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OYO and the denial of fundamental rights for couples

A Legal Researcher

OYO, the hospitality chain recently rolled out its policy for Meerut in which the hotels were, reportedly, given the discretion to deny unmarried couples a stay at their establishments. This decision obviously has an impact on the fundamental right—right to life under Article 21—of those who cannot stay at the establishment without a proof of marriage. 

More importantly, this policy could be seen as violating Article 15 (2)(a) of the Indian Constitution. Article 15(2(a) prohibits discrimination on grounds of sex, among others, to shops, public restaurants, hotels and places of public entertainment

Oyo’s policy disproportionately affects opposite-gender pairs, as they are more likely to be perceived as couples and be required to provide proof of marriage. In contrast, same-gender pairs, whether romantic or not, are less likely to face such scrutiny. For example, a man and a woman may be denied accommodation without proof of marriage, while two men or two women in the same situation may not encounter this barrier.

This differential treatment imposes unequal access conditions based on the sex of the individuals involved, effectively discriminating against opposite-gender pairs. Despite the policy’s neutral appearance, its implementation creates a disparity that contravenes Article 15(2) (a) by restricting access to hotel accommodations in a manner that is inherently sex-based.

Now, what could be done against discrimination is a natural question to arise. One would be to file a case under a statute but this is a specific right under Constitution but might not be enshrined in any statute. Can the Court be approached?

To address such discrimination and to answer the question, it is essential to explore the horizontal application of fundamental rights, which extends these rights to interactions between private individuals and entities, not just between individuals and the state.

Traditionally, fundamental rights have been viewed as protections against state action. However, with private entities exerting significant influence over essential services, there has been a discourse to consider the horizontal application of fundamental rights in a much more expansive scale than before. This article will examine the concept of horizontal application of fundamental rights and where we stand as of today, as far as jurisprudence is concerned.

The traditional vertical approach to fundamental rights

Fundamental rights in India have historically been seen as constraints on state power. This is known as the vertical application of fundamental rights, where rights are enforced only against the State (Malik, 2007). The reasoning behind this approach is that fundamental rights are guaranteed to citizens as protection from the State, with private actions being addressed through ordinary laws (Bhatia, 2021).

Under this traditional model, a private hospital denying treatment might not be directly liable for violating fundamental rights. Remedies would typically be sought through consumer protection laws or tort claims, rather than constitutional challenges. However, globalization and neoliberalism have transferred welfare responsibilities to the private sector without corresponding constitutional obligations (Bhatia, 2021). This has created power imbalances that the traditional vertical model fails to address.

The need for a horizontal application of fundamental rights

The horizontal application of fundamental rights extends constitutional protections to private actors, ensuring they also respect basic rights. In many cases, private entities hold economic and social power comparable to the State, necessitating constitutional oversight. This concept has been recognized in global legal frameworks, as seen in the constitutionalisation of private law, which integrates fundamental rights into private contracts, torts, and property law (Smits, 2010).

The horizontal effect can manifest in different forms:

Critics argue that horizontal application may infringe on private autonomy (Friedmann & Barak, 2001). However, proponents emphasize its necessity in addressing social inequalities and mitigating power imbalances (Frantziou, 2019). Before the Horizontal Rights approach is discussed in Indian context, it is necessary to see how different legal system across the world have approached this matter so that at the end, we can not only compare our jurisprudence with the standards set by our own necessities but also with the standards set internationally. 

Horizontal approach and jurisdictions across the world

Different countries have adopted varying approaches to the horizontal application of constitutional rights, which refers to the application of these rights to disputes between private parties, rather than solely between individuals and the state (Bhatia, 2021) This is because new power centres and mechanisms of oppression have emerged, necessitating departures from the default vertical approach where rights only apply between the state and individuals.

Germany has a strong tradition of applying constitutional rights in private law (Frantziou, 2019). The German approach is characterized by the concept of “indirect horizontality” (mittelbare Drittwirkung) (Frantziou, 2019; Walkila, 2016). In this model, constitutional rights do not directly bind private parties (Frantziou, 2019; Walkila, 2016). However, these rights influence the interpretation and development of private law rules (Frantziou, 2019; Walkila, 2016). The German Federal Constitutional Court has played a significant role in developing this concept (Frantziou, 2019; Walkila, 2016). In the landmark Lüth case, the court established that while fundamental rights do not override conflicting rules of private law, they must be considered when formulating private law (Henne & Riedlinger, 2005). This means that general clauses of the (private) civil codes are interpreted in light of the fundamental rights (Henne & Riedlinger, 2005). The German approach, therefore, does not impose direct obligations on private parties but ensures that the private law is consistent with constitutional values (Henne & Riedlinger, 2005, Katharina Stein, 2022)

