Analytical Spillover of Public and Private Law Divide and Positive Constitutionalism in the Indian Legal System

(a) Analytical Spillover of Transcending the Public and Private Law Divide & Indian Legal System

The U.S. law refer private agreement as a “restrictive covenant“, and as per the given example in the private agreement there was a clause which was meant to stop Black people from buying properties. The agreement treated as a part of private property law which can also referred as the “contract” between individuals. However, when the case, Shelly vs. Kraemer (1948) was brought before the U.S. Supreme Court with an appeal to enforce racially discriminatory in nature.[1] The U.S. Supreme Court made a remark that court enforcement would involve the State (“government”) in supporting discrimination. The court took the issue as a public law rather than just a private one. The court upheld the case and made historical remark that enforcing such private agreement violates the Equal Protection Clause of the Fourteenth Amendment.[2] The court gave weightage to public law values based on non-discrimination and equality even after the private law instrument was supported by the state.

What is Spillover?

The public and private law has been defined as the fundamental concept in legal theory. Public law covers the interaction of people and the government which include rules like constitutions, crime, and government actions.[3] Whereas private law is meant for private parties that how the people will interact with each other for example contracts, property ownership, and handling accidents. The divide is not anymore clear especially in countries with strong constitutions. Rights like fairness, freedom and equality which is inherited from public law are influencing private law too. For instance, a private agreement or contract cannot be unfair or discriminatory in nature. Judiciary, an independent yet part of the government ensure that public values shall apply even in private disputes.[4]

The enforcement of the private contract involves judicial oversight and state power making the private agreement effective like a public law, but when it comes to the courts in the cases and on the ground of discriminatory in nature, the State becomes syndicate in the discrimination. Thus, public law based on fundamental rights become more relevant even in the private contracts or agreements.[5]

Case Law — In the Indian Context

The Indian constitution jurisprudence which has evolved to accommodate spillover in the matter where fundamental rights are involved. The enforcement is not just seen as vertically against the State but horizontally among the private sectors.[6]

1. Navtej Singh Johar v. Union of India (2018)[7]

In the Navtej Singh Johar vs. Union of India (2018) case the Supreme Court of India decriminalised consensual homosexual acts by down striking down Section 377 of the Indian Penal Code, which defined “carnal intercourse against the order of nature” as criminal offense.[8]

• Private Sphere Affected: The petitioners argued that Section 377 of the IPC is against their privacy, dignity and autonomy while regulating private consensual sexual conduct.[9]
• Public Law Intervention: The Supreme Court of India examined the argument as per the fundamental rights under the Articles 14, 15, 19, and 21 of the Constitution and found that constitutional rights were not confined to the public realm — the court further extended to protect individuals in private domains from unjust State intrusion.[10]
• Spillover Impact: As per the Indian Constitution, the Section 377 was a public law and criminal statute, but its real impact was on the private relationship — the court upheld the fundamental rights of the petitioners as the public law was interfering with private individuals.[11]

2. Joseph Shine v. Union of India (2018)

In the Joseph Shine v. Union of India (2018)[12] case the Supreme Court of India struck down Section 497 of IPC, which defined adultery and treated women as the property of their husbands which has been criminalised by the court.

• Private Sphere Affected: In this case, court directly interfered with private marital relationships with remark that the law was based on outdated patriarchal morality.
• Public Law Evaluation: The Supreme Court further found that Section 497 of IPC was violating the fundamental rights as defined in the constitution under Articles 14, 15, and 21.
• Spillover Impact: Though IPC Section-497 was a public law (criminal), but the decision of the court transformed it to a private law while holding marriage, gender, equality, and personal autonomy – rejecting male dominance in the relationships.

Analysis

Private law – like contracts and agreement are meant for governing the interaction between the individual. Whereas the public law is applicable that how the dispute shall be carried out based constitutional principles of the State; but in aforementioned examples we have seen that courts has been oversighting the private law as well and whenever found violation of fundamental rights including but not limited to dignity, equality or freedom the courts whether it is situated in India, or the U.S. has always upheld and interfered in the private law even if it was supported by the State or vice-versa.[13]

(b) Horizontal and Vertical Effect in Relation to Public and Private Law

In the legal terminologies the horizontal and vertical effect refer to application of the decision in private or public law. When rights enforced against the state it is known as vertical effect whereas, when the rights are enforced against the private law on individuals or entities is known has horizontal effect.[14]

It is important to understand the vertical and horizontal effect to determine the extent and reach of constitutional protections in countries like India where social and economic relationship is often influenced by the powerful private or non-state actors.

