I.  Introduction

This chapter addresses the question of the applicability of Part III of the Constitution to non-State actors. With respect to private individuals and entities deemed not to be ‘the State’ for purposes of Article 12,¹ to what extent, if any, are their actions subject to the Constitution’s fundamental rights provisions?

Let me begin by setting out the general framework for analysing this issue within comparative constitutional law, as it explains why a simple, one-syllable answer is usually not the full one and provides some useful concepts for determining the latter. In terms of whom a bill of rights binds or constrains, the most basic distinction is between ‘vertical’ and ‘horizontal’ effect. Rights with vertical effect apply only against the government, whereas horizontal rights also apply against private actors. For several well-known reasons that need not be rehearsed here, most rights in most constitutions—whether more traditional civil and political rights or less traditional economic, social, and cultural ones—are and have been vertical in nature, with at a maximum only a few exceptional ones being understood as horizontal in application.

Although this distinction drawn in terms of who has constitutional duties to comply with a bill of rights remains a useful starting point, its yes–no answer significantly oversimplifies the reality. For constitutional rights can impact and effectively regulate private actors even in systems that adhere to the basic vertical position. To take a well-known example from Germany, although the Basic Law’s right to free expression applies only to the legislative, executive, and judicial branches of government and not to private persons like the plaintiff, (p. 601) the Constitutional Court overturned on free speech grounds an injunction awarded to a Nazi-era film director against the boycott of his new film organised by another citizen.²

Accordingly, a second distinction has been introduced that emphasises this latter way in which constitutional rights may impact non-State actors: the distinction between their direct and indirect horizontal effect. ‘Direct horizontal effect’ is the position within the basic dichotomy in which constitutional rights bind private actors. Where it applies, individuals can be sued by their fellow citizens for violating their constitutional rights, as for example under the writ of tutela in Colombia or constitutional tort actions in Ireland. By contrast, ‘indirect horizontal effect’ means that although constitutional rights do not directly regulate and impose duties on private actors, they may nonetheless impact and indirectly regulate them. What is ‘indirect’ in the concept is the effect of a constitutional right on an individual, by comparison with the immediate, unmediated, or direct application under the fully horizontal position.

Indirect horizontality typically occurs in one of two general ways. The first is where vertical rights impose an affirmative constitutional duty on the government to protect individuals from certain actions by other private actors; for example, deprivations of their lives or property, or destruction of the environment. Here, constitutional rights indirectly impact private individuals and entities by mandating that the government enact and enforce measures against certain of their conduct that is not itself directly regulated by the constitution. This technique has been prominently employed under the European Convention on Human Rights.³

The second way is through the application of constitutional rights to private law, the rules and standards that structure the legal relationships of individuals inter se. Indirect horizontal effect occurs via the impact of a bill of rights on the law that individuals invoke and rely on in civil disputes, thereby limiting what they can be authorised to do and which of their interests, choices, and actions may be protected by law. So whereas under direct horizontal effect a bill of rights governs all actions, under indirect horizontal effect it governs all laws. By subjecting the provisions of private law to the requirements of a bill of rights, a constitutional system narrows the public–private gap in the scope of those rights. This general technique, as well as the important point that indirect horizontal effect is perfectly consistent with taking a vertical position within the basic dichotomy, is also illustrated by the famous US Supreme Court decision in New York Times v Sullivan invalidating on free speech grounds part of the private law of defamation within a constitutional system well known for its threshold ‘State Action’ requirement.⁴ As a result, the losing plaintiff was adversely affected by the First Amendment that was deemed to govern his legal relations with the newspaper, even though he was not bound by its provisions.

