Beyond The State: The Horizontal Application of Fundamental Rights in India After Kaushal Kishore

Abstract

The Indian Constitution’s Part III has traditionally operated on a vertical model, treating fundamental rights as limits on State action defined chiefly through Article 12. The Supreme Court disrupted this framework in Kaushal Kishor v State of Uttar Pradesh (2023), where a four-judge majority on a Constitution Bench held that fundamental rights under Articles 19 and 21 can be enforced against private individuals through the writ jurisdiction in Articles 32 and 226. This article examines that judgment and argues that, while the majority’s aim of protecting citizens from powerful private actors is legitimate, its reasoning creates a significant inconsistency within Part III. By making Articles 19 and 21 directly enforceable against private parties, the Court effectively bypasses the formal amendment process under Article 368 and renders the Article 12 threshold irrelevant for these core rights. The judgment also fails to provide any mechanism for balancing competing private rights, risking a flood of ordinary disputes into already congested constitutional courts. To address these problems, this article proposes a two-track framework: ordinary private disputes should proceed through indirect horizontality, enforcing the State’s positive duty to protect, while direct enforcement in constitutional courts should be reserved for large private entities performing essential public functions or exercising monopoly power.

Introduction

The architecture of Part III of the Constitution of India has historically rested on a vertical paradigm, conceptualising fundamental rights as shields against arbitrary State action bounded by Article 12. In Kaushal Kishor v State of Uttar Pradesh (2023),[1] however, the Supreme Court departed from this settled understanding. Four of the five judges on the bench held that certain fundamental rights — specifically Articles 19 and 21 — can be enforced against private individuals, reasoning through the scope of the writ jurisdiction conferred by Articles 32 and 226.
While the impulse to curb pervasive non-state power is socially responsive, this reasoning introduces severe structural inconsistencies. By expanding direct enforcement to private entities, the ruling bypasses the formal amendment process under Article 368 and renders Article 12 redundant for these core rights. This article argues that Kaushal Kishor conflates the State’s positive duty to protect rights with direct private liability.
The remainder of this article proceeds as follows: Section II examines the traditional vertical model. Section III analyses Kaushal Kishor and the shift toward horizontality. Section IV explores the doctrinal tensions and practical implications of that shift. Section V proposes a two-track framework for reform. Section VI concludes.

II. The Traditional Vertical Model: Article 12 and Its Limits

II.A — The Article 12 Definition and the Instrumentality Test
To preserve individual liberty while maintaining public order, the framers of the Indian Constitution anchored Part III to a clear institutional target: the “State.” Article 12 defines the State expansively to include the Government and Parliament of India, the Government and Legislature of each State, and all “local or other authorities” within Indian territory or under the control of the Government of India.[2] Because the phrase “other authorities” lacked an explicit textual boundary, it became the focal point of extensive judicial expansion during the twentieth century, as the Indian state immersed itself in welfare and industrial activity.
The judiciary initially adopted a restrictive approach, but a major shift occurred in Rajasthan State Electricity Board v Mohan Lal,[3] where the Supreme Court held that “other authorities” encompasses all bodies created by statute or the Constitution and vested with statutory powers. As state-backed corporations and autonomous bodies proliferated, this formalistic approach proved insufficient, prompting the Court to develop a functional, multi-factor test to look behind the corporate veil.
This culminated in the landmark decision of Ajay Hasia v Khalid Mujib,[4] where the Court articulated a six-factor cumulative test to determine whether an entity is an “agency or instrumentality” of the State. These factors examine:

• Whether the entire share capital is held by the government;
• The existence of deep and pervasive state financial control;
• Whether the corporation enjoys a monopoly status conferred or protected by the State;
• The existence of deep and pervasive administrative control;
• Whether the corporation’s functions are of public importance and closely related to governmental functions; and
• Whether a government department has been transferred to the corporation.

