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Horizontal Application of Fundamental Rights: Benign or Misconceived? | Sujith Nair
In Horizontal Application of Fundamental Rights: Benign or Misconceived? Sujith Nair critiques the recent judgment of Kaushal Kishore v. State of Uttar Pradesh, where the Supreme Court held that Articles 19 and 21 of the Indian Constitution may be enforced even against private parties, a tectonic shift in the prevailing view that fundamental rights may be enforced only against the State and its instrumentalities. The author undertakes a preliminary review of the various types of horizontality – direct & indirect horizontality and positive obligations – taking examples from jurisdictions all over the world. He then delves into the jurisprudence in India – where courts have steadily broadened the applicability of fundamental rights, and with this background, elaborates upon the Pandora’s box of issues with Kaushal Kishore. The author concludes with words of caution on the development of this new avenue of jurisprudence.