Private Constitutionalism

Published On: 25th March, 2024

Authored By: Somitra Vardhan Dubey
DNLU (Dharmashashtra National Law University)

Chapter 1


A dictionary on Indian constitutional law may seem to contain an assessment of private law a little bit out of context. After all, the fundamental basis of public law, against which private law is often interpreted, is constitutional law.

The corpus of law that governs horizontal interactions between people acting in their capacities as private actors is commonly understood to be private law.

Public law, on the other hand, is largely concerned with the vertical relationships between various state actors or the state and the individual. The common law disciplines of tort law, contract law, property law, and other sophisticated regimes that build upon these common law subjects (such as intellectual property law or the law of commercial arbitration) are considered to be the mainstay of the former, while constitutional law, administrative law, and criminal law are considered to be the paradigmatic examples of the latter. 

Throughout the years, a significant amount of scholarly attention has been focused on the relationship between public and private law. In theory, public and private law are frequently viewed as analytically separate from one another, but in practice, this distinction is frequently blurred. When this happens, concepts, ideas, and methods from one enter or have an impact on the other. This most frequently happens in connection with the idea of “horizontal effects,” wherein courts construct a constitutional mandate or standard to apply horizontally, that is, between individuals.

Private Constitutionalism is when private actors adopt the constitutionalism principles, when private actors change the constitution in a way of adopting the practices also when the rights are enforced against the private actors. 

The project showcases all three aspects.  

The interaction between the fundamental rights and private actors happens through horizontality. The Horizontal rights are broken down into two- 

Under the direct horizontality framework, a non-state actor’s actions can be evaluated directly using the framework of Fundamental Rights, negating the need to create a legal bridge between the two parties by placing the non-state actor under the definition of “other authorities” in Article 12 or by holding the State accountable in any other way.[1]

This course of action is particularly tenable when it comes to Fundamental Rights, which explicitly state that the State is not required. Article 15(2) prohibits, for instance, denying any citizen access to stores, restaurants, public entertainment venues, or places of worship based solely on their race, caste, sex, or place of birth.

Similarly, human trafficking and bonded labor are forbidden by Articles 17 and 23, respectively, as is the practice of untouchability. It is evident from all of these instances that the relevant Articles’ language omits any reference to the requirement that the deprivation be attributed directly to the State or any State agency. 

 It is important to note at this point that while the aforementioned Rights do not express the State’s responsibility to prevent violations of Fundamental Rights, they do not release the State from its affirmative duties to prevent such violations.

The Supreme Court noted in the People’s Union of Democratic Rights vs. Union of India case: [2]

“…whenever any fundamental right that is enforceable towards private individuals—for instance, a fundamental right enforced in Article 17 or 23 or 24—is being violated, the State is required by the Constitution to take the appropriate action to stop the violation and make sure the private individual who is violating the right observes it.” [3]Naturally, a person whose fundamental rights have been violated can always go to court to have those rights upheld, but it doesn’t relieve the State of its constitutional duty to ensure that no fundamental rights have been violated.

In a similar vein, the Supreme Court is incredibly successful in interpreting the clauses allowing for horizontal applicability in a broad and intentional manner. For instance, the Supreme Court granted a plenary meaning of the word “shops” of Article 15(2) and included all types of enterprises that offer goods or services within its reach in the context of Indian Medical Association vs. Union of India Consequently, the requirement to treat everyone equally under the constitution was extended to private schools.[4]

The scope of Direct Horizontal Applicability is occasionally expanded to include clauses such as Article 21, which has equalized the status of private entities with the State and established a positive duty to protect an individual’s life and personal liberty. The Court stated in Parmanand Katara vs. Union of India that “every doctor, whether at a government-run hospital or otherwise has a professional duty to extend his services with due skills and expertise for securing life,” after concluding that the provision for emergency medical services is safeguarded by Article 21. [5]

In a similar vein, the Court noted in Consumer Education and Research Centre versus Union of India, 21 that “the State, be it Union as well State government or an industry, public or private, is enjoined to take any action which will promote health, strength or vigor of the workman throughout the period of employment and leisure and wellness even after retirement as necessities to live the life with health and happiness.”

The Court’s ruling broadened the scope of the right to life and included the right to health and environment within its expanded ambition.

As a result, the Supreme Court has expanded the scope of Direct Horizontal Applicability beyond its more evident terms. In fact, it has gone one step further and ensured that private organizations, like the State, have been held responsible for taking proactive measures to protect specific fundamental rights.

