Horizontal Rights After Kaushal Kishor: The State-Action Doctrine Has Quietly Died

In January 2023, a Constitution Bench of the Supreme Court answered a reference that had been pending for six years and that the parties, by the time of judgment, had largely forgotten. The reference was framed by a free-speech case — Kaushal Kishor v State of Uttar Pradesh — about whether a minister's intemperate remarks about a victim of a rape investigation could be ground for relief under fundamental rights. The free-speech question was trivial; the reference had collected questions much larger than the case that occasioned it. Four of the five judges held that the fundamental rights guaranteed by Articles 19 and 21 of the Constitution can be enforced against persons other than the State or its instrumentalities.¹ Justice B.V. Nagarathna dissented. The majority's reasoning ran to a few paragraphs, embedded in a longer opinion on collective ministerial responsibility and the State's duty to protect. It was almost casual. It did not engage with the seventy-year case law it overturned. It did not engage seriously with the comparative literature on horizontal effect. It did not work out what the doctrinal consequences might be, or even acknowledge that there were any. The doctrinal reception in the Indian legal academy has been thin. The textbooks of constitutional law have not been rewritten. I want to argue that this is a mistake — that Kaushal Kishor changes the foundational architecture of Indian rights jurisprudence in ways the majority did not pause to map, and that the state-action doctrine that has structured Indian constitutional law since 1950 has quietly died without anyone publishing the obituary.

The pre-2023 settlement, in three propositions

Begin with what Kaushal Kishor displaced. The state-action settlement that governed Indian fundamental rights from 1950 to 2022 rested on three propositions. They were not always articulated together, but they functioned together, and they made the Indian rights architecture coherent.

The first was textual. Article 12 of the Constitution defines 'the State' for the purposes of Part III, and the catalogue of rights then uses 'the State' as its addressee in the principal equality and freedom provisions — Article 14, Article 15(1), Article 16. As Padmanabhan's chapter in the Oxford Handbook lays out at length, the Indian Supreme Court has, since Rajasthan State Electricity Board v Mohanlal and Sukhdev Singh v Bhagat Ram, stretched the meaning of 'other authorities' in Article 12 well beyond the original structural reading.¹¹ Statutory corporations, government companies, and bodies with 'pervasive State control' have all been pulled into Article 12 under the agency-or-instrumentality test of Ajay Hasia and the financial-functional-administrative-control test of Pradeep Kumar Biswas. The body of work is messy, and the line between structuralism and functionalism is poorly drawn, but it operates within a single conceptual constraint: there is a meaningful distinction between 'State' and 'non-State' actors, and only the former are bound by Part III except where the text or the Court's case law expressly says otherwise.

The second was textual in a different way. Articles 17, 23, and 24 — the prohibitions on untouchability, forced labour, and child labour in hazardous occupations — were read in People's Union for Democratic Rights v Union of India⁵ as 'plainly and indubitably enforceable against everyone'. Article 15(2), on access to shops, hotels and public entertainment, was read in the Constituent Assembly debates and by subsequent benches as carrying private-actor reach by design. These were the exceptions. They were intentional, textually marked, and they functioned as exceptions only because the surrounding rights were verticalised.

The third proposition was institutional. As Gardbaum's comparative chapter put it as recently as 2016, India sat in the 'weak indirect' horizontal-effect bracket — alongside Canada, distinct from Germany and Israel.⁴ The Court had used three techniques to give Part III some private-actor reach without conceding direct horizontality. It had imposed affirmative protective duties on the State (Vishaka,⁷ the asbestos cases). It had stretched Article 12 to capture more entities. And it had developed a constitutional-tort jurisprudence under Articles 32 and 226 that allowed monetary compensation against the State for the acts and omissions of private parties placed in its custody.¹⁰ What it had not done — what Zoroastrian Cooperative Housing Society v District Registrar³ in 2005 explicitly refused to do — was to hold that the substantive fundamental rights in Articles 14, 15, 19 and 21 could be directly enforced, in writ proceedings, against private persons.

The strongest case for an exception was Consumer Education and Research Centre v Union of India,⁶ the asbestos-workers case from 1995, in which the Court did appear to apply Article 21 against private employers as well as the State. Gardbaum reads it as the cleanest available instance of direct horizontal effect in the pre-2023 period. But even there, the Court was careful to phrase the duty as one running both to the State and to industries, and the orders that issued were directed jointly. The judgment did not announce a doctrinal shift. It announced an outcome, and parked the doctrinal question.

