Horizontal Effect

What changed in 2023

Kaushal Kishor v. State of Uttar Pradesh, decided 3 January 2023, answered a reference by a Constitution Bench. Two of its five answers matter here.

A fundamental right under article 19 or 21 can be enforced even against persons other than the State or its instrumentalities.

The State is under a duty affirmatively to protect the rights of a person under article 21 whenever there is a threat to personal liberty, even by a non-State actor.

The majority reached the first by tracing the long expansion from "State" to "authorities" to "instrumentalities" to bodies impregnated with governmental character, and treating the enforceability question as one of substance rather than of the identity of the defendant.

The decision has been criticised for not saying how such enforcement is to work procedurally, and it does not disturb the earlier holding that article 19 as such was inapplicable against a private bank. What it does is settle that the vertical characterisation of Part III is no longer accurate.

The American state action doctrine

The Fourteenth Amendment says no State shall, so private conduct is outside it. The Thirteenth Amendment, abolishing slavery, is the exception: it reaches private conduct directly.

Shelley v. Kraemer, 334 U.S. 1 (1948), shows how the doctrine bends. Private covenants excluding persons of a designated race from residential property do not by themselves violate the Fourteenth Amendment, because the Amendment addresses the States. But the actions of State courts and judicial officers in their official capacities are actions of the State, a State acting through its legislative, executive or judicial authorities alike; so in granting judicial enforcement of the covenants the States denied the petitioners the equal protection of the laws.

The reasoning has an obvious difficulty, since every private agreement is ultimately enforceable by a court, and the case has not been extended to its logical limit. The doctrine's other routes are the public function test, for a private body exercising powers traditionally exclusively reserved to the State, and the entanglement test, for a private actor so entwined with government that its acts are fairly attributable to it.

Most American private discrimination is dealt with by statute, principally the civil rights legislation, and not by the Constitution.

The German model

Article 1(3) of the Basic Law binds the legislature, executive and judiciary to the basic rights as directly applicable law. Private parties are not addressed.

Lüth, BVerfGE 7, 198, supplied the answer that most of the world has since borrowed. The basic rights are not only defensive rights against the State but an objective order of values which radiates into every area of law, including private law, so the general clauses of the Civil Code had to be read in the light of the right to free expression.

That is indirect horizontal effect: the right does not create a cause of action between private parties, but no rule of private law may be applied inconsistently with it.

The British position

Section 6(1) of the Human Rights Act makes it unlawful for a public authority to act incompatibly with a Convention right, and section 6(3)(a) includes a court within the definition of a public authority.

That inclusion is what produces British horizontal effect. A court deciding a dispute between two private parties is itself bound to act compatibly, so it must develop and apply the common law consistently with the Convention. The result is the action for misuse of private information described in [Privacy], which arose because the courts were obliged to give effect to article 8 in litigation between a magazine and a couple.

British courts have declined to go as far as full direct horizontal effect, and the position is best described as strong indirect effect.

Comparison

A worked example

A private club refuses membership to a person on the ground of caste.

India. Article 15(2) covers shops, restaurants, hotels and places of public entertainment and public resorts maintained out of State funds or dedicated to the general public; a genuinely private club may fall outside it, and the answer then turns on article 17 if untouchability is involved, on statute, and now on Kaushal Kishor if article 21 dignity is engaged.

United States. No state action, so the Constitution does not apply; the civil rights statutes may, depending on whether the club is a place of public accommodation.

Germany. The Civil Code's general clauses are applied in the light of the equality and dignity provisions.

United Kingdom. The Equality Act 2010, with the court's section 6 duty shaping its construction.

The cases

Facts. Kaushal Kishor v. State of Uttar Pradesh, decided 3 January 2023, was a reference to five judges arising from disparaging public statements by a State Minister about the victims of an alleged gang rape, raising among other things whether articles 19 and 21 may be claimed against anyone other than the State.

Held, by the majority. A fundamental right under article 19 or 21 can be enforced even against persons other than the State or its instrumentalities; and the State is under a duty affirmatively to protect the rights of a person under article 21 whenever there is a threat to personal liberty, even by a non-State actor. The grounds in article 19(2) remain exhaustive, and a Minister's statement cannot be attributed vicariously to the Government by invoking collective responsibility.

Why it matters here. It is the decision that makes the Indian position on horizontality direct rather than indirect, and it is recent enough that most textbooks predate it.

Facts. Shelley v. Kraemer, 334 U.S. 1 (1948), concerned decrees of the Missouri and Michigan courts enforcing private covenants excluding persons of a designated race from occupying residential property.

Held, by Vinson CJ for the Court. The covenants standing alone violated nothing, since the Fourteenth Amendment addresses the States; but the actions of State courts and judicial officers in their official capacities are actions of the State, and in enforcing the covenants the States denied the equal protection of the laws.