In Rajasthan’s Society for Unaided Private Educational Institutions of 2012, the Right of Students to Compulsory and Free Education Act 2009, (RTE) continued to apply. The Act requires free education for students between the ages of 6 and 14 and requires all schools, particularly unaided private ones, to accept 25% of their student body from underprivileged groups. This requirement is tied to government school reimbursements.

In contrast to Direct Horizontality, an Indirect Horizontality concept has necessitated legal reforms, whereby the State is held accountable for a person’s denial of Fundamental Rights as a result of a non-state actor’s actions. This strategy also takes into account circumstances in which the Court has emphasized that the State has a clear obligation to make sure that there are no infractions committed by private parties or by its own employees and agencies. In the process, it has frequently interpreted private agreements and covenants in regard to constitutional precepts. 

When a respondent is a private actor acting in the capacity of a private actor, this is referred to as indirect horizontality. However, the legislation that the respondent uses to support its actions is being contested, not the respondent’s actions themselves. 

The well-known case of New York Times v. Sullivan, in which the US Supreme Court determined that the common law for defamation as it was administered by the state’s Courts of Alabama contrary to the New York Times was incompatible with the right to freedom of free expression and speech, is a prime illustration of indirect horizontality. As a result, the Court changed defamation law to comply with the Constitution in private defamation lawsuits involving Sullivan with the New York Times, clearing NYT. [6]

Nonetheless, the “radiating effect” of the German Court’s rulings is the most well-known illustration of indirect horizontality.

In light of the well-known Luth case:

“The Basic Law isn’t a text that is neutral towards values. Its part on fundamental rights creates an objective hierarchy of values, and that hierarchy amplifies the significance of fundamental rights. It follows that fundamental rights have an impact on [the evolution of] private law. Every private law provision needs to be read in the spirit of the law and ought to be consistent with this set of values.

Put another way, fundamental rights have an impact on private law & private adjudication even outside the framework of the Constitution.

The Supreme Court introduced indirect horizontality under the context of defamation & privacy, which were common law torts prior to that decision, in the case of 

R. Rajagopal v. State of Tamil Nadu. In order to bring the common law for defamation into adherence to the provisions of Article 19 (1) (a) of the Constitution, it was adjusted based on the ruling in New York Times v. Sullivan, which adopted a stiffer standard for plaintiffs. To defend a person’s right to privacy over others, it also made reference to Article 21. [7]

There are two general ways it can happen:

Impact upon private law: Since private law regulates the legal interactions between people, constitutional rights may have an indirect impact on it. This implies that the rights may restrict the activities, choices, and interests of private actors that may be legally protected.

Restricted usage: A horizontal indirect influence could be “strong” and “weak.” In the strong form, constitutional rights completely apply to all private law, regardless of its nature or subject matter. In contrast to other forms of government intervention, many aspects of private law might not be completely covered by constitutional rights in the weak version.

Indirect horizontality cases frequently call for a careful balancing act. This is due to the fact that actions that are prohibited by the State are frequently totally appropriate for private parties. Laws that do nothing more than allow or facilitate private agreements that people are free to make although the State isn’t ought to be repealed or changed. For example, the Supreme Court ruled in Zoroastrian Cooperative v. District Registrar that members of cooperative societies were allowed to associate with anybody they wished, superseding the individual’s right to nondiscrimination. As a result, the Court maintained the contested laws as well as the bye-laws that gave the Society permission to reject individuals based only on their religion.

In general, the indirect horizontal impact lessens the gap between the public and private sectors in the scope of constitutional rights by extending such rights into the private sector.

Although the origins of the division between public and private law are frequently found in Roman law, it is conceptually understandable and operationalizable. Constitutional, criminal, & administrative laws that control how different departments of government interact with one another or with specific subjects make up public law. Contrarily, private law is concerned with how people interact in their individual capacities, including matters of tort, contract, and property.

The distinction is more on the structural makeup of the legal directions that control and shape the relationship in concern than it is about the personalities of the parties involved. [8]Government actors frequently enter into contracts and agreements with private parties or with other government actors, so entering the private law sphere to the extent that their relationship is primarily horizontal.

In private law contexts, however, the state assumes a supporting role, offering a layer of security for the involved parties to work out the ramifications of their relationship. Because of this background function, private law has a unique claim to legal conformity, which is established through the terminology of rights and obligations that the state-created theory establishes prior to ending the partnership.

The question of whether private law may exist independently of the state is still up for debate among academics, but it shouldn’t stop us from distinguishing between public and private laws.