Indeed, here a further distinction has been suggested in the literature between ‘strong’ and ‘weak’ indirect horizontal effect.⁵ The former is where all private law is fully and equally subject Page Id: 601ReferencesBVerfG, Urteil vom 15.01.1958 - 1 BvR 400/51, 1 BvR 400/51, BVerfGE 7, 198, NJW 1958, 254, 15th January 1958, Germany; Constitutional Court [BVerfG]Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No 15 (Council of Europe) 213 UNTS 222, ETS No 5, UNTS Reg No I-2889New York Times Company v Sullivan, Judgment, No 39, 376 US 254 (1964), 84 S Ct 710 (1964), 11 L Ed 2d 686 (1964), 9th March 1964, United States; Supreme Court [US]Storck v Germany, Merits and just satisfaction, App No 61603/00, ECHR 2005-V, IHRL 2970 (ECHR 2005), (2005) 43 EHRR 96, [2005] ECHR 406, 16th June 2005, Council of Europe; European Court of Human Rights [ECHR] IHRL(p. 602) to a bill of rights, regardless of type (common law versus statute, or subject matter) and the nature of the litigation in which it is relied upon (including ‘purely private litigation’ between individuals). By contrast, ‘weak’ indirect horizontal effect means that some or all private law is not fully and equally subject to a bill of rights as compared with other types of government action. An example of weak indirect effect is the situation in Canada, where the Charter of Fundamental Rights and Freedoms does not apply to the common law at issue in private litigation—unlike a statute—although courts are supposed to take its values into account in developing the common law.⁶ By contrast, the common law at issue in private litigation in New York Times was fully and equally subject to the First Amendment (and held to violate it), and in the United States statutes and common law provisions would be treated identically.

In sum, constitutional rights that bind only the government (or some part of it) may have minimal regulatory impact on private individuals: where such rights do not impose protective duties and where they apply only to public law plus private law actions by the government alone—for example, in its capacity as employer or landlord. Here, constitutional rights have little or no horizontal effect at all, indirect or direct. More commonly, such vertical rights can have varying degrees of reach into the private sphere and indirect impact on private individuals, depending on the nature and number of affirmative protective duties and whether the stronger or weaker version of indirect horizontal effect is adopted. And of course, part or parts of a bill of rights may be given direct horizontal effect. Given the development and availability of these various possibilities, analysing the scope of application of a bill of rights only under the rubric of vertical versus horizontal effect, whilst obviously still important, does not provide the full picture of their impact. Accordingly, in discussing the application of Part III to non-State actors in this chapter, I aim to provide this more comprehensive account of the horizontal effect of fundamental rights in India by considering both the traditional dichotomy and the two main techniques of indirect effect in turn.

II.  Direct Horizontal Effect

The Supreme Court has consistently adhered to the general position that the fundamental rights contained in Part III of the Constitution apply only against the government and not against private individuals.⁷ This position is based on the original understanding of the Constituent Assembly,⁸ the text of the two ‘general’ or definitional articles at the beginning of Part III, Articles 12 and 13,⁹ as well as those of several specific rights Page Id: 602ReferencesConstitution of Canada: The Constitution Acts 1867 to 1982 (Unofficial consolidation)(as amended to December 16, 2011) (United Kingdom [gb]) 1867 c.3 (30 & 31 Victoria), 1982 c.11, Schedule BThe Constitution Act, 1982 (1982, c. 11, Schedule B), Part I Canadian Charter of Rights and Freedoms OCWNew York Times Company v Sullivan, Judgment, No 39, 376 US 254 (1964), 84 S Ct 710 (1964), 11 L Ed 2d 686 (1964), 9th March 1964, United States; Supreme Court [US](p. 603) provisions that expressly identify ‘the State’ as the addressee. These include Article 14, prohibiting the State from denying to any person equality before the law/equal protection of the laws; Article 15(1), prohibiting it from discriminating on specified grounds; and Article 16, mandating equality of opportunity in public employment. As the leading treatise writer HM Seervai puts it, ‘Under Art. 13(2) it is State action of a particular kind that is prohibited. Individual invasion of individual rights is not, generally speaking, covered by Art. 13(2).’¹⁰