The United States employs the “state action doctrine,” which limits the application of constitutional rights to actions by the government or those acting under its authority (Balkin, 2014). This doctrine means that, generally, constitutional rights do not apply to private actors (Balkin, 2014). In Shelley v. Kraemer (1948), the U.S. Supreme Court ruled that courts cannot enforce agreements that stop people from buying homes because of their race. These racial covenants, were private contracts where homeowners promised not to sell to certain racial groups. While individuals could still make these agreements, the Court decided that if a judge enforced them, it would count as government action and violate the Constitution (Henkin 1962). This reasoning was subjected to criticism, rightly so, by the scholars of that time, saying that such reasoning is antithetical to personal liberties (Nerken, 1977). It wasn’t until the Fair Housing Act of 1968 that the inclusion of racially restrictive covenants in property agreements was explicitly prohibited by law. 

Typically, the U.S. follows a strict approach: a right either applies in a given situation or it doesn’t, without much consideration of the specific circumstances (Balkin, 2014). This is different from other countries that use “proportionality analysis,” which means they look at the context and details of each case to decide how rights should be applied (Balkin, 2014)

South Africa’s constitutional approach has evolved from indirect to more direct horizontal application of rights (Frantziou, 2019; Van der Walt, 2012). Under its Interim Constitution, there was a subtle shift from indirect horizontal effect to direct horizontal effect under the Final Constitution (Frantziou, 2019; Van der Walt, 2012). The South African Constitution grants some provisions of the Bill of Rights direct horizontal effect, making all ordinary legislation subject to compliance with the Bill of Rights (Frantziou, 2019; Van der Walt, 2012). This means that national courts are obligated to protect the realization of fundamental rights and provide effective remedies (Frantziou, 2019; Van der Walt, 2012). South African jurisprudence reveals that the horizontal effect operates through general provisions in the Bill of Rights, which apply to all law and bind private parties (Frantziou, 2019; Van der Walt, 2012).

In Canada, the approach to horizontal rights is often described as the “governmental functions” approach which follows the logic of state action but is narrower in its operation (Weinrib and Weinrib, 2001). The Canadian Charter of Rights and Freedoms does not directly bind private persons or apply to the common law governing their relations (Weinrib, 2001). The Supreme Court of Canada case R.W.D.S.U. v. Dolphin Delivery Ltd. held that the rights and freedoms in the Charter do not apply to private persons (Saunders, 2005; Weinrib, 2001). However, the common law can be adapted to the Constitution, with courts developing the common law in a way that is consistent with constitutional values (Saunders, 2005; Weinrib, 2001). This is called a parallel development of the common law, where courts exercise their inherent jurisdiction to interpret the common law to align with constitutional rights (Saunders, 2005; Weinrib, 2001). Some scholars note that the Canadian approach ignores the extensive German debate about direct and indirect application (Weinrib, 2001).

The United Kingdom does not have a single written constitution but has a quasi-constitutional statutory bill of rights – the Human Rights Act 1998 which raises similar issues to other jurisdictions (Hunt, 1998). The debate in the UK after the entry into force of the Human Rights Act, has focused on which form of horizontality is appropriate to the UK’s political constitution (Hunt, 1998). There are various opinions ranging from supporting a conception of horizontality through interpretation and incremental development of the common law compatibly with Convention rights (Hunt, 1998). Some legal scholars argue for an absolute duty to develop all existing common law compatibly with Convention rights, or simply to apply human rights directly (Hunt, 1998). The interaction of EU and UK law in the field of fundamental rights has influenced this debate in recent years, so that it would be fair to say that both direct and indirect forms of horizontal effect are available in the UK in respect of certain rights (Hunt, 1998).

Ireland: The Irish legal system has accepted the doctrine of full direct horizontal effect of constitutional rights. This means that the Irish Supreme Court interprets some constitutional rights to be directly binding and producing effects on the legal relationships between private parties. Every citizen in Ireland is entitled to invoke constitutional rights directly against another citizen, and not only against the State. The Irish Constitution itself, however, does not specifically provide for horizontal application. This approach contrasts with many Continental European approaches to the effect of fundamental rights. The Irish model allows for a direct application of constitutional rights in private disputes, meaning that an individual can bring a claim directly against another individual for violating their constitutional rights. The Irish model is considered a “constitutional tort,” where a violation of constitutional rights by one private actor against another can give rise to a legal claim (O’Cinneide, 2007).