Chapter 2

The British colonial authority in India started an effort to codify common law throughout British India in the nineteenth century. Fifteen laws were passed between 1860 and 1910, covering a number of topics related to private law, including property law, contracts, and unjust enrichment, including the law of private remedy. Though it was never codified, Indian tort law initially appeared on the topics needing legislative involvement. The fundamental principles of English law were the starting point for British codifiers, who adjusted them to fit Indian society. To reduce judicial discretion and erratic legal change, they employed precise definitions and unambiguous, bright-line standards. Through this activity, Indian private law was separated from common law & its inherent generativity. 

Following codification, private law cases were viewed by Indian courts as essentially involving the interpretation as well as execution of governmental mandates. The authors of the Indian Constitution preserved pre-independence laws in force till the Indian Parliament updated them with more recent versions, granting them legal standing under the country’s new constitution.

In an effort to reduce judicial inventiveness and lawmaking, colonial legislation from the late nineteenth century primarily confined Indian private law. When it comes to creating private law policies and guidelines, Indian courts play a submissive role. The British passed specific laws at the beginning of the 20th century that established civil redress procedures for compensation. Newer codes, such the Railways Act of 1989, the Motor Vehicles Act, of 1989, and the Workmen’s Compensation Act, of 1923, were progressively modified by Parliament after independence. The main components of Indian tort law are specific liability regimes, each of which addresses a particular field of endeavor.

The main components of Indian tort law are specific liability regimes, each of which addresses a particular field of endeavor. Courts typically limit their interpretation and application of the law to treating such acts as having worn out the relevant topic. These specialized enactments are interpreted and applied in a manner that is fundamentally identical to those of other fields of general legal regulation. In the entire Indian private law, judicial lawmaking is essentially nonexistent.

Since the 1980s, the Indian court had a major impact on contemporary Indian public law, especially constitutional law. Both substantive & procedural modifications have been made in this regard, such as broadening the scope of the constitution’s safeguards over fundamental rights to include progressive socioeconomic rights and reducing limitations on the timing and manner in which harmed parties may petition the court for redress[9]. The “Public Interest Litigation” movement in India is the term used to describe these developments. 

The original writ jurisdiction of the Indian Supreme Court, as stated under Article 32 in the Indian constitution, made possible the most important improvements that the court brought about, known as the PIL reforms. Due to its dual jurisdiction, the court was able to independently adopt significant modifications to the rights without needing to remand cases back to the lower court. This extension of parties’ standing served to improve plaintiffs’ access to justice in addition to broadening the organization’s own jurisdiction.

Soon after, high courts adopted the provisions of Article 226 to grant them a comparable but narrower writ jurisdiction concerning fundamental rights. Under Indian law, the majority of private law cases are filed at the district court’s level, which is part of the lower courts. Since Indian independence, the public and private law domains have approached substantive lawmaking within the common law style differently because the higher judiciary only has appellate authority in this field. As a result, whenever feasible, the Indian judicial system feels compelled to handle private law issues through its broader public law machinery.

Digital Constitutionalism

Edoardo Celestai was the one who cemented the concept of digital constitutionalism – The branch of modern constitutionalism known as “digital constitutionalism” is adjusting fundamental constitutional principles to the demands of the digital age. In the altered context of the digital society, digital constitutionalism promotes the maintenance of fundamental values like the rule of law, the decentralization of powers, democracy, and the protection of the rights of people. Through a variety of constitutional counteractions, both inside and outside the state, it sets off a convoluted process of constitutionalization of the virtual world.

The process of adding new concepts, guidelines, and procedures to a constitution to adapt it to changing social conditions is known as constitutional innovation. It entails modifying the constitutional framework to preserve principles and rights in a world that is evolving. This process can take many different forms, such as creating new constitutional procedures, recognizing new rights, or creating new norms. Innovation, however, may be hampered by opposition from those who profited from the status quo. It’s possible that conventional constitutional rules won’t sufficiently handle the issues in the context of today’s digital revolution. Constitutional innovation is greatly aided by Internet bills of rights, which articulate values and rights for the digital age. This continuous process helps create constitutional norms in the digital age and illustrates how dynamic constitutional systems are.

A theoretical movement called “contemporary constitutionalism” aims to modify fundamental constitutional principles for the digital age. [10]It promotes the translation of fundamental ideas like democracy, the separation of powers, the rule of law, and the defense of human rights. While addressing the issues brought forward by the digital revolution, digital constitutionalism maintains the essential elements of modern constitutionalism. Diverse conceptions of digital constitutionalism emerge as distinct parts of a larger whole, acknowledging the presence of normative tools that apply constitutional ideals to the digital society and addressing the power constraints of dominating players.

