Despite a range of interpretations of what the Fourteenth Amendment requires and permits, doctrinal practice in the United States remains wedded to a dividing line between public and private, between state and nonstate action. Some provisions of the Indian Constitution likewise stipulate that certain rights control only state action, and some constitutional interpreters have indeed foregrounded such provisions. However, more capacious interpretations of rights, indeed of rights as ends, have contributed to the official constitutional story from its earliest days. From arguments of key framers to later Supreme Court judgments, Indian constitutional discourse often understands rights as requiring more for their protection and fulfillment in comparison with American rights. Amid yet another history tainted by inequality and caste, such crucial political figures as Dr. B. R. Ambedkar, who himself was a Dalit, aimed to fashion a constitution that would break down divisions and ameliorate discrimination. Hence, several constitutional provisions admitted space for the possibility that rights be grounded in larger constitutional ends from which private actors were not necessarily insulated. Examining Indian constitutional arguments through this book’s republican framework reveals a theoretic potential in the discourse. Indeed, various episodes since the Constitution’s adoption in 1950 have been marked by arguments echoing concepts like a common good and duties of citizens. All this has occurred in a context where, like the United States, the reach and nature of equality itself hung in the balance.

In the same way that the US debate cannot be summed up solely in terms of state action or verticality, neither does the Indian debate show an uninterrupted trajectory toward horizontality. Not all of the Indian framers, much less the array of constitutional actors since the Constitution’s adoption, subscribed to the same vision of equality, nondiscrimination, and social justice for India. In the years leading up to the Constitution’s framing, Jawaharlal Nehru, the independence activist and first prime minister, acknowledged that the Indian constitutional moment might be born of merely a “semi-revolutionary situation.”Footnote ¹ Nehru thus showed some confidence that India was approaching the moment in which it would reconstitute itself, as well as a kind of realism that the impetus for such a revolution likely would not pervade the country as a whole. He was right; many did remain tied to structures of oppression that ran contrary to the eventual constitutional vision.Footnote ² Picking up on this idea of a “semi-revolutionary situation,” Jacobsohn and Roznai further suggest that the Indian polity at the time of independence might have been comprised of only “a semi-revolutionary people.”Footnote ³ Even by the time the framers adopted and drafted the Constitution, they point out, divergent strands of thought and conflicting positions contributed to the final document – some supported the project of secularism and equality, while others were inclined to constitute the country on the basis of Hindu nationalism. Even into the twenty-first century, scholars find both transformative and more nationalist conservative interpretations of the Indian Constitution among political actors and institutions.Footnote ⁴

In addition to this different interpretation vis-à-vis the place of equality and nondiscrimination in the Constitution, Granville Austin describes competing understandings of the very content and requirements of these rights. This comes in his account of three “strands” underlying the Indian Constitution’s philosophy: “protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians.”Footnote ⁵ While many observers and constitutional actors understood these three to be “mutually dependent and inextricably intertwined,”Footnote ⁶ these strands also would come to exist in some tension.Footnote ⁷ Most relevant to this book, the traditional rights that one might associate with the second strand’s “institutions and spirit of democracy” did not always sit comfortably with the third strand’s more ambitious goal of “social revolution.” While the former was manifested in the Constitution primarily in Part III’s guarantees, such as equality, the latter appeared in Part IV’s Directive Principles, including the call to institute affirmative action programs (known as reservations) to benefit those populations who were subjected to discrimination.Footnote ⁸ Although the Directive Principles of Part IV were technically nonjusticiable, they were essential to understanding the constitutional vision as a transformative one, charging the state to transcend traditional formulations of rights in favor of more substantive ends across Indian society.Footnote ⁹

Austin’s account, therefore, anticipates both a static element and a dynamic element in the new constitution. Whereas the static provision for, say, the right to equality in Part III, Article 14 would by itself support a more conservative tendency, a more aspirational substantive equality, what Marc Galanter calls the Constitution’s “compensatory theme,”Footnote ¹⁰ arguably comprises a more comprehensive and dynamic vision. Figures like Ambedkar and Nehru, who sought transformation, urged that the Indian project could only be realized fully in recognizing the dynamic element, thus contending “step by step” with a still-unreceptive political culture.Footnote ¹¹ These two elements are likewise present in ensuing jurisprudence of the Indian Supreme Court, which displays both conservative and transformative bents in the handful of decisions in which it has confronted the horizontal application of rights to private actors.Footnote ¹²

In the interest of taking stock and thinking comparatively, in the United States we saw a kind of crescendo of disharmony in constitutional discourses over time, as the limited equality that prevailed in the Civil Rights Cases (pace the Radical Republicans) did not rest easily with the way understandings of equality shifted during the Civil Rights Movement of the 1960s. In contrast, we see disharmony at the very start in India, in the juxtaposition of Ambedkar’s and Nehru’s aspirations with the broader political situation that promised to hamper their vision. Whereas disharmony between public discourses and the official constitutional line proved to be a kind of terminus in America when the US Supreme Court would not revisit the reach of equality during the sit-in protests, it is better characterized as a discursive starting point in Indian constitutionalism since, for many, nondiscrimination and fraternity were ends toward which the country needed to strive but that required more than what some sectors of the polity would permit.Footnote ¹³

It is in a similar spirit that Jacobsohn and Roznai identify a kind of “step by step revolution” in India, involving both “steps backwards and forwards,”Footnote ¹⁴ that incrementally furthered more ambitious understandings of the constitutional project at least in certain moments.Footnote ¹⁵ This same understanding led the Indian framers to provide for horizontal application in several constitutional provisions. Moreover, much about the early constitutional debates possessed a republican valence,Footnote ¹⁶ sometimes explicitly so. Both during the framing and in later episodes of constitutional politics, such republican proclivities can be seen in arguments about transcending more limited understandings of equality and extending duties beyond state actors to involve private actors as well. Likewise, the handful of cases in which the Court has considered horizontal application have often cast the issues at stake in terms that may be conceived of as republican, often deployed in service to transformative understandings of the constitutional project. Indeed, the foundations for such ends-oriented arguments that support horizontal application were established with the 1950 Constitution.

At the same time, arguments less amenable to transformative interpretations, including those respecting horizontal application, persist in constitutional discourse. In certain ways, a continued diversity in the discourse is more conspicuous in Indian constitutional history than in other contexts this book considers insofar as the Indian Supreme Court decides cases in panels, called benches, selected by the chief justice, rather than en banc. In other words, only a few justices at a time, rather than the whole thirty-four member court,Footnote ¹⁷ will typically be charged with deciding a case. Outcomes are thus largely contingent on the composition of those benches and make more tenuous any claims about the court’s doctrinal trajectory. Nevertheless, for the purposes of this book, the practice of deciding cases in benches may put more constitutional understandings on the table for examination. Doctrinal trends may be more difficult to locate, but discursive threads across eras and court cases are quite discernible.

This context engenders arguments similar, in both range and substance, to those that Chapter 3 examined in the United States. Indeed, what follows shows a continual choice in Indian constitutionalism between more transformative and conservative constitutional discourses, with the former generally correlating with the horizontal application of rights. Nevertheless, this chapter also reveals new discursive possibilities when the horizontal application of a range of equality and nondiscrimination rights is more explicitly provided for in the constitutional text and framers’ visions. Of course, a court’s choice to pursue a more transformative or restrained line cannot but be influenced by such contingencies as institutional strength (or limitations, as the case may be) and political will.Footnote ¹⁸ However, pursuant to this book’s project to take constitutional discourses as the focus, the primary concern here is to foreground more theoretic lessons, highlighting the potential republican lines of thinking as Indian constitutional actors, operating amid pervasive inequality, contemplate how the horizontal application of rights might grow out of the constitutional project. From cases ranging from labor to education emerge an interpretation of the Constitution as a far-reaching and public project, where public values are not constrained to particular rights formulations, issues, or spheres but potentially implicate all corners of life and a vast cross-section of the Indian populace.

