private law, as private entities might be required to respect and enforce fundamental rights in their interactions.
4 Complexity in Balancing Rights: Courts would face difficulties in reconciling competing fundamental rights between private parties, adding complexity to legal interpretations and decisions.
5 Strain on Enforcement: Private individuals or entities may lack the resources or motivation to adequately enforce fundamental rights, leading to weaker protections compared to state enforcement.
6 Legal Uncertainty: The lack of clear standards for horizontal application could result in inconsistent rulings, creating unpredictability in the legal system.
7 Impact on Private Law: Traditional areas of private law, such as contract and labor law, may need to be re-evaluated to accommodate fundamental rights, potentially altering their foundational principles.
8 Economic and Practical Implications: The horizontal application might disrupt business practices and economic operations by imposing new obligations on private entities to respect individual rights.
Challenges and Criticisms
- The horizontal application of fundamental rights is a concept that suggests these rights should extend beyond the state and apply in relationships between private individuals or entities. Traditionally, fundamental rights are viewed as safeguards against state actions, but the idea of horizontal application challenges this framework. One of the primary criticisms of this approach is that it conflicts with established legal traditions, particularly in jurisdictions that operate on the principle that fundamental rights constrain only the state. This shift in interpretation could create confusion and inconsistencies in legal practice. Furthermore, there is no clear consensus on how to apply fundamental rights horizontally, which raises practical concerns about the scope and limits of these rights in private relationships. Without a consistent framework, courts may struggle to establish appropriate guidelines, leading to unpredictable and potentially inconsistent rulings.
- Another major criticism is that the horizontal application of rights could lead to judicial overreach, with courts imposing their interpretations of fundamental rights on private parties without sufficient democratic support. This could undermine the principles of self-determination, as individuals and businesses may be forced to adhere to norms they haven’t agreed to. Additionally, applying fundamental rights to private relationships could limit personal autonomy and the freedom to contract, as individuals and businesses may no longer have the flexibility to structure agreements as they wish. There is also concern that fundamental rights might be diluted or misinterpreted when applied too broadly in private settings, weakening their role as safeguards against state power.
- The horizontal application of fundamental rights also poses challenges in balancing competing rights. In private relationships, one party’s exercise of a fundamental right might infringe upon the rights of another, creating complex legal dilemmas for courts. Furthermore, this approach could lead to the exploitation of vulnerable parties, particularly in cases where smaller entities use fundamental rights as a tool for litigation against larger corporations. This might result in an overwhelming number of legal cases, leading to potential abuses and a burden on the judicial system. Additionally, the horizontal application could interfere with market principles, as private freedoms like the freedom of contract are essential for the functioning of free markets, and imposing public law on private relationships may disrupt this balance.
- Lastly, while the state is typically seen as better positioned to ensure the protection of fundamental rights, private entities may lack the resources or motivation to uphold these rights consistently. This creates a situation where the protection of fundamental rights could be weaker in private relationships, especially in hierarchical power structures such as employer-employee dynamics. In conclusion, while the horizontal application of fundamental rights could potentially offer broader protections and address inequalities in private relationships, it also raises significant concerns regarding legal consistency, judicial overreach, and the balance of competing rights. Legal systems must carefully consider these challenges before adopting such an approach.
Case Studies of Horizontal Application
Case 1: Vishaka v. State of Rajasthan[5]
In India, the Vishaka case marked a significant step in applying constitutional protections against sexual harassment in the workplace. Although the Indian Constitution did not specifically address sexual harassment, the Supreme Court used the fundamental right to equality and dignity to establish a legal framework for addressing workplace harassment in the private sector. This case is often cited as an example of indirect horizontal application of fundamental rights.
Case 2: South African Equality Case
In South Africa, the case of Hoffman v. South African Airways dealt with the application of fundamental rights to prevent discrimination in the private sector. The court ruled that the equality rights enshrined in the South African Constitution applied to all aspects of social and economic life, including private employment practices. This ruling set a precedent for future cases in which private actors were required to respect constitutional principles.
Case 3: Shreya Singhal v. Union of India[6]
The Supreme Court struck down Section 66A of the Information Technology Act, 2000, which criminalized offensive online messages. The Court extended the right to freedom of speech and expression (Article 19(1)(a)) not only against state action but also to private individuals, thus promoting horizontal application. The judgment recognized that freedom of expression should be safeguarded against unreasonable restrictions, whether by the state or private parties.
Case 4: Navtej Singh Johar v. Union of India[7]
In this landmark case, the Supreme Court decriminalized consensual same-sex relations between adults by reading down Section 377 of the Indian Penal Code. The Court held that Article 15 of the Indian Constitution, which prohibits discrimination on grounds of sex, should apply in private spaces as well, thus facilitating the horizontal application of the fundamental right to equality. It emphasized that fundamental rights extend to private individuals and entities where discrimination takes place.
Conclusion
The horizontal application of fundamental rights is likely to continue evolving as societies become more interconnected and as legal systems recognize the broader need for equality and justice in both public and private spheres. While there are challenges, particularly regarding the scope and enforcement of these rights in private contexts, the potential for greater social equity makes horizontal application a powerful tool for promoting fundamental freedoms beyond the state. As legal scholars, courts, and legislators continue to engage with these ideas, the role of fundamental rights in private relationships will undoubtedly grow. The future of horizontal application promises a more comprehensive approach to safeguarding dignity, equality, and justice in all areas of life. Despite these challenges, the horizontal application of fundamental rights could offer important benefits, particularly in addressing social and economic inequalities. By extending protections to individuals in private relationships, it could provide a more inclusive and equitable legal framework. However, to be effective, the legal system must carefully consider how to implement such a shift, balancing the expansion of rights with the need for clear legal standards, efficient enforcement, and respect for individual freedoms and economic principles. Ultimately, while the horizontal application of fundamental rights offers a compelling avenue for greater protection, it requires thoughtful, nuanced integration into existing legal frameworks to avoid unintended consequences and ensure its effectiveness.
Suggestions
- Explore how Indian courts have expanded fundamental rights to private relationships.
- Analyze cases like Vishaka v. State of Rajasthan and Shreya Singhal v. Union of India.
- Look into how horizontal application affects private interactions like employment and housing.
- Discuss challenges of balancing private freedoms with fundamental rights.
- Suggest legal reforms to hold private entities accountable for rights violations.
References
https://www.constitutionofindia.net/
https://indiankanoon.org/doc/73622622/
https://www.indiatoday.in/india
https://timesofindia.indiatimes.com/
[1] Article 14 (Equality Before Law)
Article 21 (Protection of Life and Personal Liberty)
[2] Article 19(1)(a) (Indian Constitution) – Guarantees the freedom of speech and expression in India.
[3] U.S. Bill of Rights (ratified Dec. 15, 1791), U.S. Const. amends. I–X.
[4] The Vertical-Horizontal Hybrid Approach refers to a legal concept that combines elements of both vertical and horizontal application of fundamental rights. In this context, “vertical” application refers to the enforcement of fundamental rights against the state, while “horizontal” application pertains to the enforcement of such rights in relationships between private individuals or entities. A hybrid approach suggests a blending of both approaches, allowing for the protection of fundamental rights not only against state actions (vertical) but also in private actions (horizontal) where appropriate.
[5] Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (India).
[6] Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).