At the same time, the Supreme Court has found several exceptions to this general position, holding that the subject-less—although not expressly horizontal—provisions of Articles 17 (abolishing ‘untouchability’), 23 (prohibiting human traffic and forced labour), and 24 (prohibiting employment of children below fourteen years of age in factories, mines, or other hazardous occupations) are ‘plainly and indubitably enforceable against everyone’.¹¹ Articles 17 and 23 combined are perhaps the functional equivalent of the sole exception in the US Constitution to its general rule for constitutional rights of the need for ‘State Action’: the Thirteenth Amendment’s prohibition of slavery or involuntary servitude ‘anywhere in the United States’. In addition, both the text and the Constituent Assembly debates of 1947–48 make clear that Article 15(2) prohibits certain types of private discrimination on the basis of religion, caste, race, sex, or place of birth; namely by licensed individuals regarding ‘access to shops, public restaurants, hotels and places of public entertainment’.¹²

The Court deemed this to be such a case, and issued a set of three directions to ‘all the industries’ and three separate ones to the Union and State Governments. In another Article 21 case, the Court suggested in dicta that the right to privacy it had also implied into the right to life may apply against private actors, although the sole defendant was the State police authority.¹⁷

Two additional cases that might be thought to involve application of Part III to private actors do not do so on closer inspection. The 2012 decision in Society for Unaided Private Schools of Rajasthan v Union of India upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act 2009 (RTE), which in relevant part required every school, including unaided private schools, to admit 25 per cent of its class from children belonging to disadvantaged groups and provide free education to them between the ages of 6 and 14, subject to reimbursement at the government school level.¹⁸ The RTE was enacted to implement the new Article 21A of the Constitution, which reads: ‘The State shall provide free and compulsory education to all children of the age of six to fourteen in such manner as the State, may by law, determine.’ By two votes to one, the majority upheld the statute as it applied to unaided non-minority schools, but unanimously invalidated it with respect to unaided minority schools for violating the special right afforded to minorities ‘to establish and administer educational institutions of their choice’ under Article 30(1).

Because the result of the case is that non-minority unaided private schools are required to admit ‘free seat’ children, it might seem as if they are rendered subject to Article 21A. But in fact there is no suggestion in the majority opinion that this recent constitutional amendment itself applies directly to private schools, or indeed any discussion of horizontality at all. Rather, the sole issue was whether the RTE, as a statute, imposes ‘reasonable restrictions’ under Article 19(6) on the right ‘to practise any profession or to carry on any occupation, trade or business’ contained in Article 19(1)(g). In other words, the case was analysed as one about justified limits of a fundamental right and not about horizontal effect. This is confirmed by the long (partial) dissent of Radhakrishnan J, whose argument in essence is that, as a statute, the RTE purports to overrule two prior Supreme Court decisions holding it unconstitutional under Article 19(1)(g) for the State to require unaided private schools to admit certain students, whereas only a properly worded constitutional amendment can do so. Article 21A, however, does not impose the requisite constitutional duties on private schools but only on the State, leaving it to fulfil its obligation by an otherwise constitutional measure, which the RTE is not.

Somewhat less clearly, in the well-known and controversial case of Vishaka v State of Rajasthan (hereinafter Vishaka),¹⁹ the Supreme Court might be understood to have held that Articles 14, 15(1), 19(1)(g), and 21 apply horizontally in finding that they are violated Page Id: 604ReferencesRight of Children to Free and Compulsory Education Act (India [in]) Act No 35 of 2009(p. 605) by every incident of serious sexual harassment that undermines a ‘safe working environment’ and the dignity of the victim. It is less clear because, although there is no doubt that the Court found these constitutional rights had been infringed, both the identity of the infringer and the nature of the infringement are somewhat ambiguous in the judgment. First, because the case involved the brutal gang rape of a public employee, it is conceivable that the State employer—rather than the rapists—was the infringer of her constitutional rights, by failing to protect her from them. Secondly, the infringement may have been less the rape itself than the State’s more general failure to protect female employees from sexual harassment in its various forms, about which I will have more to say in the following section.

