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A country is governed by a system of laws which are generally defined as a set of legislations made by the parliament or state legislatures. Most of these legislations create rights and liabilities for citizens, institutions, and legal entities in their public sphere of life, which is broadly known as


A country is governed by a system of laws which are generally defined as a set of legislations made by the parliament or state legislatures. Most of these legislations create rights and liabilities for citizens, institutions, and legal entities in their public sphere of life, which is broadly known as public law. In the case of countries where specific rights are guaranteed in the constitution, the application of such laws can be possibly extended to the private sphere of the lives of a citizen or an entity. Such application is termed a horizontal application of the law. The application of rights can be divided into two categories ‘Horizontal’ and ‘Vertical’. The horizontal application of rights is taken to mean the application of rights in the private sphere of the law, while vertical application stands for the normal or standard form of application of rights with the intention they were originally created. The said principle was first introduced in the case of Hanrahan v Merck Sharp & Dohme (Ireland) Limited (Hanrahan).[1]


In India, the constitution guarantees certain Fundamental Rights which are scheduled in part III of the constitution. These are broadly divided into the right to equality, the right to freedom, protection in respect of conviction for offences, the right to life, rights of the accused, the right to freedom of religion, rights of minorities, right to constitutional remedy[2].

Fundamental rights such as the right against untouchability[3] originate from the deep-rooted discriminating character of social groups. This discriminatory nature is not just limited to the state but is indeed a real impediment to the development of a citizen’s life. This makes it of utmost that such a right is enforced not only in public life but also in private life.

The Supreme Court stated in People’s Union of Democratic Reforms v. Union of India that the protection enshrined in articles 15 and 17 is available against both the state and private individuals.[4] This is an important pronouncement as the index of the problem of untouchability is very wide.

Taking the example of the problem in the case of State of Karnataka v/s. Appa Balu Ingale[5], the defendants, were accused of treating the petitioners unfairly by discriminating against them and preventing them from using the newly constructed borewell, which was 15 feet away from the area where Harijans lived. The reason given for such treatment was that they were Harijans, and another borewell was available for their use. This treatment qualifies as a violation of Article 17, and the accused persons were convicted under the Protection of Civil Rights act 1955.[6]

Although the criminal acts of the persons lead to their conviction, the long process and insufficient punishment stand as good enough reasons to consider the application of fundamental rights against untouchability in the private sphere of law where a shorter, fairer, and just compensation or other remedy is provided to the parties concerned.

Concerning the enforcement of fundamental rights, there exists a problem with the classification of rights as to which ones can and which ones cannot be imposed using private law. For example, the right to education, which was given a sanction by the parliament in the right to education act, 2009, only casts a negative obligation on the private unaided parties for the application of article 21A and not a positive one to ensure the direct application of this right.[7] However, the apex court did uphold the validity of the act, which in effect, means that the state can compel the private schools to reserve the number of seats specified in the act, hence indirectly applying the fundamental right to education.


The Supreme Court has intentionally segregated the private-public paradigm in writ petitions and PILs, therefore debarring private individuals from enforcing certain rights. This has led to a depreciation in the effect of fundamental rights in the private sphere. Hence, there arises a need for the Indian Judicial system to properly define and explicitly state the areas of horizontal application of fundamental rights.

This condition was rectified for articles 19 and article 21 by the apex court, which in a recent judgment pronounced its decision on the application of the fundamental right of freedom of expression and its application on persons other than the ‘state’ or its instrumentalities in the positive.[8] The apex court held that both rights could be enforced even against entities that are not necessarily ‘state’ as per article 12 of the constitution[9].


Another problem that we witness with the enforcement of fundamental rights against private entities is the uncertainty that has arisen with regard to the new technology and its overreaching nature having serious implications for the privacy of an individual. The right to privacy was proclaimed as a fundamental right in the case of K.S Puttaswamy v. Union of India.[10] However, it is also known that in accordance with the Constitution of India, the right to privacy can only be enforced against a state entity. Deliberating upon its application against the private entities, it is desirable that such right be enforced against them, either directly or indirectly. This is so because social media companies are economic behemoths in the modern capitalist world and possess a considerable amount of personal data of the citizens, which can be and is possibly often misused for the personal gain of such companies.

However, we should also consider the problem which will arise with the application of fundamental rights in the private law sphere. The increase in the tally of cases that will arise as a result will lead to more burden on the already stressed judiciary of the nation.


In Indian constitutional law, fundamental rights form an important arena of the field and this arena, in my opinion, only needs to be widened in order to ensure the fair and just governance of the people who are the real sovereign in our country. The fundamental rights enshrined in the constitution had the sole purpose of safeguarding the liberties of citizens against probable infringements by those who hoard disproportionate social powers. In the current situation, non-state bodies may also violate public rights. As a result, fundamental rights must be enforceable against them as well.

Author(s) Name: Mohak Chaudhary (Gujarat National Law University, Gandhinagar)


[1] [1988] IESC 1

[2] The Constitution of India, 1950.

[3] Article 17, Constitution of India, 1950.

[4] People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.

[5] AIR 1993 SC 1126.

[6] The Protection of Civil Rights Act, 1955.

[7] Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1.

[8] Kaushal Kishor v. State of U.P., 2023 SCC Online SC 6.

[9] Article 12, Constitution of India, 1950.

[10] AIR 2017 SC 4161