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Saptarshi Roy,
St. Xavier's University, Kolkata
&
Md Shah Minhajuddin,
St. Xavier's University, Kolkata
Abstract
A writ petition can be filed by any individual in the Supreme Court when Fundamental Rights have been violated by the State whereas a writ petition can be filed in the High Court when Fundamental Rights or any other rights have been violated by the State. However, a writ can be filed against the individual by taking the horizontal approach which is further divided into the direct horizontal application of rights and indirect horizontal application of rights. There have been many cases where the court gave judgment using different types of horizontality which will be discussed in the article.
Article
A writ is an application which provides the right to approach the Supreme Court or High Court to protect the Fundamental Rights which are contained in Part III of the Indian Constitution when such rights have been violated. The Constitution of India provides five kinds of writs which are Habeas Corpus, Mandamus, Quo Warranto, Certiorari, and Prohibition. Under Article 32, a writ petition can be filed in the Supreme Court when Fundamental Rights have been violated. Under Article 226, a writ petition can be filed in the High Court within competent jurisdiction. The power of the Supreme Court to issue a writ is much limited than the power of the High Court.
In India, normally the fundamental rights are executable against the state but in some cases, they may even be executable against the individual. At first, the vertical application of rights was enough. The vertical application of rights means the rights are exercised against government authorities, but the growing private power with the power of the private sector and the abandonment of the state made this facility inadequate. The powers vested in the state are very much and if the state decides to abuse them, it can largely do so. Therefore, the court has taken a horizontal approach, so that it can take action against an individual under the sui generis doctrine and start exercising rights against an individual. The concept of horizontal application was first introduced in Ireland. Subsequently, this approach was embraced by many countries such as India. Thus, there are two approaches which are horizontal applications of rights and vertical applications of rights. Horizontal rights apply against an individual while vertical rights are rights that can only be applied against government officials. The horizontal approach is divided into 2 which are direct horizontal effect and indirect horizontal effect. Direct horizontal application of rights can be implemented directly if there is any wrong committed that violates the fundamental rights of others under the Constitution of India. In the case of indirect horizontal application of rights, constitutional rights indirectly control them by imposing duties on them through law. Article 15 (2) prohibits discrimination which is included in Part III of the Constitution, takes the horizontal application of rights that obliges all public and private entities to refrain from discrimination on the basis of sex, caste, creed, or place of birth. This article prohibits the licensee from resorts, restaurants, etc to refuse anyone based on the factors mentioned above. Another provision where the horizontal application of rights is allowed is Article 17, which refers to the prohibition of untouchability. In many villages, Dalits are still widely victimized and disfavored. They are not allowed to wear house shoes when going to houses of high caste. They have to eat meals on different plates. The wells are set aside from them for use by people of higher castes. In such cases, the individual must be held accountable, otherwise, the practical application of fundamental rights will be pointless and will not serve the motive for which the constitution was made. Another provision where the horizontal application of rights is allowed is Article 21 which guarantees the right to life and personal liberty of any person, can be exercised against a private individual.
An example of direct horizontal applicability can be seen in the case of Consumer Education and Research Center v. Union of India[i], where the court held that health workers have the rights against private employers and added that private actors are bound by this decision under Article 32 of the Indian Constitution. The court elsewhere has utilized Article 21 of the Constitution where the court has said that the people can claim the right to life against the individual. In the case of Society for Un-Aided school of Rajasthan v. Union of India[ii], where the court used the horizontal applicability of fundamental rights and upheld the constitutional validity of the Right to Education Act, 2009 to accept 25% of disadvantaged children of 6 to 14 years of age in all public and private schools. A separate article related to this system in Part III of the constitution can be seen as Article 21. In MC Mehta v. State of Tamil Nadu, the court exercised the horizontal effect of fundamental rights. The court observed that the employment of children in the Shivkasi cracker factory violated Article 24 prohibiting child labor. The court ordered the employer to compensate the children. Indirect horizontal application has been used in many cases, especially in the famous case of Vishaka v. State of Rajasthan[iii], a worker in Anganwadi was raped by some culprits. The Supreme Court has used the indirect horizontal application of rights using The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) guidelines against sexual harassment. Also in the case of Vishaka and Medha Kotwal Lele[iv], the court held that the individual has rights against the state in terms of Article 14, Article 19, and Article 21 which obliges the state to control private actors who ensure that these rights are not violated. In the case of R. Rajagopal v. State of Tamil Nadu[v], the state officials brought defamation and privacy issues against the appellant. The Supreme Court used indirect horizontality on the issue of defamation and privacy. The court referred this case with Article 19(1) (a) of the Constitution. The court also referred to Article 21 to further strengthen the right to privacy of the individual against private individuals. Also in the case of Zoroastrian Cooperative v. District Registrar[vi], the Supreme Court said that the rights of the members of a Cooperative Society to socialize with anyone they are happy but this right disallowed the right of the person against non-discrimination on the basis of caste, religion, sex, race, and place of birth. As a result, the court upheld the impugned laws, as well as other rules which allowed and allowed the Society to exclude individuals on religious grounds.
Therefore in India, a writ can be filed against an individual using the horizontal approach. However, there are no proper regulations and rules that have been prescribed by the court regarding the horizontal application. The Court must conceptually distinguish between the different types of horizontality and must provide the scope of horizontality in the Constitution of India.
[i] Consumer Education and Research Center v. Union of India, AIR 1995 SC 922 (India) [ii] Society For Un-Aided Private School of Rajasthan v. Union of India, WRIT PETITION (C) NO. 95 OF 2010 (India) [iii] Vishaka & Ors v. State Of Rajasthan, AIR 1997 SC 3011 (India) [iv] Medha Kotwal Lele & Ors v. U.O.I. & Ors, WRIT PETITION (CRIMINAL) NOS. 173-177 OF 1999 (India) [v] R. Rajagopal v. State Of T.N, AIR 1995 SC 264 (India) [vi] Zoroastrian Cooperative v. District Registrar, Appeal (civil) 1551 of 2000 (India)