Globalisation is a model ofmarket economy which primarily entails the removalof national barriers to trade and investment In economic terms, it is theopening up of the markets tooperate under market forces, where the State has verylittle role to play It is associated with the contemporary phenomena ofprivatisation, liberalisation, marketisation, the expanded provision of incentivesfor entrepreneurial behaviour, structuraladjustment programmes, etc.

Liberalisationisthe process of relaxation of governmentcontrol It refers to theremoval of government restriction usually in the area of social and economic policies.

When the government liberalises trade, it removes tariff, subsidies, and other restrictionson the flow of goods, services., and capital between countries It is often used in tandemwith another term—deregulation Deregulation is the removal of State restrictions onboth domestic and international business In principle, the two are distinct (in thatliberalised markets can still be subject togovernment regulations—for example, toprotect the consumers, but in practice bothterms are generally used to refer to thefreeing of markets from State intervention.

The rationale behind liberalisation is toincrease foreign investment, increase consumption, reducecontrol over price, andreduce dependence on external commercial borrowings.

Privatisation means the transfer ofownership and/or management of an enterprise from the public sector to the private sector It results intheintroduction/promotion of competition in a traditionally monopolised industry toencourage efficiency, quality, and innovation in the delivery of goods and services.

Privatisation can take place in various ways like contracting out, joint ventures, divestiture, etc Divestiture (or disinvestment refers to the dilution of governmentshareholding in a public sector entity the key difference between privatisation anddisinvestment is that the former results in a change in ownership (governmentnecessarily owns less than 50 per centstake and therefore change in, whereas, thelatter results indilution of ownership (while government stake is reduced, it maystill own more than 50 per cent stake and therefore, it may or may not beaccompanied by a change in management Di sinvestment aims at lessening the fiscalburden on the governmentbecause of the inefficiency of the concerned public sectorundertaking Moreover, it aims at providing financial aid Privatisation isencouraged tomake the best possible use of the country”s resources as well as toincrease the operational and dynamic efficiency of the concerned public sectorundertaking.

While liberalisation results in nonintervention and retreat of the State, marketisation, that is, exposure of an industry or service to market forces and increased competition viaprivatisation increases the burden on the State to regulate the market.

The adventof globalisation changed the intellectual comprehension ofworldpolitics, economy, and power equations The concept of statehood has undergone a paradigmshift due to globalisation The emergence ofprivate and publicprivateparticipation in the sociowelfare sectors of the economyhas altered the relationshipbetween individual rights and governmentalpower The benefits of globalisation, however, have been shared unequally between countries, regions, and social classes inindividual nations Developing countries have borne a disproportionately high burdenof the negative pressures ofglobalisation like financia l volatility, job and incomeinsecurity, socialdisintegration, and other forms of insecurity, for example, health, environmental, personal, and political.

The global transformations of the worldeconomy have profoundly changed the parameters ofsocial development.

In India, the adoption of liberalisation, privatisation, and globalisation (LPG took place under the New Economic Policy of 1991 (NEP and the messages itsignaled resulted in the rise of private capital as a powerful interest group After theunfolding of the capitalistic economy over the past few decades, the change in therelationship between the State and privat e capital is apparent The State can nolonger afford to go against the interests of private capital if it wants to promoteeconomic growth and instead needs to ensure conditionsfor the smooth functioningof the private sector as it isthe main motor of capital accumulation..

Thus, the practices underlying LPG policies have transformed the role of the State from a “service provider” to that of a “service facilitator”.

The welfare functions of the Statehave now fallen into private hands Admittedly, the Indian State has not entirelyreceded and deregulation has occurred in some, but not all areas of the economy.

The decades following economic liberalisation, nevertheless, demonstrate theincreasing importance of nonstate actors in the social, economic, and politicalsphere.

This has posed serious questions about the efficacy of fundamental rights.

guaranteed under the ConstitutionThe underlying premise is that with theincreasing role of private actors and decreasing role of the State, fundamental rightswould be violated more by private enterprises than by the State In the liberalisedworld where private players play a critical role, strictadherence to the verticality ofthe State without regard to practical considerations is no longer adequate to-.

safeguard the fundamental freedoms enjoyed bythe people.

Against this backdrop, the Indian judiciary has had to dealwith the legalchallenges thrown up bythese changing socioeconomic conditionsIt has had tomanage these processes and threats so as to enhance the benefits of the marketeconomy while mitigating its negative effects upon people and securing their basicneeds and rights Courts have had to examine whether the Indian Constitutionprovides any mechanism to meet the challenges of globalisation, what the role of the State in regulating the market economy should be under our constitutional setup, and most importantly, how various constitutional provisions, particularly thoseguaranteeing fundamental rights and social and economic justice, should beinterpreted in the light of the growing pressures of globalisation.

