INDIRECT AND DIRECT HORIZONTALITY: A TYPOLOGY

Horizontal application is defined simply as ‘binding private parties to constitu­tional requirements’.^[190] For the purposes of this chapter, as indicated above, I shall exclude from consideration the state action doctrine (and its variants).

Broadly, horizontal application is of two types: indirect and direct. In both cases, private parties are subjected to a specific constitutional rights framework. The manner in which that happens, however, differs. Indirect horizontality refers to a situation in which a rights framework is imposed on private parties through (non-constitutional) law. Direct horizontality, on the other hand, involves subjecting private conduct to constitutional rights and obligations.

A. Indirect Horizontality

The word ‘indirect’ with regard to horizontality indicates that ‘there is normally a layer of non-constitutional law mediating between the Constitution and the individual dispute’.^[191] In other words, private parties are not themselves bound to comply with constitutional obligations or authorised to enforce constitutional rights against each other. Rather, the law that already governs or structures the relationship between those (private) parties - and which defines their legal rights and obligations vis-a-vis each other - is what is tested for constitutional compli­ance. The word ‘law’ here refers both to statutory and common or judge-made law.

For example, in the famous New York Times v Sullivan decision, the US Supreme Court found that the common law of defamation - as applied by the Alabama courts to impose heavy damage upon the New York Times for libel - violated the constitutional right to freedom of expression.^[192] In this case, the Alabama courts, following the common law, had granted damages to the Police Commissioner of Montgomery County, who, in his capacity as a plaintiff, had sued the New York Times for libelling him.

Indirect horizontality can itself take different forms, arrayed along a spec­trum. Under a regime of ‘strong indirect horizontality’, the law that governs the private parties’ relationship can be modified - or even struck down - by the courts if it fails to meet constitutional standards.^[193] A regime of ‘weak indi­rect horizontality’, on the other hand, only authorises courts to ‘develop’ or ‘interpret’ the law (most often, common law) in accordance with constitutional provisions, but not necessarily to invalidate it.^[194] The difference is often one of degree, and in many cases - where, for example, abstract ‘general clauses’ are the route through which constitutional rights percolate into private law (as in Germany) - the distinction is almost non-existent in practical terms.

B. Direct Horizontality

Direct horizontality, by contrast, imposes constitutional rights and obliga­tions upon private parties and private conduct without any mediation by any other legal framework. For example, the Thirteenth Amendment to the US Constitution prohibits ‘slavery and involuntary servitude’.^[195] Article 15(2) of the Indian Constitution proscribes discrimination in, inter alia, access to ‘shops’ and ‘hotels’.^[196] Both these provisions restrain private parties from doing something (owning slaves or barring individuals from entering their shop, for example, on racial grounds).

These provisions indicate three possible approaches that Constitutional texts can take towards direct horizontality, arranged along a spectrum. We may call the first ‘bounded direct horizontality’: it picks out specific rights (for example, against involuntary servitude or against non-discrimination in access to certain spaces) and makes them applicable directly (the presumption with respect to all other rights remains that of default verticality). In chapter five, I shall study the Indian case further by arguing that these concrete rights ought to be understood - and interpreted - in the context of the institutional framework within which they are claimed and enforced. The second approach may be called ‘bounded interpretive direct horizontality’. It makes it clear that direct application is to be limited in scope, but articulates that limitation in generic terms (with phrases such as ‘nature of the right’ or ‘where applicable’), and leaves the determination of its extent and boundaries to judicial interpretation. This additional caveat maintains the presumption that, unlike default verticality, if a constitution intends to extend the bill of rights to non-state parties, an additional burden of justification must be discharged. The distinction between the two approaches, however, is that in ‘bounded direct horizontality’, the range of situations to which the horizontal rights framework applies is spelt out in the constitutional text.

Finally, the third approach may be called ‘unbounded direct horizontal- ity’. Arrayed at the opposite end of the spectrum to bounded horizontality, it straightforwardly applies the bill of rights to state and non-state parties with­out any distinction or presumption. As we shall see in this chapter, however, much like interpretive horizontality, unbounded horizontality - if it is to be workable - must also be subjected to judicial interpretation that delineates its scope and ambit.

C. Positive Obligations

For the sake of completeness, it is necessary to briefly address another approach to rights and obligations, which is not formally horizontal but which, in effect, will sometimes yield similar results. The theory of positive obligations holds that rights against the state are violated not only when the state actively inter­feres with their enjoyment, but also through its omission or inaction.^[199] Positive obligations require that, on occasion, the state must act ‘positively' in order to fulfil the content of a right. As Stephen Gardbaum points out, there is ‘signifi­cant analytical and practical overlap'^[200] between positive obligations and indirect horizontality. For example, a finding that a clause in the law of contract insuf­ficiently protects the rights of weaker parties may take either form. It may be argued that contract law, in its existing shape, does not comply with the consti­tutional right to equality (indirect horizontality); but it may also be argued that the state has failed in its positive obligation to protect the right to equality by not amending the law. Gardbaum points out, therefore, that in many situations, positive obligations can even serve as a ‘source of indirect horizontal effect'.^[201]

It is thus important to clarify that the arguments and the model presented in this book do not seek to displace positive obligations or to substitute them. The following discussion proceeds independently of the positive obligations approach, while acknowledging that at times - but not always - the two approaches operate in the same terrain, and may lead to similar results.

III.