Spain recognizes the direct horizontal application of human rights. The Spanish Constitutional Court has aligned its approach to the degree of protection guaranteed in EU law (Walkila, 2014, p. 133). In the Netherlands, both direct and indirect horizontal effects are recognized (Walkila, 2014, p. 164). Direct horizontal effect means fundamental rights are directly enforceable in the same way as in vertical relations, while indirect effect serves as an aid for interpretation, ensuring private law provisions conform to the contents of fundamental rights (Walkila, 2014, p. 147). A similar distinction exists in the Czech Republic (Walkila, 2014, p. 164), where the horizontal effect of constitutional rights has been addressed relatively recently. The Czech Republic is noted as having followed a strategy of constitution-conform interpretation and is among the jurisdictions that recognize both direct and indirect horizontal effects.

Slovakia, like the Czech Republic, has undergone recent constitutional reforms, leading to a more recent focus on the horizontal effect of fundamental rights. Before 2002, Slovakia’s Constitutional Tribunal could not review decisions of ordinary courts. However, the country has been recognized as having adopted a strategy similar to that of Poland, where high courts of the ordinary judiciary implement the horizontal effect of basic rights. In Poland, indirect horizontal effect is realized through general clauses and the interpretation of statutes in conformity with constitutional values, along with the review of constitutionality. Direct horizontal application of clear and precise constitutional provisions is also possible in exceptional cases (Walkila, 2014, p. 147). 

Kenya’s Constitution of 2010 contains provisions that allow for the direct horizontal application of constitutional rights. This means that these rights can be applied in relationships between private parties, not just between individuals and the state. Specifically, Article 20 of the Kenyan Constitution does not formally limit the reach of horizontality. The Kenyan courts have also shown a willingness to apply the institutional approach to horizontal rights, particularly in cases of discrimination. However, while the courts have made some strides in this direction, they have been hesitant to articulate a fully consistent normative account of horizontality. This has resulted in an application of horizontality that is inconsistent and partial.

Jamaica’s 2011 Charter of Fundamental Rights and Freedoms also introduced the concept of bounded interpretive horizontality. Section 13(5) of the Charter allows for the application of constitutional rights to private relationships. However, this application is not unlimited. The Jamaican Constitution does not subject every private relationship to the Constitution, nor every fundamental right. Like South Africa, the Jamaican Constitution was intended to tackle disparities in power between private parties. The Jamaican courts have grappled with the challenge of balancing competing rights and determining the limits of horizontal application. The courts have tended towards a “balancing” doctrine and focusing on whether “adequate alternative remedies” exist in other laws to limit the application of horizontality. The Jamaican courts have engaged in depth with judgments from other jurisdictions, using comparative examples in their judgments.

Both Kenya and Jamaica’s horizontal rights doctrines are works in progress. While both jurisdictions have embraced the idea of applying constitutional rights to private relationships, they continue to grapple with questions around the limits of this application, and the need for a clear normative framework to guide decision-making in horizontal rights cases. An institutional approach, taking into account the institutionally-mediated power differences, may be a useful way to address the gaps in the current doctrine (Bhatia, 2024).

EU Law 

The EU legal order incorporates all three dimensions of horizontality (direct, indirect, and state-mediated effect) (Frantziou, 2019; Walkila, 2016). However, in practice, the EU focuses almost exclusively on direct horizontal effect or its absence (Frantziou, 2019; Walkila, 2016). The EU law is influenced by different legal traditions but has its own method of systematisation of law (Frantziou, 2019; Walkila, 2016). The Court of Justice of the EU tends to pronounce itself on a case-by-case basis, which has led to complex concepts (Frantziou, 2019; Walkila, 2016). 

Key Considerations:

The horizontal application of constitutional rights is a complex and evolving area of law (Frantziou, 2019). Different jurisdictions have adopted various approaches, influenced by their unique constitutional and legal traditions (Frantziou, 2019). While some, like Germany, favor indirect application, others, like South Africa, have embraced a more direct approach (Frantziou, 2019; Van der Walt, 2012). The United States, with its state action doctrine, stands out as more restrictive on the direct application of constitutional rights to the private sphere (Balkin, 2014). The EU legal order incorporates various dimensions of horizontality, focusing more on direct effect (Frantziou, 2019). 

With this awareness, let us discuss Horizontal Approach in Indian context.