A nuanced understanding of the working of the Indian Constitution in the postliberalisation era reveals the challenges that the judiciary has faced in reviewing LPG policies of successive governments in view of the constitutional scheme of a socialistand welfare Indian StateA cursory review of the Preamble and the Directive Principles of State Policy (DPSP makes it abundantlyclear that our Constitutioncontainsan explicit commitment to socialism⁴ and imposes an obligation on the

State to promote the welfare of the people.

In the era post…NEP, the State isgradually losing effective control over the economy When the State increasinglyadopts measures of deregulation, disinvestment, and denationalisation it not onlyloses its regulatory powers but its redistributionist capacity⁶ If theredistributionist capacityis curtailed, can it carry out its constitutionally ordainedwelfare functions?

While neither the NEP nor the LPG policies it intendedtopromote are per se unconstitutional, it seemingly contradicts the socialist andwelfare agendacontained inour Constitution Thissection reviews how the courtsin India reviewed challenges to the government”sLPG policies in the postliberalisation era in the light of the constitutional scheme.

In 1978, the landmark decision of the Supreme Court in⁸ set in motion an expanded interpretation of fundamental rightsunder Articles 14, 19, and 21. Reading Ar ticle 21 together with Article 14, the Court created a new standard of nonarbitrariness review whereby it equated the concept of “arbitrariness” with “inequality”..

The decision thus created higher levels ofjudicial scrutiny for laws or policies thatrestrict personal liberty and fundamentalrights.

However, the Court was selective inwielding thisexpanded framework In the immediate aftermath of the Emergency, the judiciary recognised a broad array offundamental rightsand increasingly expanded its assertiveness in challenging thecentral government in key domains, including judicial appointments, corruption, and environmental governance (perhaps motived bya desire for institutionalredemption and restoration of legitimacylost due to the Court bowing down to the Emergency regime.

At the same time, it signaled a lower and more limitedas well Maneka Gandhi vUnion of India

Inthe Court was called upon toadjudicate a challenge to the adoption of the National Telecom Policy, whereby thegovernment shifted toward privatisationof the industry In rejecting argumentschallenging the merits of the underlying policies, the Court held that it could notquestionthe merits of the policy and that the proper place for substantive challengeswas the Parliament and the political process, not the judicial one It held that reviewunder Article 14”s nonarbitrariness standard must be limited to determiningwhether suchdecisions are (a made inbad faith, (b based on irrational or irrelevantconsiderations, or (c made without following the prescribedprocedures requiredunder a statute (illegality.

By applying this limited scope of scrutiny, the Courtupheld the telecom policyas legal and consistent withthe IndianTelegraph Act 1885, and also upheld it on the ground of reasonableness.

Inthe Court upheld thegovernment”s disinvestment in and sale of the Bharat Aluminum Corporation to a private company The Court heldthat economic policies must be reviewedunder a highly deferential rational basis scrutiny, and that the review shouldbe limited towhether policy decisions are absolutelycapricious, arbitrary, unreasonable, orviolative of constitutional or statutory provisions.

It observed, Process of disinvestment is a policy decision involving complex economic factors The Courts have consistently refrained from interfering with economic decisions as it hasbeen recognisedthat economic expediencieslack adjudicative disposition and unlessthe economic decision, based on economicexpediencies, is demonstrated to be soviolative of constitutional or legal limits onpower or so abhorrent to reason, that thecourts would decline to interfere In matters relating toeconomic issues, the Challenges to Fundamental Rightsƒ RK. Garg vUnion of India, Delhi Science Forum vUnion of India, BALCO Employees Union vUnion of India,

Government has, while taking a decision, rightto “trial and error” as long as both trialand error are bona fide and within limits ofauthorityƒ In the case of a policy decisionon economic matters, the courts shouldbe very circumspect in conducting anyenquiry or investigation and must be mostreluctant to impugn the judgment of theexperts who may have arrived at a conclusionunless the Court is satisfied that there isillegality in the decision itself.