The standard was refined by a seven-judge bench in Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002),[5] which clarified that the Ajay Hasia factors are illustrative rather than a rigid checklist. An entity qualifies as a “State” instrumentality under Article 12 only where the government exercises pervasive control over its structure, finances, and functioning — control remains the touchstone of the inquiry.
This framework is increasingly strained by developments in 2026. Large technology platforms, private hospitals, and elite universities now wield significant influence over public discourse, access to healthcare, and access to education. Because these entities are neither owned nor controlled by government, they fall outside the Pradeep Kumar Biswas standard and escape the constitutional accountability that their social influence might otherwise warrant.

II.B — The Doctrinal Gap: Private Power Without Constitutional Accountability
This produces a structural gap: entities that fall outside Article 12’s definition of the State nonetheless exercise significant influence over individual lives. When large technology platforms suppress speech, or private employers make decisions affecting bodily autonomy, existing constitutional doctrine offers no direct route to accountability. Ordinary private law remedies — in tort or contract — are an imperfect substitute. They lack constitutional weight, and private agreements are frequently the product of unequal bargaining power. Litigants pursuing private-law claims also do not benefit from the procedural safeguards attached to public law adjudication, nor can they invoke prerogative remedies such as mandamus or certiorari.
It was against this backdrop that the Court felt compelled to intervene in Kaushal Kishor, seeking to hold private actors to a higher standard of accountability. However, as the following sections argue, the manner of that intervention was imprecise and has generated significant doctrinal difficulty.

III. The Paradigm Shift: Kaushal Kishor and the Horizontal Turn

III.A — Facts and Context
The facts underlying Kaushal Kishor v State of Uttar Pradesh illustrate how blurred the line can become between a public official’s official acts and personal statements. The case arose from a brutal crime committed on a highway in Uttar Pradesh, in which a mother and her young daughter were raped. Following the incident, a senior Cabinet Minister in the State Government publicly characterised the crime as a “political conspiracy” orchestrated to defame the ruling party.
The victims filed a writ petition seeking, among other remedies, transfer of the investigation and registration of a criminal case against the Minister for violating their right to dignity under Article 21. Recognising that the dispute involved a state official speaking in an ambiguous, potentially non-official capacity, the Supreme Court referred the matter to a five-judge Constitution Bench. The central question referred to the Bench was whether a fundamental right under Article 19 (freedom of speech) or Article 21 (right to life and personal liberty) could be enforced directly, via a writ petition, against a private individual.

III.B — The Majority’s Reasoning
Writing for the four-judge majority, Justice V. Ramasubramanian answered this question in the affirmative. The majority first observed that several of Part III’s provisions — including Articles 15(2), 17, 23, and 24[6] — already expressly bind private conduct, demonstrating that the Constitution’s structure is not exclusively vertical.
Extending this logic to provisions that do not explicitly mention private actors, the majority concluded that Articles 19 and 21[7] are also capable of horizontal enforcement. The Court reasoned that the State bears an affirmative, positive duty to protect citizens’ constitutional rights from interference by non-state actors, and from this premise concluded that where the State fails to prevent a private violation — or where a private party directly infringes another’s liberty — a writ under Article 32 or 226[8] can lie directly against that private actor.
A critical evaluation reveals that this reasoning conflates two distinct constitutional concepts:

• The State’s positive duty to protect rights, which requires the State to legislate, deploy regulatory powers, and provide judicial forums to prevent private entities from violating citizens’ liberties; and
• Direct horizontal enforceability, which allows a citizen to bypass the State entirely and sue a private individual in a constitutional court for a fundamental rights violation.

The former concept is well settled in comparative constitutional law. The German Federal Constitutional Court’s doctrine of mittelbare Drittwirkung (indirect horizontal effect), established in the Lüth case,[9] holds that constitutional values must radiate throughout the legal system, informing how civil courts interpret ordinary private law — without the constitutional court issuing writs directly against private citizens. Instead, the constitutional court compels the state’s judiciary and legislature to give effect to those values.
By moving directly to full horizontality without first establishing this intermediate, indirect step, the Kaushal Kishor majority detached writ jurisdiction from its historical role as a check on sovereign power, creating a precedent that permits direct constitutional claims against private individuals.