Whether or not it was a key factor in Vishaka, the ubiquity of public employment contexts for the various sex equality claims decided by the Supreme Court under Articles 14–16, as well as Article 19 claims, underscores the general rule rejecting direct horizontal effect. From Air India female flight attendants to redundancy-threatened employees of public corporations, it is only ‘persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available’.²⁰

Turning from horizontal rights themselves to remedies for their breach, there have been too few instances of found violations by private actors to draw any firm conclusions. In People’s Union for Democratic Rights v Union of India (hereinafter People’s Union),²¹ having discussed at length the direct horizontality of Articles 23 and 24 in the context of responding to preliminary objections to the Court’s jurisdiction under Article 32—for the former because paying less than the statutory minimum wage may be a form of forced labour—the Court’s analysis on the merits of both whether these rights were violated and the remedies ordered was far more perfunctory. To the extent the statutory minimum wage had not been paid because the jamadar middlemen deducted a cut, the Court ordered the contractors to pay the workmen directly. Otherwise, it ordered the government entities to ensure that the various labour laws at issue were properly enforced and appointed three ombudsmen to inspect and oversee the employment.²² As for the Article 24 claim, the Court made no specific findings or orders. In MC Mehta v State of Tamil Nadu,²³ the Court found that the employment of children under the age of fourteen in the matchmaking industry in Sivakasi violated Article 24, as well as several statutory prohibitions on child labour, and ordered the offending employers to pay compensation of Rs 20,000 for every child, the statutory fine, to be deposited into a ‘Child Labour Rehabilitation-cum-Welfare Fund’. Because the small sums involved would likely be insufficient to dissuade poor parents from continuing to seek employment of their children, the Court provided a series of ten directions to the State in fulfilment of its combined constitutional duties under Article 24 and Articles 39, 41, 45, and 47 of the Directive Principles of Part IV. These included State-arranged alternative employment for parents and, otherwise, State payments to parents in lieu of income, as well as enforcing the compulsory education mandated by Article 45.

(p. 606) III.  Indirect Horizontal Effect: Protective Duties

As discussed in the introduction, the indirect horizontal effect of constitutional rights may result from imposing affirmative duties on the State to protect individuals from certain types of private conduct. Such protective duties are a subset of all positive constitutional duties, as the latter by no means generally require the State to regulate private individuals. So, for example, the positive dimension of the rights to health care and education—which the Supreme Court read into Article 21 even before enactment of the express obligation to provide free and compulsory schooling under Article 21A²⁴—creates entitlements against the State, but does not require it to regulate private conduct.

In fashioning a remedy in that case, the Court relied primarily upon specifying the content of this State obligation. In this way, the affirmative duty can be viewed as a remedial alternative to imposing sanctions on the infringing private actors. But the interesting question for present purposes is whether and when such a protective duty exists even in the absence of the direct horizontal effect of that right. That is, is such a duty, resulting in the indirect horizontal effect of constitutional rights, an attribute of some—or even all—other fundamental rights?

The Supreme Court has not provided a general answer to this question, or even a general criterion, but has imposed particular protective duties primarily in situations engaging the right to life under Article 21, as interpreted to include health and human dignity. In the Consumer Education and Research Centre case discussed above, the Court held that, as supplemented by several of the Directive Principles of State Policy, Article 21 includes the right to be free from a work environment that poses serious health risks and imposed a positive duty on the State ‘to take all such actions which will promote health, strength and vigour of the workman during the period of employment’.²⁶ This duty required it to take action against private employers in the asbestos industry. It is true, as we have seen, that the court also applied Article 21 directly against the employers in this respect—and indeed placed the same duty on them—but this duty on the State appears to be an independent one,²⁷ and may well be more extensive than the one imposed on private actors. In some other environmental cases decided around the same time, the court stopped just short of this step and issued a more conventional decision based on the violation of statutory laws by private companies (p. 607) and the failure of the State to properly enforce them, although the strong implication was that such omission amounted to a violation of its duty under Article 21.²⁸

Similarly, in the context of a writ petition under Article 226 seeking damages for a fire in a cinema that killed fifty-nine people, the Delhi High Court held that Article 21 imposes an affirmative duty on the State to protect the lives of individuals, obliging it to properly and effectively regulate the private property owners. This duty was breached where the various public authorities disregarded—through corruption and otherwise—the statutory requirements for public safety in cinemas, resulting in the devastating fire. By failing to protect life and provide safe premises, the State was liable to pay compensation to the victims for its violation of their Article 21 right.²⁹