Vertical Effect

Vertical effect is defined as when an individual enforces constitutional rights against the government or its subsidiaries. As per the traditional understanding that how rights under Part-III of the Indian Constitution operate.[15]

Examples: —
In 1978, the passport of Maneka Gandhi was impounded by the state without giving her a fair hearing. The court held that “right to travel abroad” falls within the legal framework of “personal liberty” under the Article 21 of the Constitution[16] – this expended the definition and emphasised state accountability.[17]

 A petition was filed before the Supreme Court of India against Unique Identification Authority of India (UIDAI) Ministry of Electronics and Information Technology Government of India citing that Aadhaar mandated by the govt is violating fundamental right – the right to privacy.[18] [19]

• Vertical Relationship: Aadhaar was introduced by the govt of India as a unique identification number for multiple purposes including getting govt subsidies, pension, scholarship etc – while the sensitive information including the biometrics information of individuals were taken.[20]
• Significance: The Supreme Court of India sought clarification from govt of India and after hearing both sides, govt of India and the private petitioner, the court denied upholding the Aadhaar scheme while instructing govt no forcing individuals for Aadhaar or making mandatory.[21]

Horizontal Effect

In simple terms, the horizontal effect law is not only applicable to public law, but it is also applicable to private laws including individuals, entities and private parties in the cases where fundamental rights of an individual are violated; the fundamental right could be dignity, equality, or freedom of expression and other rights defined in the constitution of a country.

In Kaushal Kishor vs The State Of Uttar Pradesh Govt. Of U.P (2023), the Indian Supreme Court held that fundamental rights under Articles 19 and 21 of the Indian Constitution can be enforced against private individuals, not just the government.[22]

• Ruling: The Supreme Court of India upheld that the fundamental rights are not only applicable to the public laws but also to the private laws such as agreement, contracts etc.[23]

• Significance: Violation of an individual’s fundamental rights like – dignity of liberty is criminal offense as per the constitution of India, but the judgement gave a clear recognition of the horizontal effect with its judgement.[24]

 The difference between horizontal and vertical effects is no longer strict in Indian constitutional law. In the recent judgements and petitions, the Indian courts including High Courts and the Supreme Court has recognised that private entities or individuals including but not limited to employer, family members, relatives, and government can infringe fundamental rights. In this case, the horizontal effect becomes important to ensure justice; while it is responsibility of the government to protect the rights of the individuals and shall remain central leading to vertical effect.[25]

1. The concept of positive constitutionalism

The concept of constitutionalism defined by Giovanni Sartori is like a rulebook for keeping an eye on government. This has originated from the western countries which states that the government should not have too much power, it should follow clear laws and cannot do whatever it wants.[26] According to him, a constitution is not merely a piece of paper but a set of ideas and systems like courts or elections make sure that the government remain accountable and fair to its people. This further ensures that a balance shall be maintained between the government and the individuals’ rights shall be protected.[27]

Sartori’s model focuses on the following aspects:

• Separation of powers
• Judicial independence
• Fundamental rights and liberties
• Supremacy of the constitution
• Democratic legitimacy
• Accountability and rule of law

The basic principle of the constitutionalism maintain limitation ensuring a balanced approach in adhering State’s power limiting to the fundamental legal norms and those in the power must exercise the rights within those legal limits.

Positive Constitutionalism

Positive constitutionalism is different as it does not merely see a construction as a rule book to stop the government from doing injustice. Instead, it is like a guidebook which tells the government about the good governance while ensuring that everyone shall be treated equally and protecting their fundamental rights. The concept is to make things better and not just about giving controlling power. It is a tool for the upliftment of deprived people, resolving disputes, keeping peace and harmony and being accountable to its people.[28]

The Key features of positive constitutionalism include:

• Emphasising on the promoting social welfare.
• Adopting a transformative jurisprudence.
• Fair and strong focus on socio-economic rights.
• Emphasis on collective justice alongside individual liberties.

The constitution is seen as a living document and as an actor social transformation.