Even the strongest doctrinal pre-2023 statement on private-actor reach — the nine-judge privacy bench in Justice K.S. Puttaswamy (Retd.) v Union of India¹³ — was careful to leave the horizontal-application question open. The bench held that privacy is a fundamental right enforceable against the State. It expressly reserved the question of whether the right is enforceable against private actors, treating the latter question as one that would have to be decided when a private-actor case arose. That reservation is the most authoritative statement the Court has ever made that the direct-horizontal question was open and had not been answered. Kaushal Kishor in 2023 answered it for two rights — Articles 19 and 21 — without engaging the privacy reservation, without explaining how the answer for those two rights leaves the answer for the others undecided, and without acknowledging that Puttaswamy's caution had been the official position for the six years between the two judgments. The reasoning gap is large enough to drive a constitution bench through. A future bench, asked whether Article 14 binds private actors, will have to choose between extending Kaushal Kishor's logic and respecting Puttaswamy's reservation. Both are Constitution Bench holdings; neither cites the other on the point that matters.

This was the settlement. It was untidy, and it was getting more untidy with each PIL the Court took up, but it had a shape. Part III bound the State. The exceptions were named. The private-actor reach of fundamental rights was operationalised indirectly — through statutes the State was required to pass, through protective duties the State was required to perform, through constitutional-tort awards against the State for failures to protect. Kaushal Kishor took a wrecking ball to this and left it in pieces.

What the majority actually held

Four of the five judges held, in answer to one of the reference questions, that 'a fundamental right under Articles 19 and 21 can be enforced even against persons other than the State or its instrumentalities'.¹ The route the majority took to this conclusion is worth pausing on. The reasoning relied on the observation that the right to life under Article 21 had been read, in the post-Maneka case law, to include rights of human dignity, privacy, health, and reputation; and that some of these expanded contents had, in cases like Consumer Education and Research Centre and the privacy dicta in R Rajagopal v State of Tamil Nadu, been treated as actionable against private parties. The majority then generalised. If the expanded Article 21 had been treated as horizontally enforceable in some cases, the underlying right itself could be treated as horizontally enforceable in principle. Articles 19 and 21 were the two rights that the reference question put on the table; the majority answered as to those two.

What is missing from the reasoning is at least as telling as what is in it. The majority did not engage with Zoroastrian Cooperative. It did not engage with P.D. Shamdasani v Central Bank of India,² which had held in 1952 that Articles 19 and 31 are protected against State action and not against private acts. It did not engage with the textual point that Article 14, Article 15(1) and Article 16 use 'the State' as their addressee and that the catalogue is, in this respect, internally differentiated. It did not engage with the comparative literature on direct horizontal effect. It did not address Nagarathna J's careful dissent on these points. The judgment performs the move and walks away from the wreckage.

Justice Nagarathna's dissent is, I think, the more rigorous opinion. She read the textual differentiation among the Part III rights as carrying weight. Some rights are addressed to 'the State'; some, by their construction, are not; the distinction is a drafting choice and not an oversight. She read Shamdasani as good law, Zoroastrian Cooperative as good law, and the indirect-horizontal-effect machinery the Court had built over fifty years as fit for purpose. Her dissent does not deny that Part III rights reach into the private sphere in important ways. It denies that the rights themselves, in their primary form, bind private persons. The dissent loses; the law of the Constitution changes; but the doctrinal work the dissent does has not gone away. It is sitting in the law reports, waiting to be picked up by a future bench, and it is the work the majority should have done and did not.

What Kaushal Kishor changes in principle

The change in principle is straightforward and unsettling. Articles 19 and 21 are, on the majority's holding, horizontally enforceable. A private actor who, by speech or conduct, deprives another private person of a freedom protected by Article 19 — the freedoms of speech, assembly, association, movement, residence, or profession — has, on this account, infringed a constitutional right. A private actor who, by conduct, deprives another private person of life, of personal liberty, or of any of the content the Court has read into Article 21 (dignity, privacy, health, environment, livelihood, reputation, fair procedure) has, on this account, infringed a constitutional right. The infringement is not metaphorical. It is the infringement of a right under Part III, the rights to which Article 13 applies, the rights whose enforcement Article 32 secures.

This is a far larger change than the four-paragraph reasoning in the majority opinion suggests. Consider what it means. A neighbour who plays music at high volume infringes my Article 21 right to a healthy environment. An employer who fires me for what I said on social media on a weekend infringes my Article 19(1)(a) right. A housing society that refuses me admission on grounds of religion infringes my Article 19(1)(e) right to reside in any part of the country, in the way Zoroastrian Cooperative said it did not. A platform that suspends my account infringes my Article 19(1)(a) right. None of these are far-fetched applications. They are the straightforward consequences of holding that Articles 19 and 21 bind 'persons other than the State'.

The textbooks have not absorbed this because the textbooks have not yet been forced to. The judgment came down; the case it decided was unremarkable; the four-paragraph holding has not been pressed into action by any subsequent bench. The doctrinal silence is the most striking feature of the post-2023 period. A Constitution Bench overruled — without saying it overruled — Shamdasani, Zoroastrian Cooperative, and a body of case law that had structured the entire State-action jurisprudence, and the academy and the bar have collectively shrugged. I want to insist that this silence is the wrong response. The settlement was real, and what replaces it has to be worked out, because the majority did not do the work.