Inthe Court struck downthe privatisation of governmentoil companies through disinvestment intwo of India”s major petroleum companies not on the meritsofthe disinvestment policy as such, butbecause the sale was procedurally flawed In another recent instance related to thedisinvestment of the Vizag Steel Plant, the High Court of Andhra Pradesh stated that it was aware of the limitations imposed unde r the constitutionalscheme, particularlyin The Court admitted the writ petition for the limited purpose of examining whetherthe decisionmaking process to arrive at the “in principle” decision of 100 per centdisinvestment was a bonafide one and had been undertaken in a just, fair, and reasonablemanner It categorically stated that the Court was not inclined to address the correctnessor otherwise of the disinvestment decision.

The Court”s jurisprudence reflects a biasthat sometimes favours corporate interestsand rights in the adjudicative process In Structurals Ltd.,the Court heldthat the statusof employees of a governmentcompany or “other authority” under Article 12 of the Constitution does not preventthe government from disinvesting, nor doesit make the consent of the employees a necessary preconditionfor disinvestment In enterprises under Articles 14 and 16. The Cour t held that the policy of disinvestmentcannot be faulted if, as a result thereof, the employeeslose their rightsor protectionunder Articles 14 and 16 of the Constitution In other words, the existence ofrightsunder Articles 14 and 16 of the Constitutioncannot have the effect of vetoing the Centre for Public Interest Litigation vUnion of India, BALCO, with regard to the judicial review of disinvestment in public undertakings Southern Structurals Staff Union vSouthern BALCO, the Supreme Court reiterated this position while considering the validity of the decision to sella majority stake in a public sector company The principal objection to the sale came from the employees who claimed that they would lose their cons titutionally guarant eed rights against a state entityonce it was transferred to a private company Deferring to executive wisdom-., the Court upheldthe disinvestment decision The Court adopted a restricted approach towards labourrights and held that the employees in the BALCO union did not have a right to a hearing prior to the disinvestment ofgovernmentowned

The decision alsorestrictedthe ability of litigants todeploy public interest litigationchallenges to governmentpolicies by holding thatpublic interest litigation was not meant to be a weapon to challenge the financial oreconomic decisions which are taken by the government in the exercise of itsadministrative power.

As evident from the above cases, in formulating the scope of fundamental rightsin challenges to the government”sdisinvestment decisions, the Court hascircumscribed labour rights by holding that they do not have strong constitutionalrights to challenge government policies and actions It has, at the same time, afforded protection to the rights and interests of private corporations and businessentities under Articles 14, 19, and 21 byinvoking the “levelplaying field” logic.

InIn stark contrast., the Court held., inunequivocal terms, thatthere is no fundamental, legal, or moral right to strike.

In 2020, while upholding the union government”s decision of disinvestment ofits shareholding in Bharat Petroleum Corporation Ltd., the Bombay High Courtdismissed the contention of the petitioner’s that such a decision would adverselyaffect the rights of poor consumers topetroleum and kerosene subsidies, rights of the medium, small, and micro enterprises to compulsorily purchase from them incertain percentage points., rights of war widows and physically handicappedpersons to preference in allotment of petrol pumps, gas agencies, and kerosenedistributorship, and rights of SCs, STs, OBCs, and physically handicapped toreservation in jobs The Court observed that these rights were not fundamentalrights and that it is perfectly legitimate for the State not to make, or withdrawreservations already made.

Significantly, in the 1990s, the judiciaryalso turned its attention to politicalsociety and the state apparatus, seemingly “riddled with corruption and humanrights atrocities on a disturbingly excessive scale”, which jeopardised the rule of law.

The Court expanded its role as ananticorruption institution, policing corruption in the processes of privatisation and liberalisation Building on its prior decisioninthe Court expanded the scope of its review todirectly impugn and challenge government auctionsofpublic resources includingthe 2G Telecom scam and the CoalGate scam-.. The Court scrutinised the auctionprocesses for allocation of both the telecom spectrumand coal blocks to privateentities based on the Article 14 arbitrarinessreview, while also playing an active rolein investigating allegations of corruption.

Its decisions also catalysed the creationand strengthening of independent and autonomous regulatory structures like the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal.

The above decisions suggestthat., rather than allowing fundamental rights under Article 14 and Article 21 to serve as strong checks on government policies andactions, the Court has deployed these rights as structuring principles merely to test Vineet Narain vUnion of India,

Enforcement of Fundamental Rights Against Violations by Private and NonState Actors Shifting Conception of Fundamental Rights

After appraising the Court”s tendency to generally defer to the government in itseconomic policy decisions, this section will review how the courtshave securedfundamental rights in the context of abusiv e actions and behaviou r of private actorsand nonstate entities.