Digital Constitutionalism’s characteristics

  • Constitutional Law is Changing: Digital constitutionalism draws attention to the continuous changes taking place on the constitutional level as a result of the difficulties brought up by the digital revolution.
  • Internet Bill of Rights: These are declarations that outline values and rights for the Internet age, but they are not legally binding. These projects are a novel approach to proposing fresh constitutional remedies for the era of digital technology.
  • Constitutional values translated: The goal of digital constitutionalism is to adapt modern constitutionalism’s values and tenets to the demands of the digital age. It aims to maintain the essential elements of modern constitutionalism while modifying its core principles for the digital age.
  • Multilevel Process: A multiple and multilevel approach is used in the creation of constitutional rules for the digital age. It encompasses the input of multiple stakeholders as well as an analysis of the constitutional messages presented by online bills of rights.
  • Constitutional Anaemia: Digital constitutionalism aims to tackle the situation of constitutional anemia that arises from the struggle for constitutional standards to incorporate novel social realities in the digital realm. It seeks to outline fundamental rights and obligations that all-powerful parties—public and private—should uphold.

These characteristics of digital constitutionalism offer thorough suggestions for a constitutional structure in the digital society and mirror the continuing discussion on how to reinterpret the legal system in the digital era.

Within the digital age, the Internet’s Bill of Rights represents a noteworthy creation that attempts to create enduring rules and benchmarks for the developing digital society. These bills have an experimental quality that makes it possible to investigate cutting-edge concepts and unusual fixes. As a barometer for the soundness of constitutional frameworks and a reminder of the necessity of adapting conventional constitutional norms to the realities of the digital age, they are essential in forming constitutional tenets in the age of digitization.

Internet bills of rights, with their gradualist approach, spark discussion and debate on constitutional norms for the digital society. They stress the necessity of safeguarding the web as a virtual public space based on fundamental roles, values, and governance principles. They contend that maintaining the integrity, stability, transparency, openness, and decentralization of the Internet is a duty owed by dominant actors to all persons.

Existing constitutional rights are modified by internet bills of rights to resolve the discrepancy between the law and reality in the digital age. These texts make clear the ideals that must be upheld in the age of technology by putting forth novel ideas and outlandish solutions. To sum up, Internet bills of rights are a driving force behind digital constitutionalism, which in turn helps to address the issues posed by the digital revolution as they arise. By utilizing constitutional language, they are able to contribute to the discussion on digital-age constitutional ideals and principles, helping to shape the Internet’s future and guaranteeing its preservation as an essential forum for civil and personal liberties.

Digital constitutionalism can be interpreted in a variety of ways, but they are not mutually exclusive. When viewed as a whole, they become apparent as various aspects of a more comprehensive whole. All of these views acknowledge the existence of different normative tools that translate constitutional principles in the digital society and deal with the limitation of the authority of dominating actors, public as well as private. The goal of digital constitutionalism is to uphold fundamental ideas while modifying them to meet the demands of the digital era.

In response to the World Summits on Information Society (WSIS), the Brazilian legislation “Marco Civil da Internet,” as well as the Declaration of Internet Rights approved by the Italian Chamber of Deputies, internet bills of rights, which include a Charter of Human Rights and Principles in the Internet as a whole, were developed. By articulating enduring principles that can be used as benchmarks in the future, these measures want to further the current conversation on constitutional principles for the digital age and spark discussion about their applicability.

Many Internet bills of rights have emerged as a result of the accessibility and affordability of publication online, which has made it possible for non-institutional actors—such as people and civil society organizations—to create and disseminate their own charters on the Internet. Internet bills of rights have been criticized for being disorganized and disjointed in discussions on digital constitutionalism; however, their diversity can be viewed as a constructive kind of gradualism, growing the discussion of the constitutional principles for the digital age, experimenting with novel approaches, and fostering a wider discussion.

Example – Delhi Declaration for A Just Internet 

Everybody has the right to the most basic forms of digital enablement, which include the following: access to the Internet and its resources; involvement in the creation of new content and applications; and acquisition of the skills and training required to use the Internet and various other digital tools effectively.

Protecting the variety of languages and cultures requires securing the right to access and participate in the development of the Internet, such as its content, especially that of marginalized groups, minorities, and indigenous peoples. This right must be achieved through affirmative action and protective discrimination.

Everyone has the right to internet freedom of association and expression. Restrictions, whether based on security concerns or not, must have clearly defined objectives and adhere to the widely recognized standards of necessity, proportionality, and judicial scrutiny.

Everyone is entitled to privacy and the freedom to use the web with no fear of widespread surveillance.

