Book Review; Horizontal Rights - Institutional Approach

Bhatia's analysis of the Civil Rights Cases (1883) illustrates the US Supreme Court's narrow interpretation of the Thirteenth and Fourteenth Amendments. The Court invalidated the Civil Rights Act of 1875, emphasizing state action over private conduct. Justice Harlan's dissent highlighted an institutional view of rights, challenging the public/private divide in constitutionalism. The state action doctrine, which emerged from these cases, underscores the necessity of state involvement to trigger constitutional protections.

Legal precedents like Flagg Bros Inc v Brooks (1978) further illuminate the role of sovereignty. Chief Justice Rehnquist's majority opinion differentiated between state and non-state actors in exercising force, reinforcing the state's unique normative authority. The book examines this philosophical understanding of rights, influenced by social contract theorists and later thinkers like Foucault, who critiqued the persistence of sovereign power in modern governance.

Bhatia addresses the inadequacy of non-constitutional laws in protecting against private power, a concern echoed by scholars like Erwin Chemerinsky. The book discusses how the vertical approach limits the government's role in adjusting social rights, focusing more on protection from state actions rather than promoting justice.

In the context of the Indian Constitution, specific provisions directly address injustices by non-state actors, such as Article 15(2) prohibiting discrimination in public places and Article 17 abolishing untouchability. These provisions, unlike in other jurisdictions, categorically proscribe certain acts without reference to state action, reflecting a recognition of community-based injustices.

The book also highlights Ambedkar's vision of horizontal rights, emphasizing institutional power relations beyond the state. The book also explores how courts determine the applicability of bills of rights to private entities based on their relationship with the state. Examples from US and South African jurisprudence illustrate this point, where state control and regulation over private bodies warrant constitutional scrutiny.

Direct and indirect horizontality are discussed, with direct horizontality imposing constitutional obligations on private parties and indirect horizontality addressing situations where the state's involvement is insufficiently scrutinized. The book examines how these concepts are applied in various jurisdictions, highlighting their complexities and challenges.

The concept of the third-party effect, first articulated in the 1958 Lüth judgment by the German Federal Constitutional Court, is fundamental in understanding constitutional principles in private law. The case involved a protest against Veit Harlan, a former Nazi propagandist, and a call for a boycott of his new film. A lower court initially injuncted Lüth from promoting the boycott, but the Federal Constitutional Court overturned this, emphasizing Lüth's constitutional free speech rights. The court established that constitutional values must influence private law, a principle known as the third-party effect.

Louis Henkin's reinterpretation of Shelley v Kraemer parallels the third-party effect, focusing on the judiciary's role in enforcing racially restrictive covenants. Henkin framed the case as a conflict between equal treatment and freedom of contract, highlighting the state's role in property regimes and the need to prioritize constitutional rights.

This perspective suggests constitutional protection is 'gapless,' where the state cannot fully abdicate responsibility, raising concerns about private actors' normative scrutiny. The Court of Justice of the European Union and Ireland's Doctrine of Constitutional Tort exemplify the horizontal application of constitutional rights in discrimination cases and beyond.

In Ireland, the Supreme Court's approach allows enforcement of constitutional rights against private parties when private law remedies are inadequate. The court's abortion cases illustrate the need for a normative framework to guide adjudication of direct horizontality questions. Functional equivalence focuses on the rights bearer's interests, while indirect horizontality emphasizes the context of private relationships and institutional power dynamics.

The Civil Rights Cases and Jones v Alfred H Mayer in the US highlight the institutional nature of discrimination and the systemic issues within private transactions. South Africa's judicial opinions reflect on apartheid's legacy, emphasizing systemic racial inequalities in private transactions and the need to restructure institutions.

In India, the Supreme Court expanded anti-discrimination provisions to economic transactions in Indian Medical Association v Union of India, drawing from Constituent Assembly Debates and BR Ambedkar's clarifications. This interpretation addresses systemic discrimination and aims for substantive social justice. The institutional approach in India faces challenges, particularly from dominant groups and judicial enforcement limitations, as seen in cases like Indian Young Lawyers' Association v State of Kerala.

The PUDR v Union of India case addresses labor law violations through fundamental rights, emphasizing the wide scope of Article 23 to protect individuals from forced labor by both state and private actors. The court's interpretation underscores economic circumstances in determining voluntariness in labor agreements.

Comparing the Indian and German courts' approaches reveals both recognize market conditions that subordinate individuals institutionally. However, the Indian court, under direct horizontality, can enforce rights like minimum wage, while the German court is limited to contractual remedies.

Grimm's concept of "private terms of rule" and Elizabeth Anderson's work highlight the normative significance of state-individual relationships, challenging assumptions about applying horizontal rights only to identifiable monopolies. The institutional approach plays a crucial role in interpreting private law, guiding courts in aligning legislation with its principles, as seen in Texas Department of Housing and Community Affairs v Inclusive Communities Project.

The author argues that when gaps exist in existing law, the institutional approach justifies extending legislative rights protections. This is evident in cases like IMA and PUDR, where the Indian Supreme Court applied constitutional provisions to private relationships lacking legislative coverage. India's single written constitution and explicit horizontal rights provisions illustrate this approach well. However, other jurisdictions face more complexity in interpreting open-ended horizontal rights or the absence of such provisions.

Labor law has traditionally protected workers' rights against powerful employers through methods like "collective laissez faire," which strengthened trade unions' bargaining power. For example, the Canadian Supreme Court upheld the freedom of association clause in the Canadian Charter, protecting collective bargaining rights and preventing legislative interference. Similar constitutional provisions exist in other countries like South Africa, where the right to fair labor practices is enshrined in the constitution and applied horizontally to private relationships.