Freedom and Fraternity: Drafting a New Constitution

The Indian independence movement’s leaders and constitutional framers sought unity and equality in the country’s founding.Footnote ¹⁹ A decade after independence, Nehru articulated the new constitutional project as “to promote fraternity, assuring the dignity of the individual and the unity of the nation.”Footnote ²⁰ “Fraternity” was thus considered a major factor in securing individual dignity and rights, to say nothing of the very unity of the newly constituted polity.

This same idea, that relations between citizens are crucial to the success of a democratic India, runs through the deliberations preceding ratification.Footnote ²¹ Members of the Subcommittee on Fundamental Rights believed that citizens’ duties should not be neglected amid so much discussion of rights. K. T. Shah cautioned that “the constitution would be incomplete, and even futile, if equal stress were not laid on obligations corresponding to rights,”Footnote ²² and that “every one of these rights [in the draft Statement of Fundamental Rights] would be impossible to realise, unless, side by side, toleration is cultivated and enforced.”Footnote ²³ Shah goes on to develop this idea in a way that makes it immediately relevant to the subject of horizontal application, speaking of “the seeming conflict in certain rights due, so to say, to the right of one person or of one group becoming the obligation of another.”Footnote ²⁴ This explanation of a “conflict between rights” and of rights becoming “the obligation of another” gets to the heart of horizontality’s republican character, as it generates new duties in a liberal context.

Throughout these deliberations, the framers seemed to be more concerned with cultivating a culture of mutual obligation among fellow citizens than a more specific doctrinal understanding of horizontality as it might develop in constitutional law. That many of the framers sought a culture of fraternity and understood private actors as having obligations to one another is a far cry from the state action requirement through which equality came to be understood in the American context. And indeed, the United States’ experience with equality (and inequality) had a direct influence on this stage of drafting of Indian constitutional rights to equality.Footnote ²⁵ In his draft articles and notes, the Father of the Indian Constitution himself voiced concern to avoid the discrimination that had lingered in the United States as a result of constitutional actors’ formulations of divides between private and public, state and nonstate action. B. R. Ambedkar’s draft articles explicitly dealt with access to public accommodations, eligibility for various offices, and the like.Footnote ²⁶ In his notes on these particular draft articles, Ambedkar states that he borrowed language for some of the provisions from the Civil Rights Acts of 1866 and 1875, “passed by the Congress of the United States of America to protect the Negroes against unequal treatment.”Footnote ²⁷

Whereas in the American context Justice Bradley worried that these laws would force whites to endure “another kind of slavery”Footnote ²⁸ and Justice Black later worried that reading the Fourteenth Amendment to guarantee equal access to public accommodations would limit liberty too much, Ambedkar and others in the Subcommittee on Fundamental Rights were intent not to understand equality simply in terms of private and public. In Ambedkar’s own words, “Discrimination is another menace which must be guarded against if the fundamental rights are to be real rights. In a country like India where it is possible for discrimination to be practiced on a vast scale and in a relentless manner fundamental rights can have no meaning.”Footnote ²⁹ In this way, deliberations during the constitutional drafting and subsequent debates often understood equality as necessitating at least some cooperation from private actors.

The Subcommittee on Fundamental Rights did not ultimately adopt Ambedkar’s draft articles, but did bring articles before the Constituent Assembly that aimed at securing the right to equality, including the prohibition of discrimination in public accommodations (Article 15), untouchabilityFootnote ³⁰ (Article 17), begarFootnote ³¹ and forced labor (Article 23), and child labor (Article 24). Insofar as the problem of inequality did not distinguish between spheres of life, so too did these provisions presume to bring the new public commitments to equality and nondiscrimination into private spaces.Footnote ³² Many framers’ preoccupation with encompassing private entities in the constitutional plan, and particularly the commitment to nondiscrimination, is evident in Article 15. This Article prohibits discrimination in two separate clauses: one aimed at the state, and the other aimed at private individuals or nonstate actors. Both clauses employ the same language and specify the same protected categories: “religion, race, caste, sex, place of birth or any of them.”Footnote ³³ Though these clauses possess almost identical content, the framers nevertheless thought it necessary to include both in the final Constitution, with Sardar Vallabhbhai Patel going so far as to say both were “absolutely essential.”Footnote ³⁴

In some ways, however, the inclusion of two separate clauses – one obligating state entities, and another private nonstate entities – complicates the story. On the one hand, the fact that the framers thought it was necessary to specify that a right obligated the state suggests a departure from the traditional model in which one could assume that rights only ever obligated the state.Footnote ³⁵ On the other hand, implicit in the fact of these separate clauses is the idea that private and public entities are distinct, and perhaps that their obligations are different. Indeed, Patel describes prohibitions of private discrimination in arenas like restaurants and hotels as “a completely different idea” from the state’s obligation not to discriminate.Footnote ³⁶ Moreover, in detailing additional private establishments, such as “wells, tanks, bathing ghats, roads and places of public resort,” Article 15(2b) prohibits discrimination only in situations in which these establishments are “maintained wholly or partly out of State funds or dedicated to the use of the general public.”Footnote ³⁷ Similarly, Article 14 guaranteeing equality before the law has a state action requirement. The text reads: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Though the framers maintained ambitious ideas of the duties of citizens, they still distinguished between state and nonstate actors in matters of law and politics.

The framers were unlikely to collapse the categories of public and private completely given how this distinction largely defines liberalism and given the generally different capacities of state and nonstate actors.Footnote ³⁸ Indeed, as in other jurisdictions, the importance of the distinction decreases as the means and power of private entities increase.Footnote ³⁹ Nevertheless, the Indian framers’ recognition of some distinction between public and private actors created ground on which a young Supreme Court would argue against horizontal application, at least in particular instances if not writ large. At the same time, much in these early constitutional debates reflects a kind of republican vision of the polity’s problems that the Constitution was designed to address with its attendant duties of citizens. Likewise, the debates and ultimate text do not contain anything quite like the Centrist Republicans’ understanding in postbellum America that drove a wedge between social and civil rights. Rather, the debates reveal comparatively broad consensus during the framing of the Indian Constitution that a right to nondiscrimination required both.Footnote ⁴⁰ Discrimination from any corner of society had to be fought if fundamental rights were to be “real rights” and “have meaning.”Footnote ⁴¹ In this way, Ambedkar and other Indian framers articulated a conception of the Constitution as transformative and, as such, necessarily dynamic. And while traditional understandings about the requirements of equality and nondiscrimination remained present in the discourse, a larger role for private actors in realizing such rights of fellow citizens gained new momentum in constitutional understandings.

The Conservativism of the Early Supreme Court

That the Constitution distinguishes between private and public spaces, and between state and nonstate actors, figured into some of the Supreme Court’s earliest decisions. These followed other countries’ practices, and the conventions of constitutionalism more generally, to confine the application of rights to the state.Footnote ⁴² Early decisions conforming to this conventional understanding include PD Shamdasani v. Central Bank of India (1952)Footnote ⁴³ and Vidya Verma v. Dr Shiv Narain Verma (1956).Footnote ⁴⁴ Nevertheless, these are also ambiguous cases, insofar as the constitutional language alone offers interpretive space in which the Court might have applied the rights in question to private actors had they been so inclined. In these early cases, however, the Court employed a kind of canned understanding of constitutionalism, with only perfunctory consideration of how the Indian Constitution might call for something more or something different. Quoting an earlier case, Justice Bose writes in Vidya Verma, “[A]s a rule constitutional safeguards are directed against the state and its organs and that protection against violations of rights by individuals must be sought in the ordinary law.” Sudhir Krishnaswamy describes this approach as “stipulative and unreasoning” for its inattention to how the constitutional text and its theoretical basis could lead to a different understanding of the scope of fundamental rights.Footnote ⁴⁵ Indeed, it takes as granted conventional accounts of constitutionalism, conceiving of rights as creating a relationship between individuals and the state, and not considering that they might embody certain ends for the polity as a whole. Nevertheless, these two cases did not foreclose the possibility of such an understanding and the future development of horizontality insofar as they limited their analysis to the individual rights provisions in question “instead of deciding the issue wholesale.”Footnote ⁴⁶ In fact, later cases do show a Court understanding the polity’s issues in more republican terms and embracing a dynamic constitutional projectFootnote ⁴⁷ aimed at more ambitious understandings.

