Judicial interpretations has also acknowledged this changing reality. While fundamental rights have traditionally operated vertically, courts have recognised that in appropriate circumstances, constitutional obligation may arise between two private parties. The recent landmark judgment by the Delhi High Court, recognised that a private news channel was carrying out a 'public function'. Therefore, it will be subject to constitutional scrutiny while addressing an alleged breach of a sexual assault survivor's right to privacy. Therefore, under certain conditions private organizations with substantial public authority will be subject to constitutional duties. But this development also poses a crucial question: where should the boundary be set?

The Evolution of Horizontal Fundamental Rights in India

The Constitution was never designed merely to regulate institutions. Its deeper purpose is to regulate the exercise of power wherever that power becomes capable of threatening fundamental rights. Consequently, most fundamental rights under Part III were designed to operate vertically which means that they were enforceable by individuals against the State and its instrumentalities. This position is reflected in Article 12, which defines the term 'State' for the purposes of Part III and forms the basis for determining whether a constitutional remedy can be sought against a particular entity. Over the period of time, Courts have recognised certain factors such as deep and pervasive governmental control, public funding, functions performed by the body and its connection to the State to determine whether a body qualifies as 'State' under Article 12 . If a private entity does not satisfy these tests, fundamental rights are generally not enforceable against it.

The Constitution itself recognises that certain forms of private conduct can be serious enough to warrant constitutional regulation. Articles 15(2), 17 and 23 expressly impose obligations on private individuals by prohibiting discrimination in access to public spaces, abolishing untouchability and banning trafficking and forced labour. These provisions demonstrate that the framers did not intend the Constitution to operate exclusively against the State in every situation. Rather, where private action threatens fundamental constitutional values, the Constitution is capable of imposing direct obligations on non-State actors. While recognising privacy as a fundamental right under Article 21, the Supreme Court observed that threats to privacy do not arise only from the State but also from non-State actors, particularly in an increasingly digital society. The Court emphasised the need for a legal framework capable of protecting individuals from such private intrusions, signalling that constitutional values cannot remain indifferent to private concentrations of power. The recognition of horizontal rights did not end there. The Delhi HC held that the channel was performing a public function and was therefore amenable to writ jurisdiction subjected to constitutional scrutiny under Article 226. This highlights that private entities/actors performing public function under appropriate circumstances can be subject to constitutional scrutiny because their action can substantially affect the exercise of fundamental rights.

Constitutionalising Private Power: Rethinking the Public Function Doctrine

The traditional distinction between public and private actors is no longer sufficient. The main aim of the Constitution-makers was to prevent the misuse of power while drafting the fundamental rights under Part III. However, power is no longer exercised exclusively by the State itself in today's society. Private media organisations, digital platforms and technology companies significantly influence an individual's privacy, dignity and freedom of expression. If constitutional scrutiny continues to depend solely on the identity of the actor, it risks overlooking situations where private entities are capable of causing comparable constitutional harm. The focus, therefore, must gradually shift from who exercises power to how that power affects constitutional rights. The recognition of this shift does not mean that every private actor or entity should be subject to constitutional obligations instead, it calls distinction between ordinary private activity and exercise of public power. The public function doctrine rather than asking whether an entity is publicly owned or falls within Article 12, it asks whether the function performed is so closely connected with public life that constitutional standards ought to govern its exercise. This functional approach ensures that constitutional accountability is linked to the nature of the power exercised, rather than the legal status of the actor.

The Delhi HC did not treat the media as the State instead, it recognised that the exercise of certain functions by private entities that may directly affect constitutionally protected interests such as privacy and dignity. The significance of the judgment lies not in expanding Article 12, but in acknowledging that some forms of private power can have constitutional consequences. The media has long relied on Article 19(1)(a) to claim constitutional protection for its role in informing citizens and facilitating public debate. If constitutional protection is justified because of the public importance of that role, it is equally reasonable to expect that its exercise remains subject to constitutional limits where it infringes the rights of others. Constitutional freedoms cannot operate as a one-way entitlement. Rights that protect the exercise of public functions must also carry a corresponding responsibility to respect the constitutional rights of those affected.

The recognition of constitutional obligations for private actors cannot be without boundaries. If every dispute involving private parties is treated as a constitutional issue, the distinction between constitutional law and private law would gradually disappear. More importantly, Article 226 would begin to function as a remedy for disputes that are adequately addressed through ordinary civil or criminal proceedings. That was never the purpose of the writ jurisdiction. Constitutional scrutiny should therefore remain confined to cases where a private entity performs a public function or exercises a level of power that has a real and substantial impact on constitutional rights. Other This concern is not unique to India. Other jurisdictions have also recognised that constitutional rights cannot become ineffective simply because the violation originates from a private actor. Through the doctrine of Drittwirkung, German Courts have recognised that fundamental rights can shape relationships between private parties^[1]. The Constitution of South Africa adopts an express model of horizontal application, allowing certain rights to be enforced against private actors^[2]. On the other hand, the United Kingdom extends human rights obligations to private bodies performing public functions^[3]. Although each system has evolved differently, they all recognise a common concern that constitutional rights should not lose their meaning simply because the violation comes from a private actor instead of the State.

The Delhi High Court's reasoning is therefore likely to have implications beyond the media. Similar questions may soon arise in relation to social media platforms, artificial intelligence systems, search engines and other private entities that increasingly shape public life. These actors influence what people see, say and access every day. As the role of private actor continues to grow, courts will be required to decide when an action of private actor attracts constitutional scrutiny. The difficult task is to mark a clear line between the exercise of public power and ordinary private activity. An overly narrow approach may leave individuals without an effective constitutional remedy, while an overly broad one risks converting every private dispute into a constitutional issue. The public function doctrine offers the right way to strike the balance. It neither seeks to expand the definition of the State nor leaves the exercise of private power out of constitutional scrutiny.