In Vishaka, it will be recalled that it is not entirely clear from the judgment whether or not the Court held that the rights to equality, to pursue a profession, and to life/dignity applied against private actors such as the rapists in the case or non-State employers. The Court was far clearer about whether a violation of the victim’s rights had occurred than about who had violated them or what precisely the violation consisted in. A better reading of the decision, I suggest, is not that these rights have direct horizontal effect, but rather that they impose a constitutional duty on the State to protect individuals from sexual harassment in the workplace regardless of source, a duty that renders effective laws against sexual harassment mandatory and not a matter of legislative choice. This is what the constitutional violation by the State amounted to. In the absence of such legislation, the Court, as a branch of the State for Article 12 purposes, filled the gap in the law on a temporary basis employing the broad powers granted to it by Article 142. In this way, once again, at least some of the fundamental rights that are not directly applicable to private individuals do not simply impose on the State the negative duty to refrain from acting in the specified way. They also create a positive duty to protect the right against deprivations by other individuals, who are in turn legally regulated by the resulting required measures. Thus, following Vishaka, all private employers—as well as public—are subject to the new, constitutionally mandated sexual harassment regime. Were the State not to adequately enforce the law, that would amount to a separate violation of its duty.

IV.  Indirect Horizontal Effect: Private Law

The second way that fundamental rights may have indirect effect on non-State actors is via their impact on private law and ordinary private litigation. To the extent that such rights Page Id: 607ReferencesEnvironment (Protection) Act (India [in]) Act No 29 of 1986(p. 608) govern the private law that structures their legal relations with one another, they constrain what non-State actors can lawfully be authorised to do and which of their interests, preferences, and actions may be protected by law. Such indirect horizontal effect may be ‘strong’—where all private law and litigation is equally and fully subject to the fundamental rights—or ‘weak’—where at least some part of it is not fully governed by fundamental rights. Indirect horizontal effect thus expands the reach of fundamental rights into the private legal sphere and reduces the public-private division in their scope, although of course not by as much as direct horizontal effect.

As to the reach of Part III into private law, there has been little general discussion and few general principles established. Rather, the topic has been treated in more or less piecemeal, almost case-by-case, manner. Overall, while there are some areas and contexts in which fundamental rights fully apply to private law and litigation, there are others in which their impact is far less, creating significant pockets that retain a fairly sharp public–private division in the scope of Part III.

As a starting point, it would seem that all law—including all private, common, and customary law—is subject and subordinate to the fundamental rights. If it cannot be interpreted consistently with Part III, then it is void to the extent of the inconsistency. This appears to be the clear meaning of Article 13,³⁰ which defines ‘law’ broadly, and also the general practice of the Supreme Court, as exemplified by two cases from the early 1960s, in which first a statute and then a local custom mandating pre-emption in land sales on the ground of vicinage were equally held to be violations of the right to equality under Article 15 and the (subsequently repealed) right to acquire, hold, and dispose of property under Article 19(1)(f).³¹ These decisions based on two fundamental rights applying to the State alone obviously had economic consequences for all the relevant potential buyers and sellers.

Although reaching the Supreme Court via writ petition rather than appeal in the context of private litigation, the decision in Mohini Jain v State of Karnataka,³² the case that established both a right to education as part of Article 21 and the obligation of the State to provide it, can also be seen as a case in which Part III applies to the private law of contracts and impacts private universities. This is because in holding that it was wholly arbitrary under Article 14 and a violation of its duty under Article 21 for the State to permit such universities to charge a capitation fee in consideration of admissions, the Constitution indirectly constrains their freedom of contract to charge what the market will bear.