In addition to resisting any move toward horizontal application at this early stage, the Court also resisted government efforts to make good on the new constitution’s “compensatory themes,” articulated in the Directive Principles that charged the government with working toward a more substantive equality. In State of Madras v. Champakam Dorairajan, the Supreme Court struck down a state initiative that reserved specific spaces in government jobs and universities for members of lower castes.Footnote ⁴⁸ Whereas the State of Madras had relied on Article 46 of the Directive PrinciplesFootnote ⁴⁹ in pursuing this policy, the Supreme Court operated on a more narrow understanding of the ends of equality and nondiscrimination grounded in a prioritization of Article 16(2),Footnote ⁵⁰ prohibiting discrimination, over other provisions in that same Article 16 that permitted greater complexity.Footnote ⁵¹ Similar to the early cases directly concerning horizontal application, the Court here chose to emphasize some aspects of the Constitution over others, maintaining that quotas in government jobs violated equality under the law. Further, whatever preference the Court already had toward a more conservative interpretation was reinforced all the more by the fact that the Directive Principles were nonjusticiable, in contrast with the equal protection of the laws and other such rights in Part III of the Constitution, the protection of which was clearly within the courts’ purview.Footnote ⁵²

In response to such judgments “impeding the fulfillment of government’s perceived responsibilities” under the Directive Principles,Footnote ⁵³ parliament passed the Constitution Act of 1951. In this First Amendment to the Constitution, a parliament, largely composed of the same members that had drafted the Constitution,Footnote ⁵⁴ pushed back against the Supreme Court’s restrictive decision in State of Madras v. Champakam Dorairajan. The Amendment aimed to clarify a series of rights under Part III of the Constitution, including the rights to property and to equality, in order to preempt further claims that they somehow stood in the way of state-initiated reservation programs. In this way, such affirmative actions to assist historically deprived populations could not be challenged on the basis of discrimination.Footnote ⁵⁵ Jacobsohn and Roznai explain this as “a step forward in the dialogical advancement of a dominant, if not indisputable, view about achieving distributive justice in the polity.”Footnote ⁵⁶ However, the Court did not take even a constitutional amendment as the final word on the question, waging an ongoing battle for power with parliament in the ensuing years.

A couple of decades, as well as several significant decisions and constitutional amendments, later, the Court had a considerable opportunity to push back against parliament in Kesavananda Bharati v. State of Kerala.Footnote ⁵⁷ In this decision, the Court established what has become a crucial concept of Indian constitutionalism, known as the Basic Structure Doctrine, the idea that “specific features of the Constitution are deemed sufficiently fundamental to the integrity of the constitutional project to warrant immunity from drastic alteration.”Footnote ⁵⁸ The initial cause (and effect) of this decision was to declare that the Court in fact had power to determine if an amendment passed by parliament (specifically, the Twenty-Fourth and Twenty-Fifth Amendments) went so far as to destroy, rather than simply modify, the Constitution’s basic structure. In particular, a narrow majority of the Court argued that while amendments could enact some limitations to individual rights, the Constitution permitted such limitations only to a point. The initial impetus for this judgment was, admittedly, to stem parliament’s power against the judiciary. However, this same Basic Structure Doctrine would gain additional legitimacy when parliament did pass dubious constitutional amendments. Indeed, the doctrine has been often enlisted to the cause of a more capacious understanding of the Indian constitutional project, including the support of the Directive Principles and even the expansion of horizontal application.Footnote ⁵⁹

The Supreme Court thus assumed a fairly conservative posture in the years immediately following the Constitution’s adoption. It conceived of individual rights in such a way as to deter parliament’s efforts to enact transformative legislation and, moreover, insisted on a vertical model of rights that limited the influence of constitutional values in private spaces. Constitutional debates and particular provisions distinguishing between state and nonstate action rendered such early decisions against horizontal application viable.Footnote ⁶⁰ Nevertheless, these readings did not accrue in Indian constitutional politics the same entrenched status we see in the more limited interpretations of equality that followed the United States’ Fourteenth Amendment. Indeed, even if the state were the primary guarantor of rights, a larger project, grounded in the debates and constitutional text, aimed at the polity’s more thorough transformation.Footnote ⁶¹ Citing such constitutional understandings, the Indian Supreme Court would ultimately give indirect horizontal application to Article 14’s guarantee of “equality before the law” and “equal protection of the laws” in spite of its state action requirement and would not just support reservations but support them in private spaces, too. Nevertheless, it took years of political conflict and institutional consolidation before the Court began to make such arguments. Nehru might have explained this as part of the step-by-step revolutionFootnote ⁶² that depended as much on political will as on the theoretic potential of the foundations established by the framers.

From Rights to Ends: Toward a Broader Constitutional Understanding

Eventually, the Supreme Court acknowledged a constitutional project more comprehensive than its early decisions suggested, specifically in reassessing the reach of rights in Part III of the Constitution.Footnote ⁶³ As early as the 1963 case State of West Bengal v. Union of India,Footnote ⁶⁴ the Court began to understand rights as also engendering a broad constitutional program. In this understanding, a right was “an obligation imposed not merely upon the ‘State,’ but upon all persons to respect the rights so declared, and the rights are enforceable unless the context indicates otherwise against every person or agency seeking to infringe them.”Footnote ⁶⁵ In this, we see an operative logic different from the aforementioned cases, in that certain rights might, in fact, create duties “for all persons” according to the commitments of the Constitution. In this way, at least some constitutional actors put greater weight on the requirements of particular articles of the Constitution and, not unlike many US cases, expanding the definition of “the State,” per Article 12, to admit further application of rights even under a state action requirement.

In the wake of the Emergency Era of 1975–1977, the Court, chastened by its broad capitulation to executive power, was eager to reassert itself as a defender of all rights and not a mere instrument of the privileged.Footnote ⁶⁶ Emboldened in this way, the Court acted to widen the application of fundamental rights, including through the horizontal application of certain constitutional rights. In People’s Union for Democratic Rights v. Union of India (1982),Footnote ⁶⁷ the petitioners sought to enforce existing labor laws against contractors who were paying less than minimum wage in a construction project. The petitioners argued that the state had failed to enforce these labor laws, but also that the private contractors had violated laborers’ right to equality (Article 14), right to life (Article 21), and rights against exploitation (Articles 23 and 24). With respect to the right against “begar and other similar forms of forced labor” (Article 23), Justice Bhagwati explained that certain constitutional rights were “enforceable against the whole world.”Footnote ⁶⁸ Moreover, he described the right against child labor (Article 24) as “plainly and indubitably enforceable against everyone.”Footnote ⁶⁹ Insofar as Article 14 includes a state action requirement, Bhagwati dealt with it somewhat differently. Rather than giving Article 14’s right to equality direct horizontal application, as with Articles 23 and 24 where horizontality is basically required by the text, he gave this provision indirect horizontal application, expanding the state’s duties to ensure that private entities met minimum wage requirements.