Practical Implications of Horizontal Rights

Accepting that constitutional rights may, in appropriate cases, operate between private parties changes the way constitutional courts approach rights-based disputes. Earlier, the primary question was whether the State had violated a fundamental right. That enquiry is no longer sufficient in every case. Courts may now have to decide disputes where both parties rely on constitutional protections. The task is no longer to adjudicate State's action alone instead, Courts must decide how one constitutional right is balanced against the other even though the dispute is between the private parties. The Delhi HC verdict illustrates the question: whether the publication of vicitim's family and personal details served a public purpose or whether it crossed a line by unnecessary intrusion? Courts are therefore required to balance constitutional rights instead of treating one as inherently superior.

The importance of this approach extends beyond media organisations. Private actors increasingly influence the enjoyment of constitutional rights in everyday life. Social media platforms decide what content remains visible, search engines shape access to information, and artificial intelligence systems are beginning to influence decisions relating to employment, finance and public services. Although these functions are carried out by private entities, their decisions can have consequences that affect rights in a very real way. Similar constitutional questions are therefore likely to arise in many other contexts. This also means that courts will increasingly be asked to decide which forms of private power deserve constitutional scrutiny. That task is not always straightforward. Many private organisations perform functions that affect the public in some way, but not all of them should attract constitutional obligations. A large business may influence thousands of people without performing a public function in the constitutional sense. On the other hand, a privately owned body may still perform functions to have a direct bearing on constitutional rights. In such cases, constitutional scrutiny may be justified despite the absence of State control.

The harder question is where this line should be drawn. If courts interpret the doctrine too narrowly, powerful private actors may escape constitutional scrutiny even where their actions seriously affect fundamental rights of the citizens. If they interpret it too broadly, almost every dispute involving a private party could be presented as a constitutional issue. Neither approach is desirable. Constitutional law cannot ignore significant exercises of private power, but neither can it become a substitute for ordinary civil or criminal remedies. These concerns do not weaken the case for horizontal rights. They simply show that the doctrine cannot develop without clear principles. As more disputes involving private actors reach constitutional courts, the need for a consistent approach will become increasingly important. The next stage in the development of horizontal rights, therefore, lies not in expanding the doctrine further, but in defining the circumstances in which constitutional accountability should arise.

A Principled Framework for Constitutional Accountability

The public function doctrine is suitable to hold private actors accountable under the Constitution for breach of fundamental rights, but for the doctrine to work well, the Courts need a clear way of deciding when and how it should be applied. If this is left entirely to judicial discretion, similar cases may be decided differently. At the same time, applying the doctrine too widely would bring almost every private dispute within constitutional law. What is needed, therefore, is a balanced approach that protects fundamental rights without disturbing the boundary between constitutional law and private law. The starting point should always be the function performed by the private entity. The question should not be whether the body is owned by the government or by private individuals. Instead, courts should ask whether the function it performs has a close connection with public life or directly affects the exercise of fundamental rights. A news organisation that shapes public opinion, a digital platform that controls access to speech, or a private body providing an essential public service stands on a different footing from an ordinary business selling goods or services. What matters is the role the entity plays, not who owns it.

The function performed, however, is only one part of the enquiry. Courts should also look at the extent of the power exercised by the private actor and the nature of the harm caused. A company should not become subject to constitutional scrutiny simply because it is large or commercially successful. The more relevant question is whether its decisions have a real impact on rights such as privacy, dignity, equality or freedom of expression. Equally, not every legal wrong should become a constitutional issue. Constitutional remedies should remain available only where there is a serious interference with a fundamental right. Ordinary contractual or commercial disputes will continue to be resolved by civil law remedies. Courts should also consider whether existing legal remedies are sufficient to deal with the dispute or not. Replacing ordinary civil or criminal proceedings was never the intention of constitutional remedy. This ensures that Article 226 continues to be used for exceptional cases instead of becoming the first remedy in every dispute involving a private actor. None of these factors should be applied in isolation. A private body may perform a public function but exercise only limited power. Another may have considerable influence but cause no serious interference with constitutional rights. This framework does not seek to expand constitutional jurisdiction. Rather, it offers a structured basis for distinguishing those cases that genuinely warrant constitutional scrutiny from those that remain within the domain of ordinary private law.

The debate on horizontal rights is, at its core, a debate about the changing nature of constitutional power. When the Constitution was framed, the State was rightly seen as the principal source of threats to individual liberty. Today, however, private entities influence public discourse, control access to information, process personal data and increasingly shape the exercise of fundamental rights. A constitutional framework that responds only to governmental action risks overlooking these new centres of power. The gradual recognition of constitutional obligations for certain private actors is therefore not a departure from constitutional principles, but an attempt to ensure that those principles remain meaningful in changing social and technological realities. At the same time, this development calls for judicial restraint as much as constitutional innovation. The purpose of horizontal rights is not to constitutionalise every private dispute or to erase the distinction between public and private law. It is to ensure that constitutional remedies remain available where private power assumes a genuinely public character and has the capacity to substantially affect fundamental rights.

1. Lüth Case (BVerfGE 7, 198 (1958)) ↑

2. Constitution of the Republic of South Africa, 1996, s 8. ↑

3. Human Rights Act 1998 (UK), s 6(3)(b). ↑

   Author is a third-year Law student studying at Dr. Ram Manohar Lohiya National Law University, Lucknow. Views are personal.