Everyone has the right to internet freedom of association and expression. Restrictions, whether based on security concerns or not, must have clearly defined objectives and adhere to the widely recognized standards of necessity, proportionality, and judicial scrutiny.[11]

Chapter 3


In India, Public Interest Litigation (PIL) first arose in the early 1980s, mostly in situations involving the mistreatment of inmates by state actors, such as jail authorities, who typically used physical force. The Supreme Court’s first action in using its absolute jurisdiction under Article 32 to defend and uphold the fundamental rights guaranteed by the Constitution was to lower the standard of Locus Standi[12], thus, allowing third parties to petition the Court in any manner or way to seek relief. Subsequently, the Court construed its authority to permit it to review the issue on its own initiative, also known by the term “Suo Moto”, which meant doing away with the requirement that there should be a case or disagreement in order for the Court to exercise its jurisdiction.

These early cases involving public interest litigation were essentially constitutional tort suits, in which the petitioner accused the government agent of violating a fundamental right enumerated in Part III of the Constitution by its action or inaction[13]. The Supreme Court’s early integration of tort law and constitutional law under the guise of public interest litigation was not so much intentional as it was a direct outcome of its lax allowance of compensatory damages in such cases. In the early stages of public interest litigation, the Court started granting financial damages to petitioners who were successful.

Chief Justice Chandrachud supported this method in Rudul Shah v. State of Bihar but acknowledged a clear problem that the regular legal procedure would be avoided by the plaintiff if he is permitted to seek damages through a writ petition, often known as a public interest litigation action, as opposed to a standard civil suit. [14]Nevertheless, denying such awards could jeopardize the credibility and very effectiveness of public interest litigation. After deciding to grant the petitioner money damages in the Rudul Shah case, the court stated that by doing so, it was “mulct[ing]” violators i.e. imposing fines on wrongdoers and providing a “palliative” for victims. At that point, the Court was essentially giving recovery aspects that were both punitive and exemplary.

The Rudul Shah case solidified the Court’s tradition of awarding damages in cases involving successful public interest litigation. The Court was also granted a great deal of leeway in determining the amount of these damages due to the dual-purpose argument. Over time, the Court continued to provide petitioners with financial compensation while also broadening the scope of claims filed under the purview of public interest litigation. In contrast to the early instances, which featured purposeful or intentional actions by the government (such as unlawful imprisonment, torture of prisoners, etc.), the Court was much more inclined in later cases to expand culpability to include circumstances in which a government agent had omitted to perform any action. By erasing the divide between act and omission, public interest litigation began to encompass circumstances in which a victim’s injury was caused by the government’s inaction. 

The Court’s strategy in public interest litigation cases began to resemble standard tort claims based on private law as a result of this extension of subject matter. In incidents of medical malpractice involving government-run facilities, this was particularly evident. Instead of being the focus of a straightforward negligence action against the doctors or hospital staff, a government hospital’s negligence in providing care or failure to provide treatment could now be the subject of a writ petition against the government, with the petitioner potentially receiving compensation from the court in either case. The petitioner has two sets of “rights” against the parties: a private law right against the private party and a fundamental right against the government. 

However, there were numerous benefits to filing the action as a writ petition from the standpoint of the petitioner, or victim[15]. The two most significant of these were that the procedure was accelerated and that a court’s decision within its writ jurisdiction could be based solely on affidavit evidence, with no additional testimony needed. In exercising their own writ jurisdiction under Article 226, the various High Courts quickly adopted this approach, which was hardly exclusive to the Supreme Court. The Indian higher judiciary’s public law doctrine came into direct conflict with private law, or tort law, as a result of the constitutional jurisdiction’s development in scope, coverage, and remedial framework. This was a reality that litigants themselves, particularly defendants, started to realize.

The question of whether the Court’s practice of compensating petitioners under its writ jurisdiction—and for a range of subject areas—amounted to an encroachment of private law, i.e., tort law, was not directly addressed by the Court until 2000. [16]A practicing Calcutta High Court attorney, Mrs. Chandrima Das filed a petition under Article 226 of the Constitution against the Chairman of the Railway Board in Chairman, Railway Board v. Chandrima Das, presenting the court with a case involving a foreign national who had been viciously gang raped at a government-owned railway station. [17]The incidents in question took place on government-owned and operated property while the workers were not on duty. The government was particularly sued in the petition for financial recompense for failing to protect the victim and stop the crime, claiming that this was a violation of the victim’s fundamental rights. The petition was filed under Article 226 before the Calcutta High Court as a procedural matter, and the High Court’s decision was then appealed to the Supreme Court. The state actor, who was the defendant in the case, objected to any compensation being awarded in the Supreme Court. They contended that this would amount to the higher courts usurping private law in the exercise of their writ power. The defendant held that certain areas of private law, including tort law, required a complex factual record before compensation could be awarded, and the writ procedure was not set up to provide this, as evidence was only ever provided on affidavit and witnesses were never questioned. Even if the Court did not agree with these arguments, they nevertheless made the Court address the private-public law divide and the claim that its writ authority had been arbitrarily applied. Unsurprisingly, after looking into the matter, the Court only reiterated its prior rulings and those of the several High Courts, claiming to be in the process of figuring out a rationale for the overlap.

