Abstract
The landmark judgment in Kaushal Kishor v. State of Uttar Pradesh (2023) marked a paradigm shift in Indian constitutional jurisprudence by establishing the horizontal application of fundamental rights under Articles 19 and 21. This research examines the implications of this judicial development for private digital platforms and social media companies operating in India. The Supreme Court’s 4:1 majority decision that fundamental rights can be enforced against private actors fundamentally alters the traditional vertical understanding of constitutional rights. This paper reads whether Article 19’s freedom of speech and expression can now bind private platforms in their content moderation practices, the challenges this creates for platform autonomy, and the broader implications for digital rights governance in India. Through doctrinal analysis and comparative examination of global approaches, this study evaluates the practical enforceability of horizontal free speech rights against private digital intermediaries. The research concludes that while Kaushal Kishor creates theoretical grounds for horizontal application, practical implementation requires careful balancing of competing rights and interests, supported by comprehensive regulatory frameworks.
Keywords
Horizontal rights, Article 19, Private platforms, Kaushal Kishor, Freedom of speech, Digital rights
Introduction
The digital revolution has fundamentally transformed the landscape of freedom of expression in India. Social media platforms and digital intermediaries have emerged as the new public squares where democratic discourse unfolds, yet they remain private entities with their own terms of service and community guidelines.¹ The traditional understanding of fundamental rights as enforceable only against the state (vertical application) has been challenged by the increasing power wielded by private digital platforms in shaping public discourse.
The Supreme Court’s decision in Kaushal Kishor v. State of Uttar Pradesh in January 2023 represents a watershed moment in Indian constitutional law.² The Bench, in a 4:1 majority held that fundamental rights under Articles 19 and 21 can be maintained against private or non-State actors, fundamentally altering the constitutional framework governing rights enforcement. This judgment raises critical questions about the application of Article 19’s freedom of speech and expression to private digital platforms and their content moderation practices.
The significance of this development cannot be overstated in the context of India’s digital ecosystem, where over 700 million internet users engage daily with platforms like Facebook, Twitter, YouTube, and WhatsApp.³ These platforms routinely make decisions about content removal, account suspension, and algorithmic visibility that directly impact users’ ability to express themselves and access information. The question of whether such decisions can now be challenged as violations of Article 19 rights presents both opportunities and challenges for digital rights advocacy and platform governance.
The emergence of private digital platforms as gatekeepers of information has created “platform constitutionalism” – a system where private entities exercise quasi-governmental power over fundamental rights. This research examines the doctrinal foundations of the Kaushal Kishor judgment, analyzes its implications for private platform regulation, and evaluates the practical challenges of implementing horizontal free speech rights in the digital domain.
Research methodology
This research employs a doctrinal methodology, primarily relying on legal analysis of constitutional provisions, judicial precedents, and statutory frameworks. The methodology encompasses several key approaches to provide a comprehensive examination of the topic.
The primary approach involves constitutional interpretation through analysis of Article 19 of the Indian Constitution and its judicial development over seven decades. This includes examination of landmark cases such as Romesh Thappar v. State of Madras (1950), Sakal Papers v. Union of India (1962), and Bennett Coleman & Co. v. Union of India (1972) to understand the evolution of free speech jurisprudence.⁴
Comparative constitutional analysis forms another crucial component, examining how other jurisdictions have addressed the horizontal application of constitutional rights. This includes analysis of the German constitutional concept of Drittwirkung, the South African approach to horizontal rights under their post-apartheid constitution, and the evolving jurisprudence in the United States regarding state action doctrine and private platform regulation.⁵
The research methodology also incorporates analysis of relevant statutory frameworks, including the Information Technology Act, 2000, and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These regulatory instruments provide the current legal framework governing digital platforms and their obligations regarding content moderation.
Case law analysis extends beyond Indian jurisprudence to include relevant international precedents, particularly from jurisdictions grappling with similar questions of platform regulation and free speech. The methodology acknowledges the recent nature of the Kaushal Kishor judgment and addresses limitations by drawing on analogous cases and theoretical frameworks.
Review of literature
The literature on horizontal application of fundamental rights in India has evolved significantly, particularly following the Kaushal Kishor judgment. Academic discourse has traditionally focused on the vertical nature of constitutional rights, with limited exploration of their horizontal dimensions until recent developments.
Constitutional law scholars have long debated the scope and application of fundamental rights. Granville Austin’s seminal work “The Indian Constitution: Cornerstone of a Nation” established the foundational understanding of rights as primarily vertical in nature, enforceable against state actors.⁶ This traditional view was challenged by academic discourse around constitutional values permeating private relationships, drawing inspiration from German constitutional theory.
The concept of Drittwirkung or third-party effect of constitutional rights has been extensively analyzed in German legal scholarship. Günter Dürig’s theory of objective constitutional values has influenced constitutional interpretation globally, including in India.⁷ Indian scholars like M.P. Jain and D.D. Basu have examined the potential for horizontal application of constitutional rights, though their analysis predates the explicit judicial recognition in Kaushal Kishor.
Recent scholarship on digital rights and platform governance has highlighted the need for constitutional adaptation to digital realities. Scholars like Gautam Bhatia have argued for expansive interpretation of constitutional rights to address private power in the digital domain.⁸ The Centre for Internet and Society has produced extensive research on platform governance and the intersection of constitutional rights with digital intermediary regulation.