III.C — Justice Nagarathna’s Dissent
In her lone dissent, Justice B.V. Nagarathna offered a more textually faithful and structurally disciplined reading of Part III. She recognised that while the State must enforce statutory obligations to protect citizens from private harm, fundamental rights cannot be directly enforced against private individuals through public law writs.
Justice Nagarathna’s analysis focused closely on constitutional text. Article 21, for instance, provides that no person shall be deprived of life or personal liberty except according to “procedure established by law.” Because only the sovereign State possesses the legislative competence to establish “law,” the provision inherently presupposes a state actor as the potential depriver of liberty.
She accordingly warned that empowering private citizens to invoke writ jurisdiction against one another amounts to amending the Constitution through judicial decision, rather than through the procedure prescribed under Article 368.[10] Her dissent rightly observes that Part III’s foundation rests on the relationship between State and citizen; discarding that premise without a clear textual basis leaves the boundary of public law dangerously unclear.

III.D — The Article 12 Problem: An Original Analytical Contribution
The central doctrinal difficulty arising from Kaushal Kishor is the structural redundancy it inflicts on Article 12. If Articles 19 and 21 can be enforced against private individuals via Articles 32 and 226, the threshold question of whether an entity qualifies as a “State” becomes practically irrelevant for those specific rights.
This creates a significant internal contradiction within Part III. Why should courts continue to apply the strict multi-factor test from Pradeep Kumar Biswas to determine whether a public corporation is a “State” instrumentality, if a plaintiff can simply bypass Article 12 altogether by alleging a direct violation of Article 19 or 21 by a private actor?
The majority left this tension entirely unresolved. By decoupling constitutional remedies from the definition of the State, the Court introduced a structural asymmetry: some rights — such as Article 14 equal-protection claims — still require an Article 12 state actor, while others — Articles 19 and 21 — can now be enforced against anyone. This unguided expansion fractures the internal cohesion of Part III, leaving the law without a clear boundary separating public law from private law.

IV. Doctrinal Tensions and Practical Implications

IV.A — The Balancing Problem: Competing Fundamental Rights
When fundamental rights are applied horizontally, they inevitably collide with the reciprocal constitutional liberties of other private actors. In a traditional vertical dispute, the analytical framework is clear: a citizen asserts a fundamental right, and the State must justify any restriction under the narrow exceptions in Articles 19(2) through 19(6), bearing the burden of proof under the proportionality standard established in Modern Dental College[11] and Justice K.S. Puttaswamy v Union of India.[12]
In a horizontal context, this framework breaks down. If a private platform terminates a user’s account for offensive speech, a direct horizontal claim under Article 19(1)(a) pits the user’s right to free speech directly against the platform owner’s Article 19(1)(g) right to conduct business autonomously. The Kaushal Kishor majority failed to supply any balancing framework for disputes of this kind.
The Court further reaffirmed that only a “law” enacted by the legislature can restrict speech under Article 19(1)(a), making the strict standard from Shreya Singhal v Union of India[13] mandatory authority. Because a private entity’s internal content policy or terms of service do not qualify as “law,” a private actor has no legal means of justifying a restriction on another person’s speech under the existing constitutional framework. This produces an unworkable outcome, in which private entities are bound by constitutional duties yet stripped of any lawful means to balance or justify restricting them.

IV.B — The Floodgates Problem: Writ Courts and Private Disputes
The practical implications for judicial administration are equally concerning. India’s constitutional courts already face severe backlogs, with millions of cases pending across the High Courts. By opening the door to direct horizontal writ petitions, Kaushal Kishor risks turning constitutional courts into forums for private grievance redressal.
Any everyday private dispute involving an element of speech, privacy, or personal dignity can now be framed as a constitutional violation and brought directly before a High Court under Article 226. This risks overwhelming the judiciary and compromising the quality of constitutional adjudication.
Rather than opening the floodgates to claims against all private actors, the Court should have established a clear threshold test. By confining horizontal application to private actors that exercise monopoly power or perform essential public functions, the Court could have addressed structural imbalances of power without overwhelming the legal system — an approach that would realign horizontal application with the public-function principles already underlying Article 12.

