"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, January 18, 2011

Horizontal application of fundamental rights- some thoughts

The other day, Prof Singh was talking to the students on Art. 12. He picked up the issue of horizontal application of fundamental rights. Taken us through the importance of horizontal application, especially in India, where state wasn’t the violator as much as fellow members of the society particularly in a cast ridden society. He also took us through the slow progress of acceptance of the horizontal application, rooted in the human rights plane argued his case that Indian judiciary should be more sensitive to this matter as nothing prevents them from enforcing fundamental rights against the private persons. Experiences in Vishaka and other handful of cases have shown that judiciary has already begun to think in those lines.

The impediment in extending enforceability of fundamental rights, to him, is a result of reading Art. 12 as a preamble to Part III. The definition whereas is to economize the use of words wherever the word “the State” occurs.

The tricky question in horizontal application is how far a writ remedy be used to get into private transactions. Interestingly lot of the students seems to be entertaining a conventional thinking that fundamental rights are and should only be enforceable against the state. Their arguments seem to stem from Art. 32 which specify only certain writs and the remedies are available only against the state. Contrasting it with Art. 226, the argument was that in Art. 226, the word ‘any person’ has been used, which is lacking in Art. 32.

On the other hand I was reading Art. 32 in such a way to find whether there is any prohibition to give remedy against the actions of private persons, keeping aside the dogma that writs are only against state. Even other wise, Art. 142 give the SC the power to do complete justice and mould the remedy.

A close analysis of Art. 32 bring forth the following:

  1. Clause 1 – only ensures the right to move the SC for the enforcement of the right. It is not said, enforcement against the state. The very fact that there are certain fundamental rights which could be directly violated by private persons, it becomes clear that the intention was never to limit it only against the state.
  2. Clause 2- speaks that SC has power to issue directions, orders or writs for the enforcement of any of the rights conferred in this part. SC's power is not limited to writs and even writs are not limited to state, though so is the common law understanding.

Therefore the argument based on Art. 32 fail. One of the remainder issues was that how far it is feasible and advisable for the court to issue a mandamus against a parent discriminating between his children. This was raised in the milieu of SC’s observation in T Sareetha’s case that ‘allowing constitutional law to get into marital relationship would be like a bull in a china shop’. This is where I think one need to make a distinction between the private and public spheres of individual actions. Though it may be argued that in present day understanding private is public.

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