Horizontal Rights-An Institutional Approach: Gautam Bhatia Book Review

Written by Yashaswani Parashar

This is a book review of “Horizontal Rights-An Institutional Approach” written by Gautam Bhatia.

Introduction

The institutional approach to horizontal rights delivers a deep understanding of the expansion of constitutional rights in the private sphere. The book provides a comprehensive collection of case laws across different jurisdictions to critically analyse varying approaches toward the horizontal application of constitutional rights. Bhatia explores the dimensions of applying the constitutional right where one party in private relations stands in a vulnerable position.

From Verticality to Horizontality of Rights

The book begins with elaborating on the vertical character of the Bill of Rights of the US Constitution. This discussion is also contextually relevant to Part III (Fundamental Rights) of the Indian Constitution based on the imported lines of the Bill of Rights. The default verticality of rights is elaborated as limited enforceability of constitutional rights in the state-individual interaction. In this regard, the author rigorously emphasis on the shortcomings of taking the route of default verticality to apply rights horizontally.

Bhatia profoundly discusses the efforts of the Supreme Court of the US to dilute the state action theory and apply the Bill of Rights in the private sphere via the state as a medium. In simple words, the constitutional rights by virtue of concretized theories of ‘state’ are enforceable against a private party only if it is a functionary of the state. Herein, Bhatia materializes the underlying notions of sovereignty – force, and power which monopolize the state power. In case a private party also gets the force and power and uses the monopoly against the other party, it can be subjected to constitutional rights.

Concept of Direct and Bounded Horizontality

The remarkable feature of the book is that it builds a conceptual understanding of direct horizontality between the parties within the same sphere. The author advances the concept to describe ‘unbounded direct horizontality’, which essentially defines the scope of applicability of constitutional rights. In short, constitutional rights cannot apply to every private interaction, in place, ordinary legislation facilitates the regulation in consonance with the Constitution.

Thus, unbounded direct horizontality includes the relationship where power differences between the parties reach the degree of subjugation or exploitation of the weaker party. Gautam Bhatia describes it as the relative position of the parties which shapes the hierarchy in the private sphere.

For example, denial of access to public parks or restaurants on a racial basis (in the USA) or economic conditions of a class of labourers to force them to work in unhealthy environments and exploitative wage rates (PUDR case).[1] Thus, it is essential to identify the institutions which source the relative location of the private sphere. The repeated reiteration of bounded horizontality by the author expressly indicates the message to constrain the applicability of constitutional rights to private parties by taking an institutional approach.

This book is an extensive travaux on – how institutional power constituted by individuals sustains the domination of certain groups of individuals. The individuals who intentionally carry forward the practices of an institution develop a structural relationship with other people. It can simply be understood as gender, class, caste, or race hierarchy. With respect to socio-economic gender disparities, this explanation shall take forward Bhatia’s previous work (Transformative Constitution),[2]which shed light on the expansion of constitutional rights to the domestic relationship of men and women.

Gender, Family and Domestic Relation

In the case of T. Sareetha v. T. Venkatasubbaiah (1983), the constitutionality of section 9 of the Hindu Marriage Act i.e., Restitution of Conjugal Rights was retained.[3] However, the author pointed out that the Sareetha judgment highlighted the gendered difference of power in the private sphere of the institution of family and advanced the advocacy of remuneration rights in household works. Herein, the institution of family is conditioned by the norms of a patriarchal society and ascertains the relative location of individuals based on gender. Therefore, it becomes crucial to extend the applicability of constitutional rights to protect horizontal rights in private institutions to improve equal gender participation in public institutions.

Privacy versus Constitutional Rights in Domestic Sphere

The idea of the application of constitutional rights to domestic relations is typically contestable to the argument of privacy. However, Bhatia’s elucidation upon this aspect is certainly a combination of a lawyer’s beady eyes for engagement of the constitutional aspect with the technicality of rights.

For this, he lays down the argument to contextualize domestic relations in the domain of institutions for the applicability of constitutional rights. The position of women in private and public sphere is interwoven. Participation of women in crucial economic and political policy decision is minimal due to influx of core values of the patriarchal notions into the key forums. As Bhatia points out that the definition of ‘work’ constitutes the production for the market creating monetary value.

However, the individual in this domestic relationship enabling the ‘valued/waged work’ is not recognized as valued work. In a gender-structured marriage, the power is pre-decided for women to deal with domestic and child care which is essentially unwaged. Hence, the inequality of positions in a heterosexual domestic relationship invites the intervention of constitutional rights.

Limits of Affirmative Action and Representation

For instance, the trivial impact of reserving of seats for women in the legislature may limit it to elitist tokenism. It may marginally contribute to the deliberative representation of the women bearing realities of inequality. The limited approach of affirmative action disregards the layered dimensions of women’s representation and is swayed by the default verticality. Essentially, Bhatia’s work unveils the intersections of ‘the whole’ of gender injustices embedded in the private core. There cannot be a straightjacket method to decode the multifaceted aspects of gender inequalities but simply reserving seats for women also may not be an appropriate route.

Conclusion

Bhatia’s work is a comprehensive work to contextually analyse the relative positions of individuals triggering the right of one in a disadvantageous position. The dimensions of constitutional rights are broad enough to cover large areas of social and economic rights. However, it is the well-defined discussion of this book on the institutional aspect of horizontality that ascertained the focal point of it.

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[1] Peoples’ Union Democratic Rights v. Union of India, 1982 AIR 1473

[2] Gautam Bhatia, The Transformative Constitution A Radical Biography in Nine Acts, in The Transformative Constitution A Radical Biography in Nine Acts (2019).

[3] Sareetha v. T. Venkata Subbaiah, (1983) SC OnLine AP 90