Though limited in some ways, People’s Union is notable for the arguments the Court made in developing horizontal application in Indian constitutional law, particularly on provisions that bear on equality. In spite of some language of state action in the Constitution, People’s Union illustrates how “differently phrased rights may apply horizontally to a different extent and in a different manner,”Footnote ⁷⁰ and particularly those rights that bear directly upon India’s larger project toward equality and nondiscrimination. The concern in this case is clearly not to negotiate equality along a boundary of what is public and what is private, which is arguably how much of the state action discourse in the United States has unfolded. Rather, the Indian Court’s interpretation raises the more positively constructed question of how the right to equality may charge private individuals and nonstate actors to act in certain ways. This approach, Krishnaswamy suggests, serves as a kind of model, “as it pays attention to the constitutional text, the nature of the right, and the context in which the right is claimed.”Footnote ⁷¹ In this way, the Court avoids making all disputes automatically subjects of public law while carving out a space to understand equality as creating constitutional obligations for private citizens.Footnote ⁷²

The specific rationale in People’s Union reveals what is arguably a republican understanding of the issues at hand. As Gautam Bhatia notes, beyond the fact that the workers received an amount less than the minimum wage at the time, the Court focused on the reality of exploitation and force underlying the entire situation. This was not merely a freedom to go about one’s life without interference but a freedom from the power of “market forces” from which employers benefited and which they reproduced in turn.Footnote ⁷³ Thus, Bhatia identifies a labor-republican understanding of freedom in People’s Union, one that appreciates the arbitrary power that human-made structures and systems may impose to the benefit of some and at the expense of others.Footnote ⁷⁴ This conception of freedom finds grounding in the Constitution itself, as such figures as Ambedkar took on more than a rights regime, but also confronted the belief that existing orderings were somehow neutral.Footnote ⁷⁵ Instead, the Constitution embraced a “social vision” that called into question existing economic arrangements and relationships that stood to hamper the project of fraternity. In light of such a goal, attempts to dissect the meaning of the word “freedom” were less helpful than considering “what my moral obligations to you are.”Footnote ⁷⁶ Indeed, in this understanding, individuals and other private actors inevitably garner some obligations to one another.

The judgment in People’s Union thus articulates both the problem of forced labor and its solution in republican terms. In contrast to the logic of state action, which does not offer conceptual space to consider the possibility of citizens’ duties as such, the Court found basis for a republican logic in the constitutional history and text, not least in such aforementioned provisions as Articles 23 and 24 that imply the possibility of horizontality. The Court might have expanded the concept of state action so as to encompass nonstate actors (such as public accommodations) as a practical matter, an approach employed in both the US and Indian contexts at times. However, no concept of individual constitutional duty follows from this reasoning. Instead, in People’s Union, the Court drew from a preexisting lexicon to formulate an understanding of constitutional duty. Admittedly, this case serves as a kind of “signpost to a road not yet taken,”Footnote ⁷⁷ as horizontal application remains nascent in Indian constitutionalism. Nevertheless, the sort of space that People’s Union makes for private obligation finds its origins in the priorities of the framers, as well as the constitutional text itself. “Appealing to the framers’ understandings,” Justice Bhagwati explains that Article 23

That the framers laid the groundwork for the concept of horizontal application could thereby spare the Indian Supreme Court some of the concerns the Warren Court faced in the 1960s when it too was inclined to conceive of cases in more republican terms.Footnote ⁷⁹

The Indian Constitution’s stronger foundation for horizontality in its constitutional vision comes into sharp relief in a couple of cases that have analogs in the canon of American constitutional law. Although legal scholars dispute the status of these cases from a technical standpoint as instances of horizontal application, they do reveal an underlying core that can be cast in terms of republicanism, particularly when contrasted with the analogous US cases. First, Vishaka v. State of Rajasthan (1997)Footnote ⁸⁰ speaks to the issue of the state’s duty to protect in ways not unlike the American case DeShaney v. Winnebago County (1989).Footnote ⁸¹ Apart from the usefulness of this case for its parallels with DeShaney, Vishaka is often considered an important case in its own right for horizontal application in India. Vishaka involved a social worker, employed by the State of Rajasthan, who was brutally gang-raped on the premises of her workplace after she attempted to stop a child marriage. A trial court’s acquittal of her attackers served as the impetus for others to file a class suit to establish laws against sexual harassment. Before Vishaka was decided in 1997, the only relevant provisions against such abuses were those couple of provisions of the penal code under which the social worker had sued. The petitioners argued that these did not adequately address the hazards to women in the workplace and that the issue should take on a weightier constitutional status.Footnote ⁸² The petitioners stated:

Thus, petitioners sought to highlight the state’s failure to protect rights by way of legislation and, by extension, how this failure directly resulted in the violation of women’s rights by private actors.

In his careful reading of the case, Stephen Gardbaum points out that it is not entirely clear who the Court thought responsible for the harm in Vishaka. Indeed, given the facts of the case, the primary harm was arguably that which the assailants inflicted against the social worker.Footnote ⁸⁴ But even clearer in the judgment is the interpretation that the state inflicted a harm in failing in its duty to protect citizens from such crimes and from sexual harassment in general. Though this understanding falls short of direct horizontal application, since the perpetrators are not themselves responsible for upholding rights, this latter reading is a clear instance of indirect horizontal application. Indeed, private actors were still held to the rubric of constitutional principles in the positive action the state took to regulate behavior. What previously would have been a matter of mere tort, contract, and criminal law became “a constitutional wrong” in Vishaka,Footnote ⁸⁵ as the law was made to accord better with constitutional ends.

Recall Justice Rehnquist’s general argument in the American case DeShaney v. Winnebago County, that the Constitution’s purpose “was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.”Footnote ⁸⁶ This reasoning and its accompanying interpretation of the founding are a far cry from either of the two suggested readings of Vishaka. However one reads it, Vishaka does entail the state’s positive duty to protect individuals. Moreover, while in India and the United States the framers did look to the democratic political processes to execute such protections, it does not follow that in Vishaka such protections were discretionary. Indeed, the Court formulated guidelines instructing that the state should undertake such action as a constitutional matter. In DeShaney, the US Supreme Court insisted on the presence of state action to trigger constitutional rights protections, and that an inaction that led to a private harm was not adequate. In Vishaka, on the other hand, Chief Justice Verma does identify such a positive obligation of the state, thus “widening the scope of application of rights as the court enforces a positive obligation on the state to intervene and decisively alter the relationship between private parties.”Footnote ⁸⁷ Beyond the particular issues of gender equality with which this case was concerned, this reflects the more general divergence between understandings of the US and Indian constitutional projects, the latter being much more concerned with positive steps the state ought to take to remediate such abuses – historical, proximate, and the proximate rooted in the historical.

Also present in Vishaka, and absent from DeShaney, is the understanding that citizens might have duties to one another under the Constitution. While the remedy in Vishaka did not necessarily come by way of the constitutional duties enumerated in Article 51A, insofar as they are not justiciable,Footnote ⁸⁸ the very fact that Chief Justice Verma cites them shows some continuity with the convictions aired in the Constituent Assembly debates. Krishnaswamy understands these constitutional duties as an “interpretive aid” to the Court.Footnote ⁸⁹ Therefore, even if not controlling the case as a doctrinal matter, Verma’s citing these duties suggests that, at some level, “all citizens are under the constitutional obligation not to engage in sexually discriminatory behavior in the workplace.”Footnote ⁹⁰ Contrast this outlook with Mary Ann Glendon’s account of the United States, wherein she describes the “deafening” silence of anything like citizens’ duties in national constitutional law and, in many ways, civic culture.Footnote ⁹¹

Another US case that serves as a useful comparison to this moment in Indian constitutionalism is United States v. Morrison (2000). Indeed, both Morrison and Vishaka concern the introduction of legislation to deter and penalize gender-based violence and harassment. However, in passing the 1994 Violence Against Women Act (VAWA), the US Congress was not acting to fulfill any constitutional duty to protect. Indeed, in Rehnquist’s opinion in Morrison, the Supreme Court decided that the Commerce Clause and Equal Protection Clause did not empower Congress to enact certain sections of the law. Respecting the Commerce Clause, the Court argued that punishing gender-based crimes, as VAWA proposed to do, was beyond the purview of the national government and ought to be left to the states. Moreover, the Court argued that the legislature could not rely on the Equal Protection Clause in regulating private relationships. Citing the Civil Rights Cases as precedent, the Court maintained that the state action doctrine did not permit bringing constitutional commitments to bear on private actors. Neither did the state action doctrine empower the national government to hold accountable state actors, such as the state legislatures, for their inaction to legislate against gender-based crimes.