The Indian Constitutional Framework for Horizontal Rights

Unlike many constitutions that focus solely on state action, the Indian Constitution explicitly recognizes horizontal rights in specific provisions:

These provisions directly regulate interactions between private parties, reflecting India’s commitment to addressing deep-rooted social inequalities and how private entities have taken an active part in perpetrating such inequalities. 

Case law and institutional interpretation

Indian courts have interpreted fundamental rights in a manner that extends their applicability beyond state actors, particularly through an institutional approach (Bhatia, 2021). 

The horizontal application of fundamental rights in India, where these rights are enforceable against private individuals and entities, has been a significant aspect of the country’s constitutional jurisprudence. This approach ensures that fundamental rights are not only protected against state actions but also in interactions between private parties.

In 1982, the Supreme Court addressed this concept in the case of People’s Union for Democratic Rights (PUDR) v. Union of India (1982 AIR 1473). The Court examined the exploitation of labourers involved in the construction projects for the 1982 Asian Games in New Delhi. The petitioners argued that the workers were subjected to inhumane conditions, denied minimum wages, and coerced into labour, violating their fundamental rights. Invoking Article 23, which prohibits trafficking in human beings and forced labour, the Court recognized that forcing individuals to work for less than the minimum wage constitutes a form of forced labour. This judgment expanded the interpretation of forced labour to include economic coercion and underscored the state’s obligation to protect vulnerable workers from exploitation.

Later, in the landmark judgment of Indian Young Lawyers’ Association v. State of Kerala ((2017) 10 SCC 689), commonly known as the Sabarimala case, the Supreme Court further explored the horizontal application of fundamental rights. The case centred on the exclusion of women aged 10 to 50 from entering the Sabarimala Temple, a practice based on notions of purity related to menstruation. Justice D.Y. Chandrachud, in his concurring opinion, invoked Article 17, which abolishes “untouchability” in all its forms. He argued that the exclusion of women based on physiological factors perpetuated a form of social exclusion akin to untouchability, thereby violating constitutional values by a religious trust rather than by a state. He emphasized that such practices stigmatize individuals and have no place in a constitutional order. 

More recently, in the case of Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1), the Supreme Court delved deeper into the horizontal application of fundamental rights. The Court examined whether fundamental rights under Articles 19 and 21 could be enforced against private individuals and entities. In a 4:1 majority decision, the Court held that these rights are indeed enforceable against non-state actors. This, being the latest and a specific judgement on the horizontal approach—with a question being formulated and answered in the judgement—is worthy of consideration for a better understanding. 

On Kaushal Kishor judgment on horizontality:

In 2016, a writ petition was filed in the Supreme Court of India seeking action against a U.P. government minister who called a gang rape case a “political controversy”. The petitioner in the case, Kaushal Kishor v. Union of India, also sought a fair investigation and transfer of the trial outside of Uttar Pradesh. The minister then apologized to the Supreme Court, and the matter should have rested, but in October 2017, the case was referred to a five-judge Constitution Bench.

During this time, the Court also took up a Special Leave Petition (Diary) that raised similar questions about statements made by a Kerala government minister and tagged it with the original writ petition. The Constitution Bench then framed five questions for resolution:

The majority opinion, delivered by Justice V. Ramasubramanian, held that a fundamental right under Article 19 or 21 can be enforced against persons other than the State or its instrumentalities. 

Evolution of “State”: The court traced how the concept of “State” has broadened over time. Initially, fundamental rights were enforced only against the State. However, this understanding expanded to include “Authorities,” “instrumentalities of State,” “agency of the Government,” entities with “governmental character,” those with “monopoly status conferred by State,” those under “deep and pervasive control,” and ultimately to include entities based on the “nature of the duties/functions performed”. This evolution was crucial in recognizing that fundamental rights could be infringed upon by private actors.

Technological Advancements: The court acknowledged the increasing role of private players in infringing upon fundamental rights due to technological advancements. The court pointed out that infringement of the right to privacy was now mostly by private players. If fundamental rights cannot be enforced against non-State actors, these rights would be severely undermined.

Interpretation of Article 21: The court emphasized the broad interpretation of the right to life under Article 21. This right now includes a variety of rights, making it possible to hold non-state actors accountable for violations. The court noted that the focus has shifted from “who the respondent was” to “the nature of the duties/functions performed” by the respondent in determining amenability to jurisdiction under Article 226.

Paramountcy of Personal Liberty: The court highlighted that the right to personal liberty is paramount, and the state has a duty to protect it even from non-state actors. This emphasized the state’s positive obligation to protect citizen’s rights.

