Transformative Constitution and the Horizontality Approach: An Exploratory Study
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Type
Article
Date
2019-09
Journal Title
Indian Journal of Law and Justice
Journal Editor
Bandyopadhyay, Rathin
Journal ISSN
Volume Title
Publisher
University of North Bengal
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Sen, S. (2019). Transformative Constitution and the Horizontality Approach: An Exploratory Study. Indian Journal of Law and Justice, 10(2), 141–161. https://ir.nbu.ac.in/handle/123456789/3623
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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.
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Accession No
Call No
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Edition
Volume
ISBN No
Volume Number
10
Issue Number
2
ISSN No
0976-3570
eISSN No
Pages
Pages
141 - 161