International comparative literature provides valuable insights into horizontal rights application. The South African experience with horizontal application under their 1996 Constitution, particularly in cases like Khumalo v. Holomisa (2002), offers relevant precedents for Indian jurisprudential development.⁹ European scholarship on the horizontal effect of human rights provides additional comparative perspective.
Literature on platform governance has expanded rapidly in recent years. The concept of “platform constitutionalism” developed by scholars offers frameworks for understanding how private platforms exercise quasi-governmental power over digital communication.¹⁰ Critical gaps in existing literature include limited analysis of practical implementation of horizontal rights against digital platforms in the Indian context.
Analysis and discussion
Constitutional Foundations of Horizontal Rights:
The Supreme Court’s decision in Kaushal Kishor fundamentally reinterpreted the scope of constitutional rights enforcement in India. The judgment held that Articles 19 and 21 of the Indian Constitution applied horizontally – actionable not just between the state and individuals but also between private entities themselves. This represents a significant departure from the traditional understanding established in cases like State of West Bengal v. Committee for Protection of Democratic Rights (2010), which limited fundamental rights enforcement to state action.¹¹
The doctrinal foundation for horizontal application draws on the constitutional philosophy that fundamental rights embody objective values that permeate all aspects of legal relationships. Justice Ramasubramanian’s majority opinion emphasizes that constitutional rights cannot be confined to vertical relationships when private actors wield significant power over individual autonomy and dignity.¹² This approach aligns with the German constitutional court’s development of Drittwirkung, where constitutional values influence private law relationships.
The horizontal application of Article 19 raises particular questions about its scope and limitations. Unlike Article 21, which has been interpreted expansively to include positive obligations, Article 19’s traditional focus on negative rights requires reinterpretation in the horizontal context. The question becomes whether private platforms have positive obligations to facilitate free speech or merely negative obligations not to unreasonably restrict it.
Digital Platforms as Constitutional Actors:
The emergence of digital platforms as dominant mediators of public discourse transforms them from mere private businesses into quasi-public institutions with significant constitutional responsibilities. This transformation reflects the reality that platforms like Facebook, Twitter, and YouTube function as essential infrastructure for democratic participation in contemporary society.
The scale and scope of platform operations in India make them particularly significant constitutional actors. With over 400 million Facebook users and 200 million WhatsApp users in India, these platforms mediate a substantial portion of public discourse and information flow.¹³ Their content moderation decisions effectively determine what speech is permissible in digital public squares, giving them power comparable to traditional government censorship.
Platform terms of service and community guidelines function as private constitutional documents that govern user rights and platform obligations. The horizontal application of Article 19 potentially subjects these private rules to constitutional scrutiny, requiring alignment with constitutional values of free speech and expression. This creates tension between platform autonomy and constitutional compliance.
The algorithmic nature of content moderation introduces additional complexity to constitutional analysis. Automated systems that flag, remove, or suppress content based on machine learning models may inadvertently violate constitutional rights through biased or overbroad enforcement. The horizontal application of Article 19 may require platforms to ensure their algorithmic systems comply with constitutional standards of reasonableness and proportionality.
Enforcement Challenges and Practical Implementation:
The practical enforcement of horizontal Article 19 rights against private platforms presents significant challenges that extend beyond doctrinal recognition. The traditional remedy structure for constitutional violations, designed for state actors, may not adequately address private platform violations of free speech rights.
Jurisdictional challenges emerge when dealing with global platforms whose servers, decision-making processes, and corporate structures span multiple countries. Indian courts may face difficulties enforcing constitutional obligations against foreign-based platforms, particularly when content moderation decisions are made outside Indian territorial jurisdiction.¹⁴
The standard of review for platform content moderation decisions under horizontal Article 19 remains undefined. Courts must determine whether to apply strict scrutiny, intermediate scrutiny, or rationality review when evaluating platform restrictions on speech. The choice of standard significantly impacts the practical enforceability of horizontal rights.
The scale of content moderation on digital platforms creates practical challenges for individualized constitutional review. Platforms process billions of content pieces daily, making case-by-case constitutional analysis impractical. This suggests the need for systemic approaches that ensure constitutional compliance in platform policies and procedures rather than individual content decisions.
Comparative Analysis: Global Approaches:
The German experience with Drittwirkung provides valuable insights for implementing horizontal rights in India. German courts have developed sophisticated frameworks for balancing constitutional rights in private relationships, particularly in cases involving media and expression rights.¹⁵ The German approach emphasizes proportionality analysis and requires courts to balance competing constitutional values rather than applying absolute rights.
The South African experience with horizontal constitutional rights under Section 8 of their 1996 Constitution offers another relevant model. South African courts have applied constitutional rights to private relationships while maintaining sensitivity to the different nature of private versus public power. The case of Khumalo v. Holomisa demonstrates how courts can require private actors to respect constitutional values while preserving space for legitimate private decision-making.
The European Union’s Digital Services Act represents a regulatory approach to platform governance that incorporates fundamental rights considerations into platform obligations. The DSA requires platforms to respect fundamental rights in their content moderation systems and provides mechanisms for independent oversight and review.¹⁶ This regulatory model may provide insights for implementing horizontal constitutional rights through legislative frameworks rather than purely judicial enforcement.
Suggestions
Judicial Development Recommendations:
Courts should develop clear doctrinal frameworks for applying Article 19 horizontally to private platforms while respecting legitimate platform autonomy. This requires establishing appropriate standards of review that balance constitutional rights with commercial and operational realities of platform governance. The Supreme Court should clarify whether platforms are subject to strict scrutiny