In the early years of Independence, the Supreme Court typically adhered to thegeneralThis was based on the understanding of the definitional provisions of Articles 12 and 13 at the beginning of Part III Article 12 states that unless otherwisespecified, Part III binds the “State”, as therei n defined Article 13 states that “the law” must be consistent with Part III In thewords of the leading constitutional expert, HM. Seervai, “Under Article 13(2 it is state action of a particular kind that isprohibited Individual invasion of individual rights is not, generally speaking, covered by Article 13(2”.

However, over the last three decades, the centralityof the State diminishedsignificantly owing to the retreat of the welfare state and growing private power Theincreasing importance ofnonstate actorsin all spheres of governance rendered strictadherence to the traditional notions of verticality deficient and unsustainable.

Moreover, it was felt that different aspect’s of interpersonal relations between private Challenges to Fundamental Rightsƒ Maneka Gandhi The judiciary has also favoured certain norms and values in its adjudication, including norms of fairness, transparency, and competitiveness, and guarding against corruptionposition that the fundamental righ ts contained in Part III of the Constitution apply only against the government and not against private individuals.

Horizontal Application of Fundamental Rights

Constitutional Courts, therefore, started developing various ways to applyfundamental rights “horizontally”, that is., to apply rights in transactions whereprivate actors are involved in some way These rights can impact and effectivelyregulate private actors even insystems that adhere to the basic verticalposition As a result, the courts tacitly acknowledged the inherent limitations of the dogmaticvision of fundamental rights as negative rights imposing constraints on the State andstarted advocating a positive dutybased approach in order to fulfil the constitutionalvisions of a transformed society.

Courts have generally engaged with the horizontality of fundamental rights andcrafted various kinds of remedies in the following manner: S.

No.

Type of Horizontal Application Respondent Cause of Action 1. Private body brought underthe definition of State under “Article 12” Private actor Private act (reclassified as State act 2. Direct Horizontality Private actor Private act 3. Indirect Horizontality a Affirmative obligationson the State b Application of fundamental rights to privatelaw State Private actor State inaction to protectindividuals from certainkinds of private acts Common law orlegislations made by the State to govern privateconduct Private Body brought under the Definitionof “State” under “Article 12” The Supreme Court has extended the application offundamental rights to privateactors by including many nonstate bodies performing functions of public

Inthe Court was called upon to decide whether thetermination of a contract granting exclusive television rights by the Board of Control for Cricket in India (BCCI violated the rightsof the petitioner under Article 14. Themajority concluded that the BCCI did not fulfil the criteria of being “financially, functionally and administratively dominated by or under the control of the Government” and therefore was not a “State” under Article 12, and dismissed the writpetition However, the dissenting opinion stressed on the “functions performed” by the BCCI and pointed out that meaning of “State” under Article 12 was not confined togovernment control.

As described previously, the concept of State has undergone a drastic change In the words of Justice Mathew inthe State can nolonger be viewed as “a coercive machinery wielding the thunderbolt of authority”. It has instead evolved into a “service corporation”. Thus., there is a need to intensify thefunctional approach to the interpretation of “State”. If the function performed by an entity is of “such public importance and soclosely related to governmentalfunctionsas to be classified as a government agency”,then such entity must be classified as “State” under Article 12 and be subjec t to Part III of the Constitution.

Articles 17, 23, and 24 aside,-. the Court hasalso given direct horizontal effect tosome other fundamental rights in limited instances It is., however, yet to provide a rigorously developed understandin g of the situations under whichdirect horizontality can be extended to other fundamental rights.

Inthe Court horizontally applied Article 15(2 which guarantees that no citizen can be restricted from access to shops, public restaurants, hotels, places of publicentertainment, and places of public resortdedicated to the use of the general public, on grounds only of religion., race, caste, sex, place of birth, or any of them By referring to Constitutional Assemblydebates,the Court held that the word “shops” referred not merelyto a physicalshop, but to any armslength provisionof goods or services in the market.

Extending the logic, the Court held that schools came within the meaning of shopsfor the purposes of Article 15(2 and that consequently, private schools were subjectto the nondiscriminationguarantees under the ConstitutionInthe “right to health” under Article 21 was held to apply against private employers in the contextof theoccupational health hazards caused by the asbestos industry.

In recent times, the Court has alsogiven direct horizontal effect to the right to privacy under Article 21, described in further detail under the section “Recent Developmentsin the Horizontal Application of Fundamental Rights”.

Indian Medical Association vUnion of India, Consumer Education and Research Center vUnion of India, Indirect Horizontality Courts have given indirect horizontal effect to some fundamental rights intwo ways: (a by imposing an affirmative duty on the State to protect individuals from certain actions by private actors; and (b through the application of constitutional rightstoprivate law.