IV.C — Interaction with the DPDP Act 2023
This horizontal expansion also complicates existing statutory frameworks, including data protection law. The Digital Personal Data Protection Act 2023 establishes clear statutory obligations for “data fiduciaries” — the majority of which are private entities — requiring them to protect individuals’ personal data and respect digital privacy rights.[14]
By allowing individuals to enforce Article 21 privacy rights horizontally against private entities under Kaushal Kishor, the judiciary has created a parallel constitutional remedy that bypasses the statutory enforcement mechanisms set out in the DPDP Act.
This raises difficult questions of election of remedies and constitutional avoidance. To prevent structural confusion and ensure regulatory consistency, courts should develop a clear rule requiring litigants to exhaust specialised statutory remedies before invoking constitutional writ jurisdiction against private parties.

V. Towards a Coherent Framework

To resolve the structural inconsistencies introduced by Kaushal Kishor, Indian jurisprudence requires a systematic, two-track framework that balances individual rights with doctrinal discipline.

Track 1 — Indirect Horizontality (State’s Positive Duty)
This track applies to ordinary private disputes where the wrongdoer lacks systemic market or social power.
Mechanism: The aggrieved individual does not file a writ against the private actor; instead, they sue the State for failing its affirmative constitutional duty to protect its citizens.
Impact: This approach compels the State to deploy its legislative and regulatory machinery to remedy the private wrong. By avoiding direct private liability, it respects the constitutional text, preserves the structural integrity of Article 12, aligns with Justice Nagarathna’s dissent, and mirrors Germany’s mittelbare Drittwirkung framework.

Track 2 — Direct Horizontality (Limited to Public-Function Actors)
This track targets powerful non-state entities that operate as functional sovereigns, such as dominant digital gatekeepers, infrastructure conglomerates, or private monopolies.
Mechanism: Direct horizontal enforcement under Articles 32 and 226 is permitted, but strictly conditioned on a rigorous threshold test — applicable only where the private entity performs an essential public function or exercises structural control over a citizen’s basic capabilities.
Impact: This functional test extends Article 12’s core principles directly to the remedial stage, ensuring corporate and digital accountability while preventing ordinary citizens from being subjected to public law lawsuits.

VI. Conclusion

The Supreme Court’s decision in Kaushal Kishor represents a well-intentioned attempt to adapt constitutional protections to an era in which private entities wield immense structural power. However, by embracing direct horizontal application without establishing clear boundaries, the majority created significant tensions within the structure of Part III, leaving the role of Article 12 ambiguous and vulnerable to inconsistency. The judgment conflates the State’s duty to protect liberties with direct private liability, bypassing the formal amendment process outlined in Article 368.
To restore structural harmony to India’s constitutional framework, three steps should be taken. First, the Supreme Court should refer the scope of horizontal enforcement to a larger bench, with a mandate to establish a clear threshold test distinguishing direct from indirect horizontal application. Second, Parliament should consider a constitutional amendment to Article 12 explicitly expanding the definition of “State” to include entities exercising monopoly control or systemic public functions, providing a clear textual basis for modern horizontal enforcement. Third, the judiciary must design a specialised proportionality framework for private-actor disputes, enabling courts to balance competing rights fairly without relying on standards designed exclusively for state action.
Only by adopting such a disciplined framework can the Indian judiciary protect individual liberties from modern private power while preserving the integrity of its constitutional system.

References

[1] Kaushal Kishor v State of Uttar Pradesh (2023) 4 SCC 1.
[2] The Constitution of India 1950, art 12.
[3] Rajasthan State Electricity Board v Mohan Lal AIR 1967 SC 1857.
[4] Ajay Hasia v Khalid Mujib (1981) 1 SCC 722.
[5] Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 111.
[6] The Constitution of India 1950, art 15(2), 17, 23 & 24.
[7] The Constitution of India 1950, art 19 & 21.
[8] The Constitution of India 1950, art 32 & 226.
[9] Lüth (1958) 7 BVerfGE 198 (German Federal Constitutional Court).
[10] The Constitution of India 1950, art 368.
[11] Modern Dental College and Research Centre v State of Madhya Pradesh (2016) 7 SCC 353.
[12] Justice K.S. Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[13] Shreya Singhal v Union of India (2015) 5 SCC 1.
[14] Digital Personal Data Protection Act 2023 (India), ss 8–12.