Horizontal Effect: The majority acknowledged that some fundamental rights are specifically granted against non-State actors, such as Article 15(2) (a) (access to public places), Article 17 (untouchability), Article 23 (forced labour), and Article 24 (child labour). Additionally, aspects of Article 21, like the right to a clean environment, have been enforced against private parties.

Dissenting Opinion on Horizontality:

Justice Nagarathna’s dissenting opinion offers a different perspective on the issue of horizontality. While agreeing that Article 19(2) is exhaustive regarding restrictions on free speech, she argued that fundamental rights under Articles 19 and 21 cannot generally be enforced against non-state actors. She distinguished between common law rights and fundamental rights, stating that common law remedies are available in cases of infringement by private individuals. She also pointed out that a writ petition to enforce fundamental rights would not be entertained against non-state entities, especially because such matters involve disputed questions of fact.

Exception for Habeas Corpus: Nagarathna J. noted an exception in cases where a writ of habeas corpus is sought against a private person based on Article 21, in which case a constitutional court could hear the matter.

Rejection of Broad Horizontality: The dissenting opinion explicitly rejected the notion of allowing fundamental rights to operate broadly between private citizens. It suggested that doing so would render the tests and doctrines developed by the Court to define “State” under Article 12 redundant.

Despite a seemingly progressive stance, the judgement was criticised for taking upon a question of law on itself without having the explicit need to. 

Conceptual Confusion and Conflation: A major point of criticism is that the judgment demonstrated a fundamental misunderstanding of horizontality. The court, according to some, conflated different concepts related to the application of constitutional principles to non-state actors. These concepts include state action, where the state is directly involved; indirect horizontality, where the law affects private parties through interpretation; and situations where the judiciary itself is considered part of the state. This lack of conceptual clarity was seen as a significant flaw, muddling the understanding of how constitutional rights should apply in different contexts. The judgment was criticized for conflating distinct legal approaches, misrepresenting countries’ positions on horizontality, and providing an outdated, inaccurate comparative analysis.

Lack of Engagement with Doctrinal Nuances: The judgment was criticized for not engaging with the nuances of how horizontality is understood and applied in different jurisdictions. Critics argue that the judgment ignores the structure of the Indian Constitution, which explicitly provides for horizontal application of certain fundamental rights (Articles 15(2), 17, 23, and 24), while being silent on others. This is interpreted to mean that the constitution intends for horizontal application only in specific carve-outs. The judgment was criticized for failing to explain why it departs from the obvious result of this textual structure, thereby opening the Pandora’s box of litigation wherein people approach constitutional courts for recourses that exist in common law. The critique went to the extent of arguing that the judgement is ‘unconstitutional informal constitutional changes’—meaning that the judgement has an effect of changing the constitutional goals so radically that it falls under the category of ‘constitutional dismemberments’

Is it so radical?

It is radical to the extent of saying in unequivocal terms that Article 19 and 21, the 2/3 of the commonly known Golden Triangle is enforceable against private parties. However, to say that the judgement falls under the category of ‘constitutional dismemberments’ would be an exaggeration. 

While a result of uncalled judicial enthusiasm to philosophize constitutional issues, the judgement merely posits that if there is a fundamental right (Articles 19 and 21) violation by a private party, the right can be enforced. 

The Kaushal Kishor judgment should not be interpreted as an open invitation for individuals to approach the Supreme Court for grievances that can be addressed through common law remedies. Instead, it must be understood within the context of Indian realities, where marginalized individuals often lack the means to navigate complex bureaucratic and legal systems to seek redress for violations of their fundamental rights. The Supreme Court has historically served as a beacon of hope for such individuals. In this context, empowering the Court to enforce fundamental rights, particularly the expansive rights under Articles 19 and 21, against private parties is both practical and necessary.

Conclusion

The judgement appreciably, defines, the concepts of vertical and horizontal effects of constitutional rights. It clarifies that constitutional rights have a “vertical effect” when they regulate the conduct of the government and governmental actors in their dealings with private individuals, while they have a “horizontal effect” when they impact the relationships between private individuals. [Para 74]

Moreover, the expansion of this doctrine will not rest on this single case but will develop through multiple rulings, allowing for corrections over time. Viewing it as a radical upheaval is unwarranted.  India’s stance has evolved, with Kaushal Kishor v. State of Uttar Pradesh recognizing the enforceability of Articles 19 and 21 against private entities. While this brings India closer to South Africa and Ireland, one could rightly argue that it lacks doctrinal clarity and risks overextension. Unlike Germany or Canada, India has not developed a robust framework for indirect horizontality, leaving room for judicial refinement.

(The author is part of the organisations legal research team)

 

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