Book Review; Horizontal Rights - Institutional Approach

The book "Horizontal Rights - Institutional Approach" by Gautam Bhatia (Hart Publishing (24 August 2023)) is thoroughly reviewed in this article. The book begins by contextualizing the shift from traditional vertical approaches in constitutional law, emphasizing how various jurisdictions are broadening the scope of bills of rights to include horizontal rights. This shift involves constitutionalizing rights within private spheres, as seen in civil rights laws. 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...

Book Review; Horizontal Rights - Institutional Approach

Dr.Prema E & Ragul OV

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