Non-Liberal Models of Constitutionalism

Non-Liberal models of constitutionalism also refer to authoritarian constitutionalism. Under this model a country has constitution, elections, courts and other legal bodies but these instruments cannot stop the government from doing whatever it wants. In simple words, even though law exist but it is merely on the paper while the government ignores it and uses to remain in power. This is usually adopted to show the world that the country is governed by a legitimate constitution but on ground it is not followed by the leaders.[29]

Such constitutions exist because of the following reasons: –

• That the country has a legitimate tool but not followed in reality
• To show rights and democratic framework but without effective enforcement
• To allow concentration of power
• Exist in middle eastern nation like Russia and China – often uses hybrid regimes

India follows a hybrid unique model of constitutionalism; it begins with classical liberal foundation but integrate positive constitutional and democratic values. The Indian constitution is incorporated in liberal democratic state while separating powers, judicial review, and fundamental rights which further include state intervention to ensure socio-economic justice through Directive Principles of State Policy Part IV.[30]

The model is defined as Transformative Constitutionalism based on:

• Restructuring society through constitutional machinery
• Empowering marginalised communities
• Balanced rights with social justice
• Provide a framework for constitutional morality, equality and progressive reform

Examples: –

• Decriminalisation of homosexuality by applying principles of dignity, autonomy and privacy.
• Shayara Bano case upholding gender justice even with religious personal laws.

1. How the Indian Constitution borrowed constitutional ideologies

The Indian Constitution is one of the best examples of borrowing ideas from various countries. The people who wrote the Indian Constitution looked for the best laws adopted by countries like the US, UK, Canada, Ireland and Australia. The tribunal picked the parts they liked such as how government or court shall be democratised. But, instead of directly copying the law from other countries, they changed the idea that can fit with the language, socio-cultural and regional challenges. This is often referred as the mix-approach for making the Indian Constitution by picking best parts needed while modifying it to align with Indian demography.[31]

The Indian Constitution borrows the following frameworks: –

• Parliamentary system from the UK
• Federal structure from Canada
• Fundamental rights and judicial review from the USA
• Directive Principles of State Policy from Ireland
• Emergency provisions from Germany
• Independent judiciary and separation of power inherited from American and British models.

However, these borrowings were not directly included in the Indian constitution rather it was changed and modified as per Indian demography while keeping in mind the diversity, colonial history, and challenges of nation building.

Indian Recontextualization of Borrowed Norms

1. Federalism with a Unitary Bias – The United States have pure federalism whereas India has a quasi-federal with a strong Centre. This was adopted for keeping unity in a diverse and fragmented society post-partition. The Constitution provided asymmetrical federalism for some religions like Article 370 for J&K, and Sixth Schedule for North-East. However, the government of India has revoked and abolished the Article 370 for J&K.[32]
2. Fundamental Rights and Directive Principles – India borrowed fundamental rights from the US law and the Directive Principles from the Irish law. However, India integrated both making a unique dual rights framework.[33]
3. Judicial Review and Public Interest Litigation (PIL) – Judicial Review has been borrowed from the US Constitution, but India broadened its scope. This has evolved with time and enabled enforcement of socio-economic rights for disadvantaged groups.[34]
4. Secularism and Pluralism – Secularism was influenced by western value but with distinct like – not anti-religious but equal respect for all religion. This has led important social reform including abolishment of untouchability, temple entry rights etc.[35]

Indian Constitutional Adaptation

The Indian constitution projected as one of the largely succeeded in adapting foreign norms to Indian context. It has accommodated pluralism, linguistic diversity, and relational aspects. The constitution has evolved to protect rights of minorities, women, children, LGBTQ, and backward classes. This has fostered into a judicial innovation giving a rise to doctrines like basic structure, continuing mandamus, and constitutional morality.[36] [37]