The decision in Morrison illustrates plainly the contention that the US Congress did not have the same constitutional duty to protect, and indeed could not assume such a duty, as did the Indian Parliament. One could argue that the role of federalism in American constitutionalism makes sense of the outcome in Morrison. Even though India is also a federal country, the arc of its constitutional jurisprudence places much less emphasis on the unique governing power of its states, perhaps symptomatic of differences in its larger constitutional vision.Footnote ⁹² Nick Robinson explains, “In contrast to the American Constitution, which largely solidified the economic and social status quo even while bringing momentous political changes, India’s Constitution was born with an eye towards multiple transformations.”Footnote ⁹³ Moreover, as the 1994 Bommai decision discussed later reveals, such a transformative project on the national scale does not easily allow for significant deference to subnational units. However, separately from the federalism question, the general absence of anything like a duty to protect in the United States is worth noting. The American states could regulate gender-based violence as they wished, but they also could do nothing and face no repercussions, even as state actors. Thus, while the variable of federalism certainly influences constitutional argumentation and the larger story in the United States, the difference between Morrison and Vishaka also points toward a more basic difference that finds expression in Glendon’s insight about the dearth of “duties talk” in the United States. Whereas the Indian Supreme Court in Vishaka mandated government action as a constitutional matter, the US Supreme Court rejected Congress’s initiative as a constitutional matter.

Another case, which has an American analog in the decision of Shelley v. Kramer, may seem to undercut this chapter’s argument at first blush. In 2005, the Indian Supreme Court decided Zoroastrian Cooperative Housing Society v. District Registrar.Footnote ⁹⁴ This case involved a society that restricted membership only to Parsis. Since housing could only be transferred to members, the practical effect of the agreement was that only Parsis were permitted to buy houses in the cooperative society. Both cases thus involved housing restrictions on the basis of classifications that had particular political salience in their respective contexts – race in Shelley, and religion in Zoroastrian Cooperative. To this extent, comparing these cases offers a glimpse into how each polity has addressed fundamental questions of equality among citizens in the common area of housing.

Recall that the US Supreme Court decided Shelley based on the fact that the Court was an arm of the state and would have been implicated in discrimination contra the Fourteenth Amendment if it were to uphold the restrictive housing covenant. While the decision in Shelley technically toes the state action line and distinguishes between public and private spheres, the result clearly approaches and, according to some typologies, even represents a form of horizontal application. Indeed, the case is rightly understood as an anomaly in the long history of state action in the United States. And yet, the Court’s conforming to the doctrine of state action still serves to turn attention away from the actual issue of the case, which was a private harm.

Perhaps surprisingly, the decision in Zoroastrian Cooperative more closely conforms to a strict state action line, at least in the particular outcome the Indian Supreme Court reaches. Rather than relying on the fact that the Court would in effect be upholding the restrictive housing covenant in deciding in favor of the cooperative society, the Court seems to engage the validity of the cooperative society’s agreement itself. While the cooperative society argued its case on the basis of its right to association (Article 19(1)(c)) and minorities’ right to cultural preservation (Article 29(1)), the respondents argued that the restrictive covenant violated public policy, specifically Article 15 of the Constitution that prohibits discrimination in both public and private spaces. Thus, the arguments from both sides invited the kind of substantive analysis the US Supreme Court had avoided in Shelley. Although the Court ruled in favor of the cooperative society, however, it is unclear whether they based their decision on the constitutional rights to association and cultural preservation.

Legal scholars have acknowledged that the reasoning in Zoroastrian Cooperative is “obtuse,”Footnote ⁹⁵ making it difficult to contend with and nearly impossible to come to any definitive conclusion about the controlling rationale.Footnote ⁹⁶ For these reasons, as well as the potentially important fact that this case was decided only by a two-judge panel,Footnote ⁹⁷ the present account of the case is necessarily tentative. There seem to be two lines of reasoning in Zoroastrian Cooperative. On the one hand, although the cooperative society’s bylaw preventing the sale of land to non-Parsis had to conform with “public policy,” the Court argued that conformity with relevant statutory law, namely the Gujarat Cooperative Societies Act,Footnote ⁹⁸ rather than directly with the Constitution was sufficient. It states:

Thus, the Court’s argument amounts to a fairly robust state action requirement, insofar as it maintains some separation between parliament’s ability to legislate private interchange and the Constitution. On this reading, parliament has wide discretion in setting the parameters of such societies without running the risk of implicating the state in any discrimination in which the society chooses to participate.Footnote ¹⁰⁰ Indeed, it may legislate so as to permit such restrictive covenants among religious groups such as the Parsis in spite of the constitutional project to render such categories “legally irrelevant.”Footnote ¹⁰¹ Put differently, private agreements such as the one among the Parsis of this housing cooperative were subject only to such regulatory legislation, and not necessarily the Constitution itself.Footnote ¹⁰²

Zoroastrian Cooperative thus seems to involve a similar reasoning as in Shelley, only reaching the opposite outcome, and even going further in that the state ultimately did uphold the covenant in question. Despite constitutional ends, such as rooting out discrimination and fostering equality, that might hold up public principles as a standard even for private projects, this episode (or at least this first reading of it) signals a kind of retreat to conventional understandings of rights contra the Constitution’s transformative streak. The Court sidesteps both those constitutional provisions that would assign private actors some role in upholding constitutional commitments and those that call upon the legislature to make law in accord with the Constitution. Instead, the Court seems to carve out anew a space in which private actors may enter into contracts unencumbered by constitutional ends.Footnote ¹⁰³

An alternative reading of Zoroastrian Cooperative that is plausible, albeit underdeveloped in the Court’s judgment, is that the Court did engage in constitutional balancing here, and that “its narrow conception of public policy was the conclusion and not the premise of its analysis.”Footnote ¹⁰⁴ In other words, the Court did question and ascertain that the cooperative society’s particular bylaw conformed to the Constitution, and therefore proceeded on this basis to balance the rights to freedom of association and cultural preservation against the right to be free from discrimination. Indeed, there is some evidence for this in the judgment. The Court states:

This discussion about preserving one’s “culture and way of life” suggests that rights such as those found in Articles 19 and 29 did factor into the Court’s judgment, and that the decision in Zoroastrian Cooperative did not hinge simply on the right of private actors to enter any manner of contract under statutory law. Rather than base its decision primarily on a state action requirement, the Court did apply these rights horizontally, in this reading. It simply came down in favor of the rights to association and cultural preservation, in this instance, rather than antidiscrimination. Apart from the fact that the Court seems to refer to these competing constitutional rights, this reading is further corroborated by the fact that contractual rights are, historically, not so prioritized as rights of association in Indian constitutionalism.Footnote ¹⁰⁶ Moreover, which reading is “correct” may matter more for developmental stories than it does for the current theoretical project. That the latter reading of Zoroastrian Cooperative is even plausible demonstrates the theoretical potential for a republican interpretation of horizontality in Indian constitutional discourses.