Various countries, including France, Greece, Italy, Portugal, Spain, and South Africa, incorporate labor rights into their constitutions, allowing judicial interpretation to define their scope. In South Africa, Section 23 of the Constitution guarantees the right to strike and protection against unfair labor practices, extending these rights horizontally through Section 8. This framework complements existing labor laws and raises questions about the horizontal application of these rights, which the institutional model addresses.

The concept of 'workplace constitutionalism' regulates enterprise governance akin to political governance, setting employment terms, limiting managerial discretion, and providing redress and accountability avenues. Recognizing the employer's significant authority over workers underscores the need for robust labor protections rooted in constitutional principles. For instance, platforms like Uber exert significant control over drivers through algorithms, dictating pay rates and managing the labor process, challenging traditional labor law paradigms.

In platform work, app-mediated control and ratings systems perpetuate power, granting privileged access and disciplining workers. This centralized control and ownership of the app mirror traditional capital dominance, placing workers at an informational disadvantage. However, not all platform work fits this paradigm, as some platforms merely facilitate independent contracts without exerting institutional power.

The institutional approach distinguishes varying rights within the labor market, ensuring labor rights are enforced according to each situation's dynamics. This framework supports adjudication across different constitutional contexts regarding labor rights. It suggests that where direct horizontal rights exist, workers can invoke them, and where vertical constitutional rights are present, they can be applied horizontally. This approach informs which parties are entitled to statutory protections.

Recent legal cases demonstrate the institutional approach's impact on labor law outcomes. For instance, in the Deliveroo case, the UK High Court's ruling deprived workers of union rights based on a substitution clause, but the institutional approach argues that such clauses shouldn't determine employment status. Similarly, in Uber v Aslam and Ors, UK courts ruled that Uber drivers were workers based on institutional power indicators. This reasoning aligns with the institutional approach, emphasizing structural power imbalances.

In domestic relationships, feminist scholarship challenges the view of the family as a zone free from state interference, advocating for justice within familial relationships. The institutional approach explores applying horizontal rights within cis-heterosexual domestic relationships, particularly regarding unpaid domestic labor. It identifies unequal power dynamics, rights violations, and remedies in vested property rights post-separation, facilitating exits from oppressive dynamics.

The approach acknowledges it can't solve all injustices within family relations, especially concerning equitable divorce rules. However, it aims to mitigate rights-violating consequences from power imbalances within domestic relationships, complementing family-centered rights enforceable against the state. Recognizing unpaid domestic labor through property rights acknowledges this work's value and enables spouses, particularly women, to assert their rights and exit oppressive situations.

Examining the Property (Relationships) Act 1976 in New Zealand and cases in India, Colombia, and Kenya, the institutional approach highlights the importance of recognizing non-monetary contributions within marriages. This perspective informs judicial decisions and legislative developments, addressing inequalities within domestic relationships. Recent constitutional jurisprudence from Kenya, South Africa, and Jamaica underscores the institutional approach's practical utility in contemporary constitutional challenges.

The critique of the state action doctrine and indirect horizontality highlights the need for a bounded model of horizontality that addresses their limitations. The state action doctrine centers on unitary sovereignty, while indirect horizontality focuses on abstract freedom and individual responsibility. However, both fail to consider the relational context structuring private relationships, complicating their application.

In South Africa, the Constitutional Court's judgments, like Du Plessis v De Klerk, illustrate the necessity of a principled approach to horizontal rights within the apartheid context. Section 8(2) of the South African Constitution was a step towards interpretive bounded horizontality, yet the judiciary has not developed a clear framework. Cases like Khumalo v Holomisa and Governing Body of the Juma Musjid Primary School v Essay NO show the courts relying on vague criteria without embracing a comprehensive theory. The Constitutional Court in Daniels v Scribante tried to detail factors influencing horizontal rights, but the guidance remained insufficient.

The Constitutional Court's examination of direct horizontality in King v De Jager reveals an evolving understanding of rights in private relationships. Victor AJ's opinion suggested addressing inequality by applying horizontal rights but emphasized existing legislation's role. Similarly, Kenya's 2010 Constitution explicitly applies rights to non-state actors, but courts, like in Mwangi Stephen Mureithi v Hon'ble Daniel Toroitch Arap Moi, have not fully developed an institutional approach, often resorting to case-by-case analysis without a comprehensive theory.

The Maurice Tomlinson v TVJ and Ors case in Jamaica exemplifies the complexities of horizontal rights application. Tomlinson's attempt to air an LGBT rights advertisement clashed with broadcasters' editorial freedom. The Court of Appeal's judgment highlighted the tension between individual rights and private entities' autonomy, relying on default verticality and proportionality tests, thus reflecting the difficulty in balancing constitutional protections with private rights.

The institutional approach, focusing on relational context and power dynamics, offers a robust framework for adjudicating horizontal constitutional rights claims. It is crucial for addressing systemic inequalities in private relationships and guiding contemporary controversies involving freedom of speech and private parties. The author's analysis underscores the relevance and applicability of the institutional approach in comparative constitutional jurisprudence, providing practical insights for legal practitioners, policymakers, and scholars. This work significantly advances the discourse on constitutionalism and private power dynamics, offering a solution for principled adjudication of horizontal rights claims.

References

Gautam Bhatia, "Horizontal Rights - Institutional Approach", Hart Publishing (2023).

(Hart Publishing (24 August 2023))

ISBN-10 ‏ : ‎ 1509967613

ISBN-13 ‏ : ‎ 978-1509967612

Dr. E. Prema is an Associate Professor (Senior) and Assistant Dean at VIT School of Law, VIT Chennai,Tamil Nadu

Ragul O.V. is an Advocate Practicing at Delhi.