What Kaushal Kishor cannot change in practice

Here is where the argument turns. The change in principle is dramatic. The change in practice cannot be, because Kaushal Kishor is doctrinally maximal and remedially empty. The Court announced that Articles 19 and 21 bind private actors. It did not — and it could not — provide the machinery to make that binding work.

Three pieces of machinery are missing.

The first is a statutory mechanism. The pre-2023 cases that produced private-actor reach for Part III — Vishaka, the asbestos cases, the bonded-labour cases — worked because the Court framed them as triggering statutory or quasi-statutory regimes. Vishaka was the gap-filling injunction that became the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The asbestos directions worked because they were issued alongside enforcement orders against State pollution-control boards. The bonded-labour rulings worked because they triggered Section 23 of the Bonded Labour System (Abolition) Act 1976. The pattern is that direct horizontal application of a constitutional right needs to attach itself to a statutory hook, because the private actor is otherwise without a procedural address. Kaushal Kishor provides no statutory hook. It announces the right and leaves the citizen to find a forum. The forum is, on the face of it, Article 32 — but Article 32 is a writ jurisdiction designed for proceedings against the State, and the writ remedies (mandamus, certiorari, prohibition, quo warranto, habeas corpus) are, with the partial exception of habeas corpus, public-law remedies.

The second is a constitutional-tort framework for private actors. Balganesh's chapter on the constitutionalisation of Indian private law tracks the development of constitutional-tort jurisprudence through Rudul Sah, Bhim Singh, Nilabati Behera, and Chandrima Das.⁹ The framework that emerged was, as he puts it, a mechanism for awarding monetary compensation against the State for fundamental-rights violations, on a more relaxed evidentiary standard than the ordinary civil suit and through a more accessible writ procedure. It was, in Chandrima Das,¹⁰ explicitly described as parallel to and not displacing the ordinary private-law tort action. The framework presupposes a State defendant. It presupposes the public-law character of the obligation. It does not extend, and was never designed to extend, to a wholly private defendant against whom no statutory tort or contract or property claim is alleged. Kaushal Kishor announces a duty owed by private actors to other private actors under Articles 19 and 21. It does not say how that duty is to be enforced. The constitutional-tort framework cannot be transposed mechanically because the framework is built on State defendancy, and Balganesh's deeper criticism is that even where transposed against State defendants the framework has eroded the analytical basis of Indian private law without replacing it. To extend it to private defendants would compound the problem.

The third is a safe-harbour analogue to Section 79 of the Information Technology Act.⁸ Section 79 carves out a defence for intermediaries in respect of third-party content, subject to due diligence and notice-takedown obligations. The provision presupposes a vertical reading of free speech: the State regulates the intermediary's liability under ordinary law, and the constitutional question is whether the State's regulation is too restrictive. After Kaushal Kishor, the question is the reverse: a third party whose Article 19(1)(a) right is impaired by a platform's takedown can, on the principle, proceed directly against the platform under Article 19. There is no Section 79 in this picture. There is no due-diligence shield. There is no notice mechanism. There is no statutory immunity for good-faith content moderation. The intermediaries currently shielded by Section 79 are, on the post-2023 logic, constitutional defendants in any speech-takedown case. The legislation has not been amended to reflect this. The courts have not engaged with it. The settlement that Section 79 codified has been doctrinally pulled out from under it, and nobody has noticed.

The state-action doctrine has been bypassed, not overruled

This is the leg of the argument I want to land hardest on. Kaushal Kishor did not overrule Shamdasani; it did not cite Shamdasani. It did not overrule Zoroastrian Cooperative; it did not cite Zoroastrian Cooperative. It did not overrule P.D. Shamdasani v Central Bank of India; it did not even engage with the case. It did not say that Article 12 has been redefined; it left the Article 12 case law on the books. What it did was hold that Articles 19 and 21 reach private actors, while leaving in place every piece of doctrine premised on the proposition that they do not. The result is a tangle. The Article 12 case law continues to ask, as if it mattered, whether the BCCI or the Indian Olympic Association or a private university is 'State'. The answer no longer matters for the citizen who wants to enforce Article 19 or Article 21 against them, because those rights now reach private actors directly. But the answer continues to matter for the rights addressed to 'the State' in the text — Article 14, Article 15(1), Article 16 — which Kaushal Kishor did not touch. Indian constitutional law is now operating two doctrines side by side: a State-action doctrine for the equality rights, no State-action requirement for Articles 19 and 21. The seam between them is unmarked. The case law has not started running into the seam yet, but it will.