Affirmative Obligations on the StateInthe Court held that the State”s failure to passlegislation on preventing sexual harassment in public and private workplacesamounted to a violation of the petitioner ”s rights under Articles 14, 19, and 21.

Similarly, in the context of the Uphaar Cinema Fire Tragedy that killed 59 people, the Court heldthat by granting compensation in the exercise of its writ jurisdictionfor the established violation of the fundamental rights guaranteed under Article 21 the Court was “fixing the liability for the public wrong on the state which failed in the discharge of its publicduty to protect the fundamental rights of the citizen”. The Court found that the Delhi Vidyut Board had been negligent in its duty to properlyand effectively regulate private property owners which jeopardised public safety andresulted in the devastating fire By failing to protect life and provide safe premises., the Delhi Vidyut Board (apublic undertaking was heldliable for payment ofcompensation.

Courts have also cast a positive dutyon the State to secureconditions where the right to freedom of speech and expression can flourish.

In STamilselvanthe Court issued guidelines as to how State agencies or officials should respondand act in situations where extrajudicialorganisations/individuals threaten the exercise of free speech by individuals.

Insteadof adjudicating the acts of the private actor, the courts decide whether the law that the private actor relies upon to justify itsaction passes muster under Part III of the Constitution.

Challenges to Fundamental Rightsƒ By mandating that the government enact and enforce measures against certain kinds of private conduct, the Court has indirectly secured fundamental freedoms and protected individuals against the abuses ofprivate parties In other words, the Court indirectly fixes the liability on the State for abrogating from its dutyto protect via its failure to regulate private actors Vishaka vState of Rajasthan, vGovernmentof Tamil Nadu, Application of Fundamental Rights to Private Law The Court has engaged with indirect horizontal application of fundamental rights by applying them to interpret provisio ns of private law in accordance with constitutional principles, thereby limiting what private actors can be authorised to do and which of their interests, choi ces, and actions are protected by law.

Article 13 stipulates that the State shall not make any laws that are inconsistent with Part III Given the broad definition of la w under Article 13, one would think that alllaws, including all private, common, and customary laws, are subject to fundamentalrights This understanding seems to find resonance with some of the earlier decisions of the Supreme Court Inandthe Court struck down a “statute” and a “local custom” respectively, which mandated preemption in land sales on the ground of vicinage (there isvicinage if two properties areadjacent to each other, as being violative of the right to equality under Article 15 andthe right to property under Article 19(1f subsequently repealed.

Inthe Supreme Court heldthat thecharging of a capitationfee by private educational institutions violated the right toeducation under Article 21. In holding that it was wholly arbitrary under Article 14 for the State topermit private universitiesto charge a capitation fee in considerationof admissions, the Court indirectly constrained their freedom of contract to chargewhat the market will bear.

Other instances of indirect horizontal applicationinclude the Court”s interpretation of statutes/common law governing private actionsconsistently with fundamental rights Inthe Court interpreted Section 6 of the Hindu Minority and Guardianship Act 1956 (a law governing private action in a manner such that it would not run foul of Article 15(1, which prohibits discrimination on the basis of sex.

Similarly, inthe Court modified the common law ofdefamation, adopting a stricter threshold for the plaintiffs, in order to bring it in linewith Article 19(1a of the Constitution It also referred to Article 21 in order tostrengthen the individual”s right to privacy against other individuals In this case, itis not private action that isdirectly being implicated, but the law that authorisessuch action that is constitutionally suspect.

Bhau Ram vBaijnath Singh Sant Ram vLabh Singh, Mohini Jain vThe State of Karnataka, Githa Hariharan vReserve Bank of India, RRajagopal vThe State of Tamil Nadu,

One significant departure from the above position is reflected inThe Court refused tostrike downthe byelaw of the housing society which prevented the sale of the land to a nonParsi person who claimed that this violated Articles 14 and 15 (discrimination on the basis of religion The Court observed that while the Constitution prohibitedreligious discrimination in State action, Pa rt III did not interfere with the right of a citizen to enter into a contract for their own benefit By holding that fundamentalright provisions of the Constitution are not relevant toall private law relationshipsand agreements, the Court carved out a certain autonomy or separateness for “privatelaw” that ishard to reconcile with Article 13 which does not distinguish betweenstatutory and common law and requires “alllaws” to be consistent with Part III.