Why it matters here. It is the closest American law comes to horizontal effect, and the route it takes, treating the court as the State, is the same route section 6(3)(a) of the Human Rights Act takes by statute.

Facts. Lüth, BVerfGE 7, 198, concerned a call by Erich Lüth to boycott a film by a director who had made antisemitic propaganda under the Nazi regime, and an injunction granted against him under the Civil Code.

Held, by the Federal Constitutional Court. The basic rights are not only defensive rights against the State but an objective order of values radiating into every area of law, including private law, so the general clauses of the Civil Code had to be construed in the light of the right to free expression.

Why it matters here. It is the origin of indirect horizontal effect and the model followed, with variations, in Britain and in most of the Commonwealth.

Distinctions

What beginners get wrong

"Part III binds only the State." Articles 15(2), 17, 23 and 24 are addressed to everybody, and Kaushal Kishor extends enforceability of articles 19 and 21 to persons other than the State.

"Shelley v. Kraemer held racial covenants unconstitutional." It held that judicial enforcement of them is State action; the covenants themselves violated nothing.

"Section 6 of the Human Rights Act makes the Convention horizontal." It makes public authorities, including courts, bound; the horizontal effect follows indirectly from the court's own duty.

"Article 12 was expanded to reach private companies." The instrumentality tests reach bodies dominated or pervasively controlled by government, not private companies as such.

Limits and criticism

Direct horizontality without a procedure is incomplete, and Kaushal Kishor did not say how a private defendant is to be brought before a court under article 32, whose text speaks of enforcement rather than of who may be sued.

The state action doctrine draws an arbitrary line, since a private hospital and a public one perform the same function.

Indirect effect gives no remedy where there is no private law rule to construe, which is why Britain needed breach of confidence to exist before privacy could be protected.

And every system solves most of the problem by statute, which suggests that horizontality is a question about the limits of constitutional law rather than about its content.

Quick revision

1. Vertical: against the State. Horizontal: between private persons. Direct: the right itself. Indirect: through the ordinary law.
2. Articles 15(2), 17, 23 and 24 are horizontal on their face.
3. Article 12 State; Ajay Hasia, AIR 1981 SC 487, indicia; Pradeep Kumar Biswas, (2002) 5 SCC 111, financially, functionally and administratively dominated, control particular and pervasive.
4. Kaushal Kishor, 3 January 2023: articles 19 and 21 enforceable against persons other than the State; a positive duty on the State against non-State threats to article 21.
5. Shelley v. Kraemer, 334 U.S. 1 (1948): judicial enforcement is State action.
6. Lüth, BVerfGE 7, 198: an objective order of values radiating into private law.
7. Section 6(3)(a) of the Human Rights Act includes a court, which produces British indirect horizontal effect.

Test yourself

1. Which Indian rights bind private persons on the face of the text? Article 15(2), forbidding any citizen from being subjected to disability, liability, restriction or condition on grounds only of religion, race, caste, sex or place of birth in regard to access to shops, public restaurants, hotels and places of public entertainment or to wells, tanks, bathing ghats, roads and places of public resort maintained out of State funds or dedicated to the general public. Article 17, abolishing untouchability and forbidding its practice in any form. Article 23, prohibiting traffic in human beings, begar and other similar forms of forced labour. And article 24, forbidding the employment of a child below fourteen in a factory, mine or other hazardous employment.

2. What did Kaushal Kishor change? It answered, for a Constitution Bench, that a fundamental right under article 19 or 21 can be enforced even against persons other than the State or its instrumentalities, and that the State is under a duty affirmatively to protect a person's article 21 rights whenever personal liberty is threatened, including by a non-State actor. That converts the Indian position from indirect horizontality plus four textually horizontal articles into direct horizontality for the two most important rights, which is not the position stated in most textbooks.

3. Explain the Shelley v. Kraemer device and its difficulty. That although private racially restrictive covenants violate nothing, because the Fourteenth Amendment addresses the States, the acts of State courts and judicial officers in their official capacities are acts of the State, so a decree enforcing such a covenant is itself a denial of equal protection. The difficulty is that every private agreement is ultimately enforceable by a court, so the reasoning taken to its limit would abolish the state action requirement altogether; the case has accordingly not been extended, and the doctrine's other routes are the public function and entanglement tests.

4. What is indirect horizontal effect and where does it come from? That constitutional rights create no cause of action between private parties but govern the interpretation and application of the ordinary law that does. Lüth, BVerfGE 7, 198, is its origin: the basic rights are an objective order of values radiating into every area of law, so the general clauses of the German Civil Code had to be read in the light of the free expression guarantee. The British version is statutory in mechanism: section 6(3)(a) of the Human Rights Act includes a court among public authorities, so a court deciding a private dispute must itself act compatibly with the Convention.