Transformative Constitution and the Horizontality Approach: An Exploratory Study

Abstract

The Constitution of India, especially the Fundamental Rights chapter, has played a massive transformative role in the Indian society. To quote Ananth Padmanabhan, Fundamental Rights mark “a tectonic shift in constitutional philosophy”, a fact that is universally recognised. However, the enforcement of Fundamental Rights has been predominantly vertical, owing to a tacit acknowledgement of the centrality of the State, largely because of our adherence to westernised notions of unitary sovereignty. Apart from obvious scopes for direct horizontality like in Articles 15(2), 17 and 23, the Indian judiciary has been quite reluctant to effectuate the real layered nature of the Indian sovereign model and make Fundamental Rights horizontally enforceable in general. This paper seeks to acknowledge the inherent limitations of the peremptory vision of Fundamental Rights as a negative right imposing constraints on the state; and aims to advocate a positive duty-based approach in order to fulfil the constitutional visions of a transformed society. Developing on recent works by scholars like Gautam Bhatia who have primarily tried to analyse the foundations of horizontality in the areas of non-discrimination etc., this paper seeks to also explore the possibility of such horizontality in areas like free speech, spaces where the private non-state players play a significant role in imposing regulations, which are, more often than not, extra-legal in nature. The concomitant challenges to the centrality of the State in a vertical vision of Fundamental Rights forms the centrepiece of this paper, which seeks to put forward an alternative vision of Fundamental Rights enforcement through an explicit recognition of the horizontality approach in constitutional adjudication.