References

• [1] Shelley v Kraemer, 334 US 1 (1948).
• [2] US Constitution amend XIV, § 1.
• [3] See A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959) 183–205.
• [4] Horatia Muir Watt, ‘Private Law and the Constitutionalization of the Legal Order: A Comparative Perspective’ (2003) 51 Am J Comp L 701; HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 207–214.
• [5] Shelley v Kraemer, 334 US 1 (1948); Mark Tushnet, ‘State Action, Social Structure, and Constitutional Law’ (1981) 14 Law & Society Review 699; Hugh Collins, The Constitutionalisation of Private Law (OUP 2019).
• [6] Vishaka v State of Rajasthan (1997) 6 SCC 241; Justice KS Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1; Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019).
• [7] (2018) 10 SCC 1
• [8] Indian Penal Code 1860, s 377.
• Navtej Singh Johar v Union of India (2018) 10 SCC 1.
• [9] Ibid.
• [10] Ibid.
• [11] Ibid.
• [12] (2019) 3 SCC 39
• [13] Shelley v Kraemer, 334 US 1 (1948); Navtej Singh Johar v Union of India (2018) 10 SCC 1; Vishaka v State of Rajasthan (1997) 6 SCC 241; Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019).
• [14] Stephen Gardbaum, ‘The “Horizontal Effect” of Constitutional Rights’ (2003) 102 Mich L Rev 387; Vishaka v State of Rajasthan (1997) 6 SCC 241; Campbell v MGN Ltd [2004] UKHL 22.
• [15] State of West Bengal v Subodh Gopal Bose AIR 1954 SC 92; Rupa Ashok Hurra v Ashok Hurra (2002) 4 SCC 388; M P Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 1017–1020.
• [16] Article 21 of the Indian Constitution
• [17] Maneka Gandhi v. Union of India (1978)
• [18] (2017) 10 SCC 1
• [19] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.
• [20] Ibid.
• [21] Ibid.
• [22] 2023 SCC OnLine SC 86
• [23] Ibid.
• [24] Ibid.
• [25] Vishaka v State of Rajasthan (1997) 6 SCC 241; Lata Singh v State of UP (2006) 5 SCC 475; Shakti Vahini v Union of India (2018) 7 SCC 1; Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019).
• [26] Giovanni Sartori, Democracy in America (Harper & Row 1962) 855; Richard Bellamy, Constitutionalism: A Very Short Introduction (OUP 2012) 6.
• [27] Ibid.
• [28] Upendra Baxi, The Constitutional Law of India: A Critical Introduction (Oxford University Press 2008) 57; Minerva Mills Ltd v Union of India (1980) 3 SCC 625; Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019) 100.
• [29] Shklar, Judith N., The Faces of Injustice (Yale University Press 1990) 74; David Held, Models of Democracy (5th edn, Polity Press 2017) 271; Alfred C. Stepan, The Authoritarian Resurgence: Can Democracy Coexist with Autocracy? (2009) 31 Foreign Affairs 14.
• [30] M P Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 45-47; Kesavananda Bharati v State of Kerala (1973) 4 SCC 225; B.R. Ambedkar, The Essential Writings of B.R. Ambedkar (Valentine 2002) 121; Minerva Mills Ltd v Union of India (1980) 3 SCC 625.
• [31] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966) 30-45; K.K. Aziz, The Making of the Pakistan Constitution (Oxford University Press 1983) 122; Upendra Baxi, The Indian Constitution and Its Interpretation (Eastern Book Company 2003) 98; Shyamji Krishnavarma, India’s Constitution-Making Process: A Comparative Perspective (2015) 56 Journal of Indian Constitutional Studies 80.
• [32] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966) 82-91; D.D. Basu, Introduction to the Constitution of India (23rd edn, Lexis Nexis 2020) 131-137; State of Jammu and Kashmir v. Union of India (1957) 1 SCR 141; M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 1025-1032; The Constitution (Application to Jammu and Kashmir) Order, 2019.
• [33] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966) 15-30; M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 1024-1032; K. K. Aziz, The Making of the Pakistan Constitution (Oxford University Press 1983) 85; Kesavananda Bharati v State of Kerala (1973) 4 SCC 225; V. R. Krishna Iyer, The Directive Principles of State Policy: Their Interrelationship with Fundamental Rights (1979) 21 Journal of the Indian Law Institute 267.
• [34] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966) 42-59; M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 1180-1195; Maneka Gandhi v Union of India (1978) 1 SCC 248; P.N. Bhagwati, Public Interest Litigation: A Path for Access to Justice (1982) 1 Indian Journal of Legal Studies 71; V. R. Krishna Iyer, Public Interest Litigation: A New Dimension to the Indian Judiciary (1985) 18 Journal of the Indian Law Institute 85; People’s Union for Civil Liberties v Union of India (2004) 2 SCC 476.
• [35] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966) 93-110; M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 1012-1025; Rajeev Dhavan, Secularism in India: Issues, Challenges and Contributions (1992) 39 Indian Journal of Political Science 215; Nani Palkhivala, The Constitution of India: A Commentary (3rd edn, N.M. Tripathi 1995) 1462-1475; Indira Gandhi v Raj Narain (1975) 2 SCC 159; K.K. Aziz, The Role of Religion in the Constitutional Framework of India (1996) 22 Journal of Indian Constitutional Law 112.
• [36] The Constitution of India, Constitution of India, 1950, Part III (Fundamental Rights), Part IV (Directive Principles of State Policy).
• [37] Kesavananda Bharati v State of Kerala (1973) 4 SCC 225: This case established the “basic structure” doctrine, which ensures that certain fundamental features of the Indian Constitution cannot be altered by Parliament.