In 2020, the High Court of Karnataka ordered the stategovernment to compensate migrant workers (hutment dwellers and rehabilitate themon account of the destruction of their huts in a fire incident The Court held that the state government had failed to uphold the fundamental right under Article 21 of the Constitution by remaining passive for a long time and making no effort totake anyaction against the miscreants.

In another case involving a young woman who hadattained the age of majoritybeing confined to a private mental clinic without herconsent, on an application made by her parents, the High Court of Delhi held thatprotection against an attack on the right tolife, liberty, privacy, and dignity can besought not only against the State but also against nonstate actors In the view of the High Court of Delhi, the actions of the young woman”s parents (private individualswere in clear violation of their daughter”sfundamental rights under Article 21 and, therefore, the parents wereordered to pay compensation.

³ Challenges to Fundamental Rightsƒ Zoroastrian Cooperative Housing Society vDistrict Registrar Recent Developments in the Horizontal Application of Fundamental Rights Recent judicial decisions have shown an incr easing tendency to impugn private action through the horizontal application of fundamen tal rights, especially the right to life and liberty under Article 21. Owing to the COVID-19 pandemic, the plight of migrant workers has again come to the forefront Most of these workers are employed by private individuals, and not the State, which make’s the question of securing them their fundamental rights complex.

Another area where we can see a shift towards horizontal application is thefundamental right to privacy By recognising that privacy has both a negative and a positive component, the Supreme Court inimposed an affirmative obligation on the State to formulate a data protectionlegislation to secure the right to privacy of the people even against violations byprivate entitiesIn doing so-., the Court recognised the need for crosssectoral andhorizontally applicable legislation (that is, applicable to the government as well asprivate persons It noted that the right to privacy, being enforceable primarilyagainst the State, imposes upon the State both negative and positive commitments., that is, to restrict the State from unfairly interfering in the privacy of individuals, while putting in place legislation to restrict others from doing so, and providingconditions for the development and dignity of individuals As a result., thegovernment iscurrently debating the Personal DataProtection Bill, which ishorizontally applicable, rightsbased (that is, it defines a data subject”s rights vis-à-vistheir personal data, and crosssectoral in nature.

In Inthe Court observed that the unprecedented degree of influence wielded by Facebooknecessitates safeguards and caution in consonance with democratic values Platformsand intermediaries must subserve the principal objective as a valuable toolforpublic good upholding democratic values The decision seems to be hinting at thefact that such platforms may be performing an important public function Thisopens up the possibility of making them amenable to writ jurisdictionandconstitutional scrutiny for horizontal privacy violationsin the future The decision KS. Puttaswamy vUnion of India, Puttaswamy, Justice Sanjay Kishan Kaul referred to the protection of the right against nonstate actors Noting that social network providers, search engines, email service providers, and messaging applicatio ns are all further examples of nonstate actors thathave extensive knowledge of our movements, fina ncial transactions, conversations, health, mental state, interests, locations, habits, and other intimate details, he stated that there is a need for regulation of how information can be stored, processed and used bynonstate actors The impact of all these developments on private companies like WhatsApp and Facebook which collect massive amounts of data oftheir users will be an interesting development to watch out for Will private companies be directly implicated for the violation of the fundamental right to privacy under the data protection legislation? Or, can they be brought under the ambit of “State” as they arguably pe rform a public function by providing communication services tomillions of people? Ajit Mohan vLegislative Assembly, National Capital Territory of Delhi,

Conclusion

The other question is how the Courts will adjudge the validity of laws such as therecently notified Information Technology Ru les, 2021 that seek to regulate Overthe Top (OTT platforms While the government may argue that these laws are meantto secure the fundamental rights of the citizens, how will it reconcile these with itspositive duty to maintain conditionsfor freedom of expression? The Bombay High Court has stayed the operation of some provisions of the Information Technology Rules, 2021 finding themThese new developments around the enforcement of thefundamental right to privacy provide an exciting opportunity for the judiciary toconceptuallydistinguish between the different types of horizontality based upon theidentity of the actors, as well as the natureof the action thatis being challenged.