If there is any merit to this second reading, then this case does involve horizontal application to a greater degree than does Shelley. Indeed, in this latter reading, Zoroastrian Cooperative actually takes up the constitutional substance of the question at stake rather than rely on the fact of judicial enforcement of contracts. One might question, then, how this decision that seemingly favors discrimination comports with the larger purpose of the Indian Constitution. Is not the Indian project founded on the goal of equality and fraternity among all constituent religions, ethnicities, and cultures? The key here may be the fact that the Parsis are a minority population in India. In a similar way, the American case Wisconsin v. Yoder allowed Amish communities to make alternative educational choices for their children, thus acknowledging a need to accommodate differences of particular populations, even as they may sit in some tension with other constitutional commitments. Indeed, such efforts toward accommodation are rooted in other constitutional commitments such as cultural preservation. This is not to say that rights of association and cultural preservation would always trump rights of nondiscrimination. It is unlikely, for example, that such majority populations as adherents to the Hindu faith would have succeeded with the same arguments, since Article 29 of the Constitution refers specifically to minorities’ rights to cultural preservation. As Bhatia argues, the Indian Constitution actually “contains the tools to go one step beyond the solutions advanced in other jurisdictions” when it comes to horizontal discrimination, including restrictive covenants. Indeed, with such provisions as Article 15(2), it may bring the principles of equality and nondiscrimination to bear directly on private actors engaging in a wide range of transactions, whenever constitutional actors are inclined to do so.Footnote ¹⁰⁷

Although one cannot easily sum up the Zoroastrian Cooperative case, one also cannot ignore it when considering the question of horizontal application in India, particularly given the case’s implications for the larger constitutional objects of equality and nondiscrimination. There are good reasons to adopt different readings of the case and to believe that the case’s outcome is circumscribed to the unique set of facts before the Court.Footnote ¹⁰⁸ While one might be justified to draw conclusions about this case only hesitantly, the later case Indian Medical Association v. Union of India (IMA) sheds additional light on the arguments in Zoroastrian Cooperative. Whereas Shelley is a high-water mark for horizontality in the United States, Zoroastrian Cooperative seems to be only one episode in what could be an ongoing thread, pending Court members’ understanding of the Constitution’s ends and, consequently, their receptivity to the republican elements of horizontality. And indeed, in the IMA case that followed a few years later, we see a convergence of discourses concerning the different commitments of Indian constitutionalism – specifically, to the rights enumerated in Part III and the more compensatory scheme of social justice in Part IV. In this later case, the deciding members of the Supreme Court showed themselves willing to engage all parts of the constitutional project. Moreover, in this case the Court employed horizontal application and did so through a republican manner of argument.

Emerging Duties under the Transformative Constitution

A few antecedent battles in Indian constitutional history laid crucial groundwork for the IMA case and expansion of horizontal application. In its early years, the Indian Supreme Court’s judgments showed a kind of “static” interpretation of the Constitution.Footnote ¹⁰⁹ This manifested in its drawn-out battle with parliament, including such episodes as the passing of the First Amendment and the Kesavananda case. Moreover, this static interpretation manifested in the Court’s early horizontal application decisions, which adhered to a state action requirement with respect to Part III of the Constitution. As Jacobsohn and Roznai explain, “[T]he Court became the perfect embodiment of the disharmonies within the Constitution, as it found itself over time on both sides of the tension inherent in the dual commitment to socio-economic transformation and liberal democratic rights.”Footnote ¹¹⁰ Such cases as People’s Union after the Emergency Era and, later on, Vishaka show some shift in the discourse on the reach of Part III rights. While Zoroastrian Cooperative displays adherence to a strict state action rationale, the obscure nature of this decision could be interpreted as additional evidence of a break from prior understandings, at least among some constitutional actors. In contrast with what some readings of Zoroastrian Cooperative might by themselves suggest, later cases reveal some willingness to develop horizontal application further. In particular, the Court has incorporated Part IV of the Constitution, containing the Directive Principles, into its own constitutional purview, a development which certainly bears on the way actors discuss the horizontal application of rights to private actors.

In 1994, the Court decided S. R. Bommai v. Union of India, what has been described as the “linchpin in Nehru’s step-by-step progression.”Footnote ¹¹¹ The case arose amid ongoing violence between Hindus and Muslims following the destruction of a mosque in Ayodhya in the State of Uttar Pradesh. The party in power in the state, the Hindu nationalist BJP, was clearly complicit in its negligence to quell the violence. And so, pursuant to Article 356 of the Constitution, the president of India assumed rule over the state. When the state challenged this action, the Supreme Court explained that, in its failure to take steps to put down the violence, the BJP-led government demonstrated that it “could not be trusted to follow the objective of secularism which was part of the basic structure of the Constitution and also the soul of the Constitution.”Footnote ¹¹² Furthermore, since the Constitution “does not provide for its own demise,”Footnote ¹¹³ the president’s actions were justified as necessary to save the basic structure of the Constitution, including such fundamental principles as secularism as an instrument of equality and the larger catalog of Directive Principles in Part IV.

In Bommai, the Court extended the Basic Structure Doctrine of Kesavananda beyond constitutional amendments to bear on the actions political actors pursue in the course of ordinary politics. Put differently, apart from the electoral repercussions politicians risk in ignoring the Directive Principles, the decision in Bommai established that “a Government will also have to answer for ignoring the Directive Principles of State Policy in a court of law.”Footnote ¹¹⁴ In this way, the Court embraced within its purview the same Directive Principles previously considered unenforceable, realizing a conviction that motivated many in the Constituent Assembly, namely, that the soul of the Constitution included both Part III and Part IV.Footnote ¹¹⁵ Bommai thus marks an important moment in the larger constitutional revolution of which Nehru spoke, and a significant point of distinction from the US DeShaney case. Specifically, it rendered state inaction respecting the Directive Principles constitutionally liable and subject to the judgment of the Supreme Court. Moreover, Bommai set the stage for applications of horizontality that also incorporated the Directive Principles, as became evident in the IMA case.

In IMA,Footnote ¹¹⁶ the Supreme Court applied Bommai to the effect of embracing a transformative constitutional understanding, specifically understanding duties of private actors as emerging not only from some of the rights enumerated in Part III but also potentially from the Directive Principles of Part IV. In short, the Court in IMA brought the Basic Structure Doctrine to bear on parliament’s efforts to effectuate the Directive Principles by way of constitutional amendment. In addition to the usual issues surrounding the enforceability of social policy and the practice of reservations in particular, however, the Court faced the additional question of how such initiatives applied horizontally. Specifically, it considered the validity of the Ninety-Third Amendment to the Constitution, adopted in 2005, that laid groundwork for legislatures to extend to private actors the charge to maintain reservations in education – essentially guaranteeing a requisite level of representation across spheres of life for members of castes and other groups that had faced systematic disadvantage in Indian society. The Amendment added a fifth section to Article 15 of the Constitution that read:

Similar to the First Amendment discussed above, this Ninety-Third Amendment aimed to ensure that Article 15’s guarantee of formal equality would not be deployed against efforts to realize a more substantive equality. However, that this Amendment applied to both public and private educational institutions made it importantly different from prior constitutional developments. Indeed, this Amendment directed the momentum of more capacious understandings of the constitutional project toward private spaces, specifically private educational institutions. Whereas the division between Part III and Part IV of the Constitution (as well as other divisions, as between Article 15(1) and Article 15(2)) had provided grounds on which to circumscribe an already limited conception of horizontal application, the Ninety-Third Amendment began to break down some of these divisions, acknowledging that some constitutional ends would implicate private actors.