Using conclusory language, the Court noted that in cases involving public functionaries and the enforcement of public duties or violations of fundamental rights, the remedy would still be available under the Public Law regardless of the possibility of a suit being filed under Private Law for damages.

Since the crime of rape was “not a mere violation of an ordinary right,” the Court determined that a public law remedy was quite appropriate, since it amounted to a breach of the victim’s right to life under Article 21 of the constitution. It’s crucial to remember that the Court explicitly upheld the simultaneous character of private and public law claims for the same set of circumstances, so directly addressing the usurpation argument because they give rise to two distinct categories of rights (fundamental and ordinary). The Court felt that the recognition of a parallel jurisdiction, as stated in its reasoning, allayed the fear of usurpation. 

The Court was also significantly freed at the substantive level by this parallelism. As a result of realizing that its public law jurisprudence was separate from private law even though it relied on it, the Court was now able to alter or do away with any substantive private law restrictions that it believed to be preventing it from exercising its writ jurisdiction and protecting constitutional rights. One such barrier was the necessity of causation under private law, which is essential to all tort claims.

Since the employees in the case were clearly operating outside the bounds of their work when they sexually attacked the victim, the court in Chandrima Das even went so far as to abolish the “course of employment” criterion for vicarious responsibility in public law-based tort claims. Now, the petitioner was awarded damages based on the causative attribution of their employers’ activities, which were entirely private.

The Chandrima Das ruling was an essential turning point in the Indian legal system’s integration of public and private law. The Court not only officially confirmed all that had previously occurred, but it also provided the higher judiciary with a rudimentary analytical framework that allowed the merger to be completed in terms of functionality. First, it informed all of the nation’s High Courts that petitioners may always start their own separate private law case, so long as they exercised their writ authority and used lesser evidence requirements to continue granting compensation. In short, the public law action was to be viewed as fulfilling an independent (and more significant) purpose rather than as a substitute for a private law claim. Second, because the public law aspect of the claim gave it a new purpose that may supersede some private law restrictions, it now permitted courts to freely alter the content of private law proceedings when presented as public law claims. This could occur at the claim level (cause, for example) or remedy level (damage computation, for example).

In conclusion, tort law and private law concepts were gradually and purposefully incorporated into Indian constitutional law doctrine. Early constitutional law rulings that insisted on giving victims discretionary monetary awards for rights abuses by state actors served as a major catalyst for the merger. Due to the lack of actual restrictions on the court’s ability to grant compensation, a parallel system of private law adjudication was essentially created under the guise of a public law system of redress when the subject matter of these public interest claims grew.

Chapter 4

Facebook Board –
Mark Zuckerberg, the CEO of Meta, published a roadmap in 2018 that outlined new and improved approaches for Facebook and other platforms to maintain accountability and legitimize the rules governing huge online communities.

In response to this note, Meta created an oversight board with the help of academics and experts to act as an impartial second opinion on some of our most important and challenging content decisions. The board was founded on the straightforward premise that Meta shouldn’t have to decide so many significant issues pertaining to safety and free speech on its own.

We then went through a global consultation procedure to get more insight on how to institutionalize this idea. Experts from across the world, including academics, technical specialists, attorneys, designers, and technologists, in addition to members of the public, contributed to this consultation. They were able to create the frameworks and guidelines that would act as the board’s governing papers thanks to their comments. This involved creating the board’s bylaws, creating an independent trust, and drafting a charter.

The first 20 members of the Oversight Board, a distinguished and perceptive group with backgrounds ranging from heads of state to journalists to professors, were revealed in May 2020.

Members received training on Community Standards plus Community Guidelines, policy formulation procedures, enforcement mechanisms, and the kinds of content judgments that fall under the purview of the board after this announcement. A thorough introduction was provided to members regarding a novel case management instrument created by Meta. Members can safely access and evaluate relevant case material using this tool from any location in the world.

The board will continue to function as a crucial component of our larger content moderation strategy for years to come. We are dedicated to helping the board grow into an institution and add 40 members. This entails continuously reviewing the board’s purview and striving—a process we have already started—to incorporate new categories of information specified in the rules within that purview.