The bypass, rather than overrule, has consequences. An overrule of Shamdasani would have required the majority to address the textual differentiation in Part III — why some rights are addressed to 'the State' and others are not. An overrule of Zoroastrian Cooperative would have required the majority to address whether Article 13 has now displaced the freedom-of-contract principle that informed the 2005 holding, and what the new principle is. An overrule of the Article 12 line would have required the majority to say what the new test of constitutional defendancy is. None of this work has been done. The doctrines remain on the books, half-alive, and the majority's holding sits over them like a ceiling that has been raised without the supporting walls being checked.

The counter-argument: maybe nothing changed

The strongest reply to all this is that I am taking the majority's holding too seriously. On this view, Kaushal Kishor was a free-speech case in which the majority answered an over-broad reference too breezily; the holding on horizontal application is obiter to the actual dispute; subsequent benches will narrow it; the doctrinal architecture will return to something like the pre-2023 settlement; the academic anxiety I am voicing is misplaced.

I take this seriously. It is the response a careful constitutional lawyer would offer, and it is consistent with how Indian courts have, in the past, walked back maximalist Constitution Bench holdings (the 'basic structure' line itself is full of bench-walking-back). The majority's reasoning is so under-developed that a future bench could plausibly read the holding as confined to the narrow context the reference involved — a public functionary's intemperate speech, in respect of which the State's protective duty is anyway engaged. The horizontal-rights paragraphs could be characterised as obiter; the seventy-year settlement could be reinstated as the operative doctrine.

This is plausible but it is also unsatisfactory, for two reasons. First, the reference itself was framed in general terms and answered in general terms. To treat the holding as obiter on the horizontal-application question is to refuse to read what a Constitution Bench said it was deciding. There is institutional cost to that move; benches that disregard reference answers on the ground that they were over-broad invite the same disregard for their own holdings. Second, even if a future bench does narrow Kaushal Kishor, the period of doctrinal limbo we are in matters. Lower courts will be asked to apply Articles 19 and 21 against private actors. Some will; some will not; the rate of success will depend on bench preferences and litigant resources. The doctrinal cost of an unaddressed Constitution Bench holding is real, even if the holding is later confined. The settlement that Kaushal Kishor disturbed cannot be restored by silence. It can only be restored by a successor bench that explicitly addresses the reference answer and explains what survives. Until that happens, the doctrine is doing the work the majority left undone, in the dark.

What survives, what does not, what should be built

If the holding is taken seriously, four propositions follow.

First, the State-action doctrine survives for the equality and public-employment rights — Article 14, Article 15(1), Article 16, Article 17 (untouchability) and a few others. It does not survive for Articles 19 and 21. The Article 12 jurisprudence built around RD Shetty, Ajay Hasia and Pradeep Kumar Biswas¹¹ continues to do work for the first set of rights and is irrelevant for the second.

Second, the indirect-horizontal-effect machinery — protective duties under Vishaka, constitutional torts under Chandrima Das,¹⁰ the Article 21 expansions in Consumer Education and Research Centre⁶ and Mohini Jain¹² — remains good law and remains the principal route by which private-actor reach is operationalised in practice. The direct-horizontal route the majority opened in 2023 has no procedural address. Until Parliament builds one, the indirect machinery is what citizens will actually use.

Third, Zoroastrian Cooperative has been doctrinally undermined but not formally overruled. A private housing society that refuses admission to a non-member of a religious community can now, on the principle, be sued under Article 19(1)(e) — provided a forum exists. Zoroastrian Cooperative's holding that 'Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit' is incompatible with the 2023 majority's holding, but the cases have not yet collided in a litigation that forces the choice. When they do, one of them will have to go.

Fourth, Parliament has work to do that the Court left it. Section 79 of the Information Technology Act needs to be re-examined against a horizontalised Article 19(1)(a). A general-purpose constitutional-tort statute, of the kind Ireland has and the United Kingdom does not, would settle the procedural address problem for private-actor rights claims. A safe-harbour regime for employers, educational institutions, and platforms would settle the litigation-floodgates problem the majority did not address. None of this is on the legislative horizon. None of it can be built by the Court alone.

This is what is meant by the claim that the state-action doctrine has died quietly. It has not been buried. The funeral has not been held. The body of doctrine that Articles 19 and 21 used to address only the State sits in the law reports unchanged, and a four-paragraph Constitution Bench reasoning sits over it, declaring those rights now reach private actors. The bypass is the achievement of the 2023 majority. The cost of the bypass is that the rights now reach further on paper than any of the available procedures, statutes, and remedial frameworks can carry them in practice. The doctrine has been moved without the country being moved with it, and the gap between what fundamental rights are said to do and what they can actually do has grown to the point where the gap is the doctrine. That is the inheritance Kaushal Kishor has left, and that is what the next Constitution Bench will have to face when it stops treating the 2023 holding as a thing that did not quite happen.

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