The relentless pursuit of LPG policies without sufficient attention to them candefeat the constitutional obligation of public welfare After the adoption of the New Economic Policy in 1991, the privatisation of governmentowned companies anddisinvestment in public sector undertakings in several instances have been contestedbefore the constitutional courts The rulings demonstrate the judiciary”s proclivity tosupport the state”s policy However, its jurisprudence lacks any broadbasedprinciples that are followed to reviewsuch policies There are no considerationspeculiar to privatisation/disinvestment disputes and the judicial process can bebroadly categorised intotwo familiar step’sFirst, if the challenge is concernedprimarily with the “decision” to privatise or divest, the courts are reluctant tointervene or secondguess the government if the decision followsa welldefinedpolicy Secondly, the courts scrutinise only the procedure followed by theadministrationto ensure that the extantlaws and rules are respected, and do notreview the substance or contents of these decisions Neither step has contributed to Challenges to Fundamental Rightsƒ Jorawer Singh Mundy vUnion of India, prima facie to be anintrusion of the petitioners” rightsunder Article 19(1a.

As courts have continued to uphold disinvestment and privatisation decisions of the government, successive governments have been emboldened to continue theprocess of economic liberalisation-..

The private sector will continue to play a pivotal role inpowering India”s journey towards becoming a global economicpowerhouse Marketfriendly reforms and economic liberalisation will continueirrespective of the political leanings of the party inpower As seen recently, privatisation and disinvestment dominated budget headlines The governmentwants to keep a bare minimum presence in strategic sectors and is aggressivelylooking to disinvest from major public sector enterprises.

Such rapid privatisationhas been criticised as it willlead to the denial of social justice and reservations to the backward classes.

Bank unions have complained that the privatisation of thebanking sector is a corporate bailout where the same private sector that isresponsible for bad loans is being rewarded.

The risk of privatisation becomingpolitically motivated and pursued for the vested interests of different interestgroups or individuals is thus very real.

Given that the process is now irreversible, the judiciary must be cognizant of its role in adjudicating globalisation cases whichcan have profound consequences for the future of human rights and socioeconomic justice in India, as it can influence the meaning of individual rights, regulatory structure and norms, and the legalconstitutional discourse onglobalisation.

It is true that the changing role of the State in the globalsed world, the rise ofprivate actors due to liberalisation, the privatisation of the Indianeconomy, and thealtered dynamics between the state and the people, compelled the Courts to devisenovel methods to ensure that the constitutional guarantee of social and economicjustice does not suffer However, the horizontal enforcement of fundamental rightsremains inconsistent and unpredictable, lacking a systematic approach.

Problemsstarted creeping in with the unfettered expansion of Article 21 throughthe doctrine of-. “unenumerated” rights If Article 21 covers withinits wide sweep theright to a cleanenvironment, shelter, medical care, and various other such judiciallycrafted rights., would these rights be enforceable at all without active cooperation bynonstate actors? Inwhile the majority ruled that BCCI was not “State” under Article 12, it still allowedfor a writ petition under Article 226 as a safety valve realising that some of the BC CI”s functions significantly impacted theexercise of fundamental rights by citizensIn doing so, the Court conflated “rights” and “remedies”-..

The judgment incan be read to suggestthat constitutional and private law remainimportantly separate spheres, with theindirect horizontal effect of Part III as itrelates to private law in practice beingrather weak.

The approach of holding nonstate actors liable for violations of fundamentalrights by including them within the ambit of “other authorities” has not yieldedconsistentresults There are instances inwhich certain bodies have not beenregarded as “State” for the purpose of fundamental rights.

Thus, the actions of the Supreme Court may not be enough to bridge the publicprivate divide in relation tothese rights Furthermore, the twinprinciples of corporate law (limited liability andseparate personality operate as a welldocumented barrier in access to justice against Challenges to Fundamental Rightsƒ Vishakha, the Supreme Court justified the exercise of judicial power on account of a violation of fundamen tal rights under Articles 14, 15, 21, and 19(1gHowever, the Court failed to appreciate that the extension of the guidelines to private entities requireda separate conceptualenquiry While the horizontal application of fundamental rights to nonstate actors brought about a desirable outcome for the facts of this case, it, unfortunately, did not translate into doctrinally sound constitutional jurisprude nce as private actors, as opposed to the State, have their own fundamental freedoms The right to one man”s privacy could well amount to an unreasonable restriction on the other”s right to free speech when horizontally applied Similarl y, the right of one person to nondiscrimination could impact a private corporation”s right to carry on businessIn short, the nature of the enquiry has to be necessarily different when imposing a duty on nonstate actors., who themselves enjoy fundamental rightsIn Board of Control for Cricket in India (BCCI vCricket Association of Bihar, Zoroastrian Cooperative

The discussionabove suggests that although efforts have been initiated by the judiciary to protect people from infringement of their fundamental rights by privateaction, they have been sporadic and still lack a degree of tangible certainty.