Platform operators have the ability to claim altered concepts of authority by obfuscating the distinction between the public and private government. The political legality and validity of platform governance are affected by this. There are two schools of thought on the topic of political legitimacy: normative and descriptive. The descriptive method views legitimacy as a trait that belongs to actors who are thought to have the ability or right to rule, whereas the normative approach establishes standards by which an actor’s political legitimacy can be assessed.

Using a rights-based approach & procedural principles influenced by state law, a number of Internet law & communication analysts have investigated the viability and ramifications of “legitimate” control by technological companies based on a normative stance. These methods, however, ignore the question of which actors have the legitimacy to make rules and leave open problems concerning how conflicts between various rights should be resolved.

According to descriptive conceptualizations, legitimacy can be manipulated politically by organizations, that use symbolic manipulation and instrumental manipulation to win over the public. This analysis emphasizes the potential of legitimacy that can be “extracted” through operators of platforms from the appropriation of social and cultural symbols and urges care when applying normative political legitimacy to them. Through an examination of a more extensive database of media coverage regarding OB, the emphasis is on the implications for platform governance as this metaphor becomes more widely known.

Cases –

Based on Community Standards, the Oversight Board reversed Facebook’s October 2020 decision to remove an image meme from an Indian Muslim public forum. A meme picturing a character with a sheathed sword from the Turkish show “Diriliş: Ertuğrul” was posted on the post. Facebook saw the meme as a subtly offensive threat against “kafirs,” a term that the company associated with those who don’t practice Islam.

Citing the international standards for human rights that permit people to look for, receive, and share opinions and ideas of all types, including ones that may be divisive or extremely offensive, the majority of the members of the Board disagreed that the post is likely to cause harm. 

The Board noted that Facebook’s process and standards for recognizing veiled threats are not explained to users under the Community Standards.

The majority concluded that the Board’s decision to reinstate the content was warranted by international human rights norms on expression and that Facebook had not fairly evaluated all relevant contextual information. Facebook’s decision to remove the content is overturned by the Oversight Board, necessitating the restoration of the post. The Board suggests that Facebook give users more details on the extent and application of the limitations on veiled threats, disclose their enforcement standards, and take into account the user’s identity and intent in addition to their audience and the larger context.

There has been criticism of the Oversight Board’s move to reverse Facebook’s removal of a Burmese word that referred to China’s financial practices in the territory of Hong Kong as “torment” and “persecution” from a post. The post was determined to be a debate about politics that did not target anyone in particular or the Chinese people of Myanmar, despite using the Burmese term “$တရုတ်” (sout ta-yote). Facebook countered that the phrase “ta-yote” was understood linguistically and culturally as referring to a shared identity between Chinese people and China. The phrase “state” was verified by the Board’s translators, and the post included terms that the Chinese embassy and the government of Myanmar frequently use to communicate with one another. It was shared by more than 6,000 users and seen by 1⁄2 a million people, yet nobody reported it. Commenters classified the post’s general tone as political discourse.

The decision made by Facebook to remove the posting was overruled by the Oversight Board, necessitating the restoration of the post. The Board suggests that Facebook make sure its internal execution standards are accessible in the language that content moderators use to evaluate content and give precedence to situations where there is a greater risk to human rights. This case emphasizes how crucial it is to take context into account while upholding hate speech laws and safeguarding political speech, particularly in light of the coup that occurred in Myanmar in February 2021.

A crowd violently broke into the Washington, DC, Capitol Building on January 6, 2021, endangering the constitutional order. Then-President Donald Trump violated Facebook’s Community Standards on harmful individuals and organizations by posting two pieces of content on both Facebook and Instagram during this incident. The Board concluded that Trump’s continuous calls for action and his promotion of an unsubstantiated narrative of fraud in elections created an atmosphere in which there was a substantial risk of violence.

At 17:41 Eastern Standard Time, Facebook erased Trump’s post for violating the Community Standards on harmful individuals and organizations. He was also prohibited from publishing on Instagram or Facebook for a full day. Facebook expanded the block “indefinitely as well as a minimum of a period of two weeks till the peaceful transition of authority is complete” on January 7 after further examining Trump’s posts, his current conversations off the platform, and more details regarding the intensity of violence at the Capitol.

Facebook has encountered various obstacles in its endeavors to mitigate the grave dangers of harm emanating from political heavyweights and prominent personalities. According to the Oversight Board, two of Donald J. Trump’s posts from January 6th seriously broke both Instagram’s and Facebook’s community guidelines. The Board concluded that there was a significant risk of violence due to Trump’s story of voter fraud and his repeated appeals for action, as his words of solidarity for the rioters justified their violent behavior. As a leader, Mr. Trump commanded significant power, and his messages had a wide audience—he had 24 million Instagram followers and 35 million Facebook followers.