Pursuant to this new amendment, the Delhi Act of 2007 prohibited certain educational fees and mandated that a number of seats in all educational institutions be reserved for “Scheduled Castes, Scheduled Tribes and other socially and economically backward classes.”Footnote ¹¹⁸ In the very next year, a private, unaided professional school in Delhi, called the Army College of Medical Sciences, was founded, admitting to their student body only “wards, or children of current and former army personnel and widows of army personnel, who, the school’s defenders claimed, had experienced educational disadvantages relative to the civilian population.”Footnote ¹¹⁹ The school ranked applicants according to their test scores, but made no distinction on the basis of social, economic, or cultural background, other than meeting the army personnel requirement. Therefore, while the population the school aimed to serve might have faced disadvantages of their own, the school’s admission policy did not necessarily benefit those populations belonging to the castes and backward groups the Delhi Act and, by extension, the Ninety-Third Amendment aimed to protect. The appellant argued that the law and amendment were both contrary to the basic structure of the Constitution insofar as they constituted “unreasonable restrictions” under Article 19 (detailing the “Right to Freedom”) and were likely to destroy the freedom to maintain such unaided nonminority educational institutions.Footnote ¹²⁰

In prior years, the Court might have invoked the Basic Structure Doctrine of Kesavananda to uphold a more limited or “static” equality that favored the Army College of Medical Sciences’ case. Instead, however, the Court followed Bommai in that it acknowledged parliament’s efforts to implement the Directive Principles and thereby secure a more substantive equality as part and parcel of the larger constitutional project. In this understanding, the Ninety-Third Amendment did not betray the Basic Structure Doctrine, but rather moved the country forward in a protracted constitutional revolution. Moreover, the particular fact that the Amendment and subsequent law included such private institutions as the Army College of Medical Sciences in its efforts to achieve greater equality did not detract from the constitutional vision. Rather, this effort to reach into private spaces was in line with the vision many in the Constituent Assembly articulated – to bring private actors into the fold of the constitutional project and inculcate a conception of fraternity among citizens. Insofar as abuse occurred and inequality existed without distinction between public and private spaces, so too must the Constitution ultimately reach these spaces. The Court seems to adopt this position for itself in the IMA case, directly speaking to the relationship between constitutional ends and duties of citizens. It states, “[T]he same concerns of national purpose, goal and objectives that inform the constitutional identity [do not] miraculously disappear in the context of the private sector.”Footnote ¹²¹

Furthermore, the Amendment in question not only was consistent with the Constitution, in the Court’s telling, but actually augmented the fundamental constitutional project that had long aimed at transforming the private sphere to effect equality and even fraternity among citizens. Even apart from the new Clause 5 the Ninety-Third Amendment added to Article 15, the Court briefly acknowledged how the preexistent Clause 2 in Article 15 also serves to ground the Delhi Act of 2007.Footnote ¹²² While, prima facie, this provision simply provides recourse for discrimination in “access to shops, public restaurants, hotels and places of public entertainment,” the Court finds in Article 15(2) nothing less than the Constitution’s “conception of social justice,” a conception meant to apply more extensively than standard definitions of “shops” might suggest.Footnote ¹²³ Indeed, the Court maintained, one must read this provision in the context of the polity’s “national aspirations of establishing a society in which Equality of status and opportunity, and Justice, social, economic and political.” Understood through this lens, private establishments must “not contribute to the perpetration of unwarranted social disadvantages associated with the functioning of the social, cultural and economic order.”Footnote ¹²⁴ The Army College of Medical Sciences was perpetuating such disadvantages by not considering the disparate impact their admission standards had on different populations, thereby hampering the Constitution’s end of substantive equality.Footnote ¹²⁵

This effort to bring equality into private spaces took many forms over the years, involving different rights from Part III and, as in IMA, different Directive Principles from Part IV. Moreover, that the question of horizontal application occurred in the specific area of education was not particularly surprising. Insofar as many Indian schools are privately run, bringing education into line with constitutional ends could not but raise the question of horizontal application. Education was a natural sector in which to give effect to constitutional commitments, as education influences so much of the life and future of a polity, as well as how citizens relate to one another and relate to the Constitution. The upshot of such regulation was that schools, including private schools, faced a real call to action when the Delhi Act required the implementation of reservations. This application of horizontality was never going to be instantaneous or effortless. Indeed, these regulations entailed a fundamental shift in the mission of the Army College of Medical Sciences as initially conceived. But then, the Indian Constitution was never going to be an instantaneous or effortless project. As Jacobsohn and Roznai explain, “Since the greatest potential societal effect of group-based admissions policies implicates the private domain, it is only appropriate that a case confronting that issue directly became the occasion for instructive reflection on India’s constitutional revolution.”Footnote ¹²⁶ Thus, more than any of the preceding decisions that implicated the question of horizontal application, the IMA case shows a clear shift from rights-centric understandings to republicanesque discourses concerning constitutional ends and how those ends involve the cooperation of private actors.

The Future of Horizontal Application?

Observers of Indian constitutional politics may find a worksite for the continued development of horizontal rights in questions of religion – an ongoing issue that strikes at the heart of India’s constitutional project. Scholars have described religion in India as “thick” insofar as it occupies a central role in public life in comparison to many other countries today.Footnote ¹²⁷ Many religious practices also stand at odds with constitutional commitments to equality, propagating systems of caste and gender discrimination, for example. Thus, insofar as it adopts a transformative vision, the Indian Constitution could not avoid confrontation with religion.Footnote ¹²⁸ The practical complexity of such reform is clear, as religion is deeply constitutive of many diverse people’s lives and even daily habits.Footnote ¹²⁹ Additionally, a kind of theoretical complexity accompanies these issues. In any context, religion serves to introduce an alternate and independent set of standards – one might even say an alternate set of laws – to the conversation.Footnote ¹³⁰ Thus, whereas questions of horizontality always involve balancing, the particular issue of religion raises unique challenges as religious communities within a polity maintain potentially different understandings of, say, the common good. One necessarily confronts the question of whether and how religious groups should be treated like other nonstate actors such as businesses or private employers. While all countries confront such questions in some form, they become more salient in contexts like India, where religion plays a thick role in daily life and constitutional understandings assume ameliorative or transformative ends.Footnote ¹³¹

The question of the relationship between religion and politics is as old as both religion and politics. However, to adapt the question to the terms of this book, we might ask how horizontality’s function to apply public norms across the polity comprehends the existing norms of religion. To the extent one understands liberalism as requiring a kind of sequestration of religion to a separate private sphere, both for its own sake and for the sake of civil peace, this issue might serve to reveal the reach and usefulness of this book’s republican framework. In short, while a constitution inspired by conventional liberal accounts would likely preserve wider latitude for religious practices, a constitution assuming the republican elements that this book identifies with horizontality may be more inclined to take on the moral question of balancing religious and civil norms against one another. More specific to the Indian context, the Constitution guarantees both freedom of conscience (Article 25) and group rights that allow a religious denomination to “manage its own affairs in matters of religion” (Article 26).Footnote ¹³² At the same time, both Articles 25 and 26 include limitation clauses that admit of some state regulation of religious practices. Unsurprisingly, these dual commitments have come into conflict time and again. The question, for Indian constitutional actors, is how to adjudicate these sometimes-diverging commitments.

These musings necessarily raise the question of horizontal application and, more specifically, the obligations of religious denominations vis-à-vis constitutional commitments to equality and antidiscrimination. The question comes into sharp relief in the 2018 case Indian Young Lawyers’ Association v. State of Kerala, often called the Sabarimala case, considering whether overseers of the Sabarimala Temple should be made to admit women in spite of the long practice of barring women between the ages of ten and fifty. Indeed, the controversy goes back decades and has continued to be disputed even after the 2018 judgment.Footnote ¹³³ The Supreme Court’s current habit in such cases is to weigh whether the practice in question constitutes an “essential religious practice.”Footnote ¹³⁴ If the Court deems something “essential,” then that practice remains protected from regulation under Articles 25 and 26. If not, then that religious denomination incurs duties to adjust their practices to align better with, say, the constitutional principle of equality. And indeed, the Court decided in the Sabarimala case that restrictions to temple entry were not essential to Hinduism and, on this basis, regulable.