An example of interpreting a private law statute consistently with Part III rather than invalidating it is Githa Hariharan v Reserve Bank of India (hereinafter Hariharan).³³ Here the Supreme Court held that Section 6 of the Hindu Minority and Guardianship Act 1956, which stated that ‘[t]he natural guardians of a Hindu minor … are—(a) in the case of a boy or an unmarried girl—the father, and after him, the mother … ’³⁴ was ‘capable’ of being interpreted to mean that the mother becomes the guardian not only following the death of the father—the most obvious meaning—but also in the father’s absence or as the result of Page Id: 608ReferencesHindu Minority and Guardianship Act (India [in]) Act No 32 of 1956(p. 609) his indifference or mutual understanding between the father and mother. The alternative, said the Court, was to strike down the (private law) statute as an obvious instance of State sex discrimination under Article 15(1). Once again, although this fundamental right does not have direct horizontal effect, its application to this provision of private law undoubtedly impacts and effectively regulates many parents and children.

On the other hand, the nature of the Supreme Court’s writ petition jurisdiction under Article 32 (and to a lesser extent that of the High Courts under Article 226³⁵) as fundamentally a public law remedy serves to reinforce the general public–private division and limit the impact of Part III on private law and private litigation. Because jurisdiction is granted solely for ‘the enforcement of the rights conferred’ by Part III, it would seem that writ petitions must be brought against entities capable of violating them; that is, a ‘State’ under Article 12 or private individuals in the case of the few directly horizontal provisions.³⁶ Although the common practice of naming both State and non-State actors as defendants means the distinction between public and private litigation is not watertight, it is still the State action or omission that is the central prerequisite and focus, and the only normal basis for finding a constitutional violation.³⁷ This limitation, however, still in principle leaves the ordinary appellate jurisdiction of the Supreme Court (and High Courts) available for fundamental rights claims arising in the context of private litigation.

In addition, it seems somewhat uncertain whether courts are ‘the State’ for purposes of Article 12, so that their official actions must be consistent with Part III. This is important because subjecting the actions of courts to constitutional rights appears to be a necessary, if not sufficient, condition of at least the strong version of indirect horizontal effect.³⁸ In both Germany and the United States, as discussed below, it is to a large extent through the constitutional rights obligations of the courts that this second technique of indirect horizontal effect operates. Seervai argues that the better position in India is that courts are the State for Article 12 purposes, although he acknowledges that the leading case on the subject does not squarely answer the question.³⁹ As mentioned above, this position also appears to underlie the Supreme Court’s gap-filling function in cases such as Vishaka.

This jurisdictional constraint is partly responsible for one notable area in which Part III has had limited impact on the rules of private law and the conduct of private litigation. In the field of tort law, the development in recent decades of parallel systems of public law tort actions in the Supreme Court and High Courts under their Articles 32 and 226 jurisdictions on the one hand, and ordinary private law tort actions commenced in the lower courts on the other,⁴⁰ (p. 610) has left the latter largely untouched by Part III. The public or constitutional tort action against the State for violation of fundamental rights was first expanded to permit damage awards against it, then to cover various types of State inaction, especially under Article 21, and finally to incorporate looser or more flexible substantive standards of liability.⁴¹ It is true that in one sense this action breaches the public–private division and undermines the autonomy of this area of private law, but it does so in a very specific way. It treats the government’s liability for acts and omissions—and also that of private actors joined as co-defendants—separately, under public law principles, rather than the general private law rules applying to individuals. In this way, it effectively moves the State’s liability into the sphere of administrative law, as in many civil law systems. So although the public law tort action reduces their range, it does not alter or affect the private law rules themselves, but leaves them largely autonomous and uninfluenced by Part III.

The reasons for this bifurcation undoubtedly lie in the combination of (i) the nature and limits of Articles 32 and 226 as public law remedies requiring State action or omission as an essential prerequisite; and (ii) the desire of claimants and proactive members of the higher judiciary alike to bypass the weaknesses and inefficiencies of the ordinary civil litigation system in the lower courts, with their massive backlogs, personnel shortages, and lack of funding.⁴² But the result is to create a fairly sharp public–private divide in the scope of Part III, and hence a limited regulatory impact of fundamental rights on private individuals outside the public law tort regime.