Fundamental rights form the soul of our constitutional philosophy and the time hascome to take them to their logical next step, that is, make them enforceable againstprivate abuses without trying to establish a strenuous link with the “State”.

Therefore, what is it that the judiciarymust do to reach this logical next step?

Firstly, it is time to move beyondthe notion that “judges do not possess a fund of economic or social wisdom” and promote a multidisciplinary approach where judgesdraw from all forms of knowledge—legal, economic, social, and political—to reachan informed decision in such casesA certain degree of responsibility also lies onlawyers to push the bounds of LPG jurisprudence Legal submissions can besubstantiated by data thatdescribe the financial, economic, or sociological impact of LPG policies on investors, labour, and the public The courts, inturn, mustwelcome such analysis as a means to do complete justice as opposed to convenientlyavoiding stickyissues by citing lack of knowledge.

Secondly., it is possible to reconstruct the definition of “State” to bring privatecompanies within the purview of Article 12 to realise the constitutionally backedpromise ofsocioeconomic justice Both private, as well as government companies, are treated substantially the same under the Companies Act The major difference isbetween the nature of shareholders, but the tasks performed are substantially similar, and the manner in which theyare held accountable under the Companies Act ismore or less the same Therefore, in the present pushtowards privatisation anddisinvestment, while converting a PSU into a modern day company some guidelinesshould be developed in order to ascertain the nature and benefits of a private player”s dominance in the economy.

We have seen that the legislature uses certain criterialike the size of the company to decide the applicability of several social security and

Thirdly, the judiciary must conceptually distinguish between the differenthorizontality, based upon the identity of the actors, as well as the nature of theaction that is being challenged Once that is done, it must also develop these distinctmodels in a doctrinally consistent and justified manner The courtsmust explain thecircumstances under which indirect horizontality can be invoked in relation toprivate law in proceedings between private parties Similarly, courtsmust develop a rigorous and constitutionally backed model of positive fundamental rights, withaffirmative mandates being imposed on the State to ensure that the constitutionalvision of securing justice, liberty, and equality, in all its dimensions, is faithfullyaccomplished It must clarify the extentto which the State mustregulate theconduct ofprivate actors as an aspect of those positive duties.

The judicial enforcement of a positive obligation, whether it be in the form of a socioeconomic right or a civil right, raises the important question about the limitsof the judiciary in the light of the principl e of separation of powers To what extentcan the Court actually directthe State to ac t in a particular way?

One way to answerthis would be to lookat the fundamental rights asa scale The State can take anyaction it deems fit to shift the positionof the right to the negative side of this scale, provided itfollows the grounds set out under Articles 19(2 to 6. On the otherhand, a right can exist towards the positive side in any measure When the right on the positive side of the scale comes dangerously close to becoming nil, however, theobligation of the State extends toensuring this does not happen Viewing rightsinsuch a way will also help tobetter define the extent of judicial enforcement of a positive obligation thatlies on the State If rights are viewedas a scale, to contendthat courts cannot “dictate policy and budgetary allocation” is a weak argument Thisis because all judicial orders require some expenditure by the State State expenditureincurred in pursuance ofenforcing a legitimate fundamental right cannot constitute a violation of the separationof powers.

Some scholars have also argued for theconception of a “minimum core”—a modicum of a right that mustbe respectedirrespective of budgetary constraints orany other policy argument, without which Challenges to Fundamental Rightsƒ types of

In South Africa, the constitutional court hasobserved that the right to basic education must be “immediately realisable” becausethe constitution does not provide for “progressive realisation” despite the economicrealities of the State.

The constitutional court justifies this progressive standardwith a reference to the “minimum core” conception under the International Covenant on Economic, Social, and Cultural Rights This conception recognises a minimum core of obligations—basic education, primary healthcare, basic shelter, and housing If the minimum core obligation isnot met, the State is exempted onlyif it can demonstrate that “every effort has been made to use all resources that are atits disposition in an effort to satisfy, as a matter of priority, those minimumobligations”.

The idea of “rights as a scale” or “a minimum core of rights” can hencereconcile the aspect of a positive right with the idea that the judiciary cannot dictatepolicy, but only enforce rights.

Through the interpretation and enforcement of fundamental rights, the courtscan play a huge part in shaping what isviewed as legitimate—legitimate actions on the part of the State and legitimate actions on the part of its people.

Therefore, the judiciary mustunderstand the critical rolethat it plays in moulding the futurecourse of the nation”s economic agenda, which will hopefully be more inclusive andrespectful of the constitutionally guaranteed rights of every citizen.

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