Can a writ petition be filed against an individual?

Saptarshi Roy,
St. Xavier's University, Kolkata
&
Md Shah Minhajuddin,
St. Xavier's University, Kolkata

Abstract

A writ petition can be filed by any individual in the Supreme Court when Fundamental Rights
have been violated by the State whereas a writ petition can be filed in the High Court when
Fundamental Rights or any other rights have been violated by the State. However a writ can be
filed against the individual by taking the horizontal approach which is further divided into direct
horizontal application of rights and indirect horizontal application of rights. There have been
many cases where the court gave judgment using different types of horizontality which will be
discussed in the article.

Article

A writ is an application which provides the right to approach the Supreme Court or High Court
to protect the Fundamental Rights which are contained in Part III of the Indian Constitution
when such rights have been violated. The Constitution of India provides five kinds of writs
which are Habeas Corpus, Mandamus, Quo Warranto, Certiorari and Prohibition. Under Article
32, a writ petition can be filed in the Supreme Court when Fundamental Rights have been
violated. Under Article 226, a writ petition can be filed in the High Court within competent
jurisdiction. The power of the Supreme Court to issue a writ is much limited than the power of
the High Court.

In India, normally the fundamental rights are executable against the state but in some cases they
may even be executable against the individual. At first, the vertical application of rights was
enough. The vertical application of rights means the rights are exercised against government

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authorities, but the growing private power with the power of the private sector and the
abandonment of the state made this facility inadequate. The powers vested in the state are very
much and if the state decides to abuse them, it can largely do so. Therefore, the court has taken a
horizontal approach, so that it can take action against an individual under the sui generis doctrine
and start exercising rights against an individual. The concept of horizontal application was first
introduced in Ireland. Subsequently, this approach was embraced by many countries such as
India. Thus, there are two approaches which are horizontal applications of rights and vertical
applications of rights. Horizontal rights apply against an individual while vertical rights are
rights that can only be applied against government officials. The horizontal approach is divided
into 2 which are direct horizontal effect and indirect horizontal effect. Direct horizontal
application of rights can be implemented directly if there is any wrong committed that violates
the fundamental rights of others under the Constitution of India. In the case of indirect horizontal
application of rights, constitutional rights indirectly control them by imposing duties on them
through law. The Article 15 (2) prohibits discrimination which is included in Part III of the
Constitution, takes the horizontal application of rights that obliges all public and private entities
to refrain from discrimination on the basis of sex, caste, creed or place of birth. This article
prohibits the licensee from resorts, restaurants, etc to refuse anyone based on the factors
mentioned above. Another provision where the horizontal application of rights is allowed is
Article 17, which refers to the prohibition of untouchability. In many villages, Dalits are still
widely victimized and disfavored. They are not allowed to wear house shoes when going to
houses of high caste. They have to eat meals on different plates. The wells are set aside from
them for use by people of higher castes. In such cases, the individual must be held accountable,
otherwise the practical application of fundamental rights will be pointless and will not serve the
motive for which the constitution was made. Another provision where the horizontal application
of rights is allowed is Article 21 which guarantees the right to life and personal liberty of any
person, can be exercised against a private individual.

An example of direct horizontal applicability can be seen in the case of Consumer Education and
Research Center v. Union of Indiai, where the court held that health workers have the rights
against private employers and added that private actors are bound by this decision under Article
32 of the Indian Constitution. The court elsewhere has utilized Article 21 of the Constitution
where the court has said that the people can claim the right to life against the individual. In the

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case of Society for Un-Aided school of Rajasthan v. Union of Indiaii, where the court used the
horizontal applicability of fundamental rights and upheld the constitutional validity of Right to
Education Act, 2009 to accept 25% of disadvantaged children of 6 to 14 years of age in all public
and private schools. A separate article related to this system in Part III of the constitution can be
seen as Article 21. In MC Mehta v. State of Tamil Nadu, the court exercised the horizontal effect
of fundamental rights. The court observed that the employment of children in the Shivkasi
cracker factory violated Article 24 prohibiting child labor. The court ordered the employer to
compensate the children. Indirect horizontal application has been used in many cases, especially
in the famous case of Vishaka v. State of Rajasthaniii, a worker in Anganwadi was raped by some
culprits. The Supreme Court has used the indirect horizontal application of rights using The
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
guidelines against sexual harassment. Also in the case of Vishaka and Medha Kotwal Leleiv, the
court held that the individual has rights against the state in terms of Article 14, Article 19 and
Article 21 which obliges the state to control private actors who ensure that these rights are not
violated. In the case of R. Rajagopal v. State of Tamil Naduv, the state officials brought
defamation and privacy issues against the appellant. The Supreme Court used indirect
horizontality on the issue of defamation and privacy. The court referred this case with Article
19(1) (a) of the Constitution. The court also referred to Article 21 to further strengthen the right
to privacy of the individual against private individuals. Also in the case of Zoroastrian
Cooperative v. District Registrarvi, the Supreme Court said that the rights of the members of a
Cooperative Society to socialize with anyone they are happy but this right disallowed the right of
the person against non-discrimination on the basis of caste, religion, sex, race, and place of birth.
As a result, the court upheld the impugned laws, as well as other rules which allowed and
allowed the Society to exclude individuals on religious grounds.

Therefore in India, a writ can be filed against an individual using the horizontal approach.
However, there are no proper regulations and rules that have been prescribed by the court
regarding horizontal application. The Court must conceptually distinguish between the
different types of horizontality and must provide the scope of horizontality in the Constitution of
India.

i
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922 (India)

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ii
Society For Un-Aided Private School of Rajasthan v. Union of India, WRIT PETITION (C) NO. 95 OF 2010
(India)
iii
Vishaka & Ors v. State Of Rajasthan, AIR 1997 SC 3011 (India)
iv
Medha Kotwal Lele & Ors v. U.O.I. & Ors, WRIT PETITION (CRIMINAL) NOS. 173-177 OF 1999 (India)
v
R. Rajagopal v. State Of T.N, AIR 1995 SC 264 (India)
vi
Zoroastrian Cooperative v. District Registrar, Appeal (civil) 1551 of 2000 (India)

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