The judgment in this case therefore appears to reject the influential and widely copied approach of the German Constitutional Court that constitutional rights form an ‘objective order of values’ radiating throughout the legal system and that general statutory provisions such as public policy clauses are the specific mechanism by which ordinary courts must permit these values to penetrate and influence private law.⁴⁷ In contrast to the German approach of a unified legal system resulting from the equal subjection of all private law to constitutional values, the Supreme Court judgment can be read to suggest that constitutional and private law remain importantly separate spheres, with fundamental rights not merely applying for the most part only to the State (as also, for example, in Germany), but also primarily limited to public law and the public sphere without significant penetration into the law governing interpersonal relations.

This contrast is well illustrated by comparing the approach of the Israeli Supreme Court, which has adopted the German model, as set out in Aharon Barak J’s concurring opinion in Burial Society of the Jerusalem Community v Kastenbaum.⁴⁸ For him, the provision of the general contracts statute declaring contracts contrary to public policy void is the ‘channel’ into which basic human rights are brought into private law, requiring courts to balance freedom of contract and individual autonomy against relevant fundamental rights, such as equality and dignity. On the facts, Barak J determined that the private law values underpinning the Burial Society’s contract term requiring Hebrew-language-only inscriptions on gravestones were outweighed by the right to human dignity of the deceased and her family that this term denied. Accordingly, the contract was contrary to public policy conceived in this way, and the Burial Society (deemed a private actor for the purpose of this analysis) indirectly affected by the fundamental rights to which it was not formally bound.

The judgment in Zoroastrian Cooperative also appears to reject the specific decision in the well-known US case of Shelley v Kraemer,⁴⁹ which held on broadly similar facts that judicial enforcement of a discriminatory restrictive covenant on the sale of land against Page Id: 611ReferencesBVerfG, Urteil vom 15.01.1958 - 1 BvR 400/51, 1 BvR 400/51, BVerfGE 7, 198, NJW 1958, 254, 15th January 1958, Germany; Constitutional Court [BVerfG]Burial Society of the Jerusalem Community v Kastenbaum, Civil Appeal 294/91, PD 46(2) 464, 30th April 1992, Israel; Supreme Court; Supreme Court as Court of AppealShelley v Kraemer, Judgment, 334 US 1 (1948), 68 S Ct 836 (1948), 92 L Ed 1161 (1948), 3rd May 1948, United States; Supreme Court [US](p. 612) a willing buyer and seller violates the equal protection clause, the equality provision of the Constitution. It did so, according to the US Supreme Court, because such enforcement amounts to active participation by the State in racial discrimination, although, in light of the perceived controversial implications of this reasoning, alternative, narrower theories have been canvassed. These include the existence of the court-made common law of racially restrictive covenants as a discriminatory exception to the usual rule of free alienability of land and the necessity of race-conscious application of this law by a court.

In seemingly holding that the Constitution and its fundamental rights provisions are not engaged by, or relevant to, all private law relationships and agreements—in effect that not all private law is subject to the Constitution—the Court carves out a certain autonomy or separateness for the former that is arguably hard to square with Article 13.

One question that arises is whether Zoroastrian Cooperative is inconsistent with Hariharan. For if the former suggests that private law need not be interpreted and applied in line with constitutional values in general and the value of equality and non-discrimination in particular, the latter, it will be recalled, is an instance of the opposite position. In Hariharan, the Court did bring the constitutional value of equality and non-discrimination on the grounds of sex to bear on the interpretation of the relevant provision of private law, finding a ‘capable’ meaning that was consistent with the right.

There are at least two possible ways of viewing the cases as compatible with each other. The first is that Hariharan concerns a ‘mandatory’ law in that the State is prescribing the compulsory terms of private legal relationships; here, who is a minor’s guardian. By contrast, the cooperative society case concerns a ‘permissive’ law, in that individuals set the terms of their private legal relationships and the State enforces them whatever they are.⁵⁰ In this latter type of case, the role of private autonomy rather than the government in norm creation is more pronounced and so, arguably, the impact of (non-horizontal) constitutional rights should be more attenuated. On this reading, juxtaposing the two cases, the Court appears to hold that although legislatures are free to ban private discrimination based on sex or religion, the Constitution does not require them to do so. At the same time, legislatures are not free to impose or require such discrimination. If so, the absence of such a positive constitutional obligation of course creates less impact of fundamental rights on, and greater autonomy for, individuals.