Facebook has good reason to suspend Mr. Trump’s account on January 6 and then again on January 7. Facebook should not have implemented an “indefinite” suspension, nevertheless. Facebook did not adhere to a transparent, documented process, and the company’s content regulations do not mention “indefinite” suspensions. Facebook’s standard sanctions include either a temporary suspension, the removal of the offending content, or the permanent deactivation of the Page along with the account.

It is the Board’s responsibility to establish appropriate sanctions in response to serious infractions of its content policy. Facebook should align its policies and procedures with its principles, human rights commitments, and content policies. In this instance, Facebook is attempting to evade its obligations by imposing an ambiguous, non-standard fine and then sending the matter to the Board for decision-making.


Facebook’s decision to bar Mr Trump from posting content on Instagram and Facebook on January 7, 2021, was upheld by the Oversight Board. Facebook has ‘indefinitely’ suspended Mr.Trump’s accounts, thus the corporation needs to review this punishment. Facebook is required to reconsider the arbitrary punishment it imposed on January 7 and determine the right penalty within six months following the verdict. This punishment needs to be commensurate with Facebook’s policies for serious infractions, taking into account the seriousness of the infraction and the likelihood of further harm.

The minority members of the Board stressed that Facebook needed to take action to stop similar negative effects on human rights and make sure users who ask to be reinstated after being suspended acknowledge their mistakes and promise to follow the rules going forward. Facebook made it clear in its referral to the Board that it was looking for “observations or comments from the Board regarding suspensions when a user corresponds to a political leadership.”

With regard to the significant risks of harm caused by political leaders along with other powerful figures, the Board made a number of recommendations to direct Facebook’s policies. Among these suggestions are:

  1. Giving content with political speech from very powerful users to staff members with expertise in the language and politics.
  2. Creating more content to aid users in comprehending and assessing the procedure and standards for implementing the newsworthiness allowance, specifically how it pertains to prominent accounts.
  3. Conducting a thorough analysis of Facebook’s possible role in the narrative around electoral fraud & the heightened tensions that led to the incident in the US on January 6.
  4. Clearly stating within its corporate rights-related policies the ways in which it gathers, maintains, and disseminates data to support inquiries into serious transgressions of international criminals, human rights, or humanitarian law.
  5. Outlining the procedure for strikes and penalties when it comes to limiting Pages, groups, and profiles.
  6. Creating and disseminating a policy that guides Facebook’s reaction to emergencies or unique circumstances in which its usual operating procedures are unable to stop or avert impending harm.

The Reddit moderators have placed a similar restriction in various sub reddits in the social media’s arguably most opinionated platform on the internet. 

The Sub-reddits have certain moderators that review each post according to its karma restrictions. 

Redditors who volunteer their time to help build and run Reddit’s numerous communities are known as moderators, or just mods for short. Every Reddit community features its own goals, aesthetic, and set of guidelines, which include what kinds of postings are appropriate and how members should conduct themselves. 

Within their community, moderators are capable of the following things: 

  • Mark their comments or posts as contributions from official moderators. 
  • Take down all comments and posts from their community.
  • Prohibit spammers and other users from posting or leaving comments in their community if they appear to be violating any community guidelines. 
  • Assign moderators to more Redditors.

One may view a list of community moderators on the web on the right sidebar. 

They don’t have any specific powers outside of restricting the post and they are liable to Reddit’s Moderator Code of Conduct. 

The consequences are that private bodies are showing greater signs of constitutionalism, and the awareness of rights and their interplay in everyday lives has assured that these pro-rights practices are here to stay. In all three instances, the sole profiter are the people.


The Constitutionalization of Indian Private Law by Shyamkrishna Balganesh :: SSRN

The Indian Constitution and Horizontal Effect by Stephen Gardbaum :: SSRN 

India’s Supreme Court Upholds The Horizontality Of The Fundamental Right Of Freedom Of Speech – Implications On Data Privacy – Privacy Protection – India (

Digital Constitutionalism | The Role of Internet Bills of Rights | Edo (

Facebook oversight board overrules company on most cases in first test | Reuters

Constitutional metaphors: Facebook’s “supreme court” and the legitimation of platform governance – Josh Cowls, Philipp Darius, Dominiquo Santistevan, Moritz Schramm, 2022 (










[9] Penn Carey Law






[15] Penn Carey Law

[16] Penn Carey Law


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