In some ways, the essential religious practices test seems deferential toward religion, permitting those practices that run up against constitutional commitments if they are essential.Footnote ¹³⁵ As with any issue raising the question of horizontality, however, religious authorities may still be called to support such public projects as promoting equality, as we saw in the Sabarimala case. The essential religious practices test poses unique challenges, moreover, in that it entangles the Court in “knotty questions of religious and theological doctrine.”Footnote ¹³⁶ Indeed, some criticize the merits of this doctrinal test on the very basis that it charges the state with evaluating and defining the content of religion.Footnote ¹³⁷ Gautam Bhatia, for example, proposes an antiexclusion principle to decide such cases, calling on the Court instead to determine how religious practices bear on secular ends, rather than try to discern the essential practices that should be a matter internal to a given religion.

In addition to being grounded in text and history, an antiexclusion principle avoids the difficulty of a court attempting to discern a religion’s essential practices. Instead, this principle operates on a basis that the Constitution itself adopts and cognizes. Arguably, in this understanding a republican logic is more pronounced, as nonstate actors are held to account for the constitutional project regardless of how it might bear on their religion. Put differently, the antiexclusion principle explicitly operates from the perspective of the state, whereas the essential practices test at least presumes to operate from the perspective of the religion in question, in spite of the aforementioned difficulties of this approach. While the antiexclusion principle is more upfront in its prioritization of constitutional principles, this posture may well be constitutive of any project understood as transformational. In a similar vein, Bhatia explains:

While a transformative project is likely to call for a prioritization of public values in most any context, this seems especially true in a country like India where the project itself has been defined in terms of reshaping deeply rooted religious practices. Put differently, such a transformative project as found in India, by definition, prioritizes the ultimate realization of constitutional ends over certain religious practices.

Cecile Laborde argues in favor of treating religion differently from how “separationist” models, such as the essential religious practices test, propose. Specifically, she argues for a “minimal secularism,” maintaining that religion ought not to be singled out for special treatment when it clashes with public projects, particularly “liberal democratic ideals.”Footnote ¹³⁹ Rather, in her telling, religion should be subject to regulation in much the same way as any other area of life. Evidence of such alternative approaches seems to be present in both India’s constitutional text and history. In fact, a couple of justices have hit upon a similar approach in their judgments – specifically, Chief Justice Sinha in his dissent from the 1962 case Saifuddin v. State of Bombay, and Justice Chandrachud in his concurrence to the Sabarimala judgment. Both judges focus on the impact of each respective case on the public project of antiexclusion, as Bhatia and Laborde advocate, rather than have their argument hinge on any elaboration of religious doctrine.Footnote ¹⁴⁰

Another emergent issue that potentially triggers horizontal application is the rights of same-sex couples. In 2009, the Delhi High Court decided Naz Foundation v. Union of India, overturning a colonial-era provision in the penal code that criminalized homosexual activity on the basis of Article 14 (Equality Before Law), Article 15 (Prohibition of Discrimination), and Article 21 (Protection of Life and Personal Liberty).Footnote ¹⁴¹ Soon after the case was decided, Tarunabh Khaitan described the judgment as a natural conclusion given the principles of the Indian Constitution. He states, “Given the liberal, secular and egalitarian Constitution of India, it is the opposite result that would have surprised constitutional lawyers.”Footnote ¹⁴² And yet, that is exactly what the Supreme Court did four years later. In Koushal v. Naz Foundation, the Supreme Court overturned the Delhi High Court’s 2009 decision and, with it, what Khaitan had described as a “new deal for all minorities.”Footnote ¹⁴³ The Court cited in its reasoning the “principle of presumption of constitutionality” of legislation and the need to ground important decisions in the principles of the Indian polity rather than of foreign jurisdictions (as the Delhi Court had).Footnote ¹⁴⁴ Finally, in the back-and-forth fashion that, Jacobsohn and Roznai argue, defines the arc of India’s constitutional history, the Supreme Court revisited the issue in 2018, this time ruling in favor of decriminalization. The Court stated:

In this way, the Court ultimately argued in its unanimous decision that “the constitutional morality” required this new application of the equality principle in India.Footnote ¹⁴⁶

Insofar as the decriminalization of homosexual activity involved questions about the penal code, this particular sequence of cases implicated only the state and state action. Nonetheless, the Court seized upon the opportunity in its 2018 decision to lay groundwork to extend rights obligations further. It stated:

From the beginning, the Indian constitutional vision was one of “fraternity.” In this light, it is somewhat unsurprising that the Court would gesture toward implications for private actors even as the case itself created obligations only for the state. As a practical matter, this digression in the Court’s argument may foreshadow future moves to hold public accommodations accountable for this extension of the Constitution to gay rights, contingent, of course, on individual justices’ inclination to develop horizontal application further and to do so in the particular arena of gay rights.Footnote ¹⁴⁸

Apart from laying judicial groundwork for horizontality in such dicta described above, a symbolic element pervades this and other decisions,Footnote ¹⁴⁹ in a way similar to how the Constitution itself includes both material and expressive elements. In discussing the significance of the Directive Principles, Marc Galanter explains, “The compensatory discrimination policy is not to be judged only for its instrumental qualities. It is also expressive: through it Indians tell themselves what kind of people they are and what kind of nation.”Footnote ¹⁵⁰ In a similar vein, in the most influential understandings of the Indian constitutional project, the public and the private were never essentially distinct; rather, both spheres speak equally and speak together to what “kind of people” and “what kind of nation” India aims to be.

Conclusion

While it would be an overstatement to say that Indian constitutionalism includes a developed practice of horizontality, this chapter shows certain republican theoretic themes in the discourse that have the potential to support more extensive horizontality, particularly with respect to equality rights. In various episodes, constitutional actors have connected the success of the constitutional project with what transpires in private spaces. From the arguments of such crucial figures as B. R. Ambedkar to the 2011 IMA case, understandings of private actors as having constitutional duties emerge. Indeed, some constitutional actors have understood such duties to emerge not only from those rights enumerated in Part III but also potentially from the Directive Principles of Part IV. Contrast this with the early adoption of a strict vertical model in the United States. That there exists a separate private sphere not subject to constitutional standards steers much of the discourse in that context. This is true even in spite of arguments of the Civil Rights Movement premised on more ambitious understandings of equality and of citizens’ duties. In both contexts we find some republican potential in early formulations and ensuing debates concerning equality’s horizontal application. As courts and constitutional actors continually question whether horizontality emerges from the constitution, however, the discourses in these two constitutional orders tend to exhibit different presuppositions – namely, presupposing vertical relations in the United States, and admitting, or creating, space for some understanding of horizontal relations in India.

The aforementioned cases notwithstanding, the Indian Supreme Court has not frequently enforced constitutional commitments to equality and antidiscrimination in its case law. Likewise, these commitments have often proven not to take root in civil society as a practical matter, as evinced in ongoing social boycotts and the lack of national antidiscrimination law.Footnote ¹⁵¹ However, these established constitutional commitments continually inform debates to presuppose that public ends bear on private spaces and that private entities may have constitutional duties. Recurring in Indian constitutional discourse, including in official accounts, is an understanding of equality as seeking more substance, and as aiming toward fraternity among citizens. In this way, Indian constitutionalism points toward a horizontal project, and one that constitutional actors frequently articulate in republican terms.