The second way is to question the reading of the Zoroastrian Cooperative decision as denying an interpretive role for constitutional values. Although there is no real suggestion of this in the Court’s judgment, an alternative reading of the case is that, far from holding the Constitution and its values not to be engaged at all, the Court did take the various relevant constitutional values into account, and that its narrow conception of public policy was the conclusion and not the premise of its analysis. To clarify, on this interpretation the Court found that the society’s by-law and actions were protected exercises of both the fundamental right to form associations and unions under Article 19(1)(c) and of a religious minority to preserve its culture under Article 29(1), as well as instantiations of the private law values of freedom of contract and autonomy. Moreover, this combination of public and private law values outweighed the particular non-discrimination claim of the respondent/Page Id: 612ReferencesBVerfG, Urteil vom 15.01.1958 - 1 BvR 400/51, 1 BvR 400/51, BVerfGE 7, 198, NJW 1958, 254, 15th January 1958, Germany; Constitutional Court [BVerfG]Shelley v Kraemer, Judgment, 334 US 1 (1948), 68 S Ct 836 (1948), 92 L Ed 1161 (1948), 3rd May 1948, United States; Supreme Court [US](p. 613) seller who, as a Parsi, had voluntarily become a member of the cooperative on the death of his father and agreed to its by-law at that time, perhaps having inherited land purchased at below market value due to the restriction. In other words, the Court engaged, at least in sub rosa fashion, in Barak-style balancing. For these fairly specific contextual reasons, the Court may plausibly be understood to have held that the public policy exception in the statute need not incorporate the constitutional value of equality, without necessarily implying that this would also be the case for every contractual restriction or private agreement.

All this said, a single case decided by a two-judge bench on relatively unsympathetic facts for the seller should probably not be taken to establish the general position of the Court on this broad issue. On the other hand, there is not much else to go on.

V.  Conclusion

Through the use of its writ petition jurisdiction, the Supreme Court has in several well-known areas taken a pioneering and innovative approach to fundamental rights under Part III. These include the development of public interest litigation, with its loosening of standing rules and (sometimes) substantive legal requirements; interpreting Part III—and especially the right to life in Article 21—expansively in light of the Directive Principles of State Policy in Part IV; and finding some of these implied rights to impose judicially enforceable affirmative duties on the State, including welfare obligations and responsibilities to protect. As we have seen, the Court has also interpreted Article 21 to apply to private actors in the context of occupational health hazards, and perhaps also the right to privacy. These last two developments in particular produce indirect and direct horizontal effect, respectively.

Somewhat ironically, however, the very success of the writ petition/public interest lawsuit has also limited the reach of fundamental rights into the private sphere. This is because as a public law remedy requiring a State defendant and primarily premised on its acts or omissions, Article 32 tends to reinforce rather than undermine the autonomy or separateness of private law, restricting the opportunities for interaction and influence. Accordingly, there are areas in which the Supreme Court has maintained more of a public–private division in the scope of fundamental rights than some other influential constitutional courts.

The major example of this is the relatively limited impact that Part III plays in ordinary private litigation, especially in tort and contract cases. There is no general principle that the fundamental rights or the values they represent must be brought to bear by courts in adjudicating such lawsuits, as in Germany and Israel—no general requirement that they take into account and balance constitutional values against the relevant private law ones. And although the same is mostly true in the United States, the Zoroastrian Cooperative case also seems to reject the specific decision in Shelley v Kraemer on the constitutionality of court enforcement of discriminatory restrictive covenants, which effectively covers some of the same ground as such a general requirement. For this reason, and notwithstanding the relatively little private liability that is pushed into the public law regime via co-defendancy, the indirect horizontal effect of Part III as it relates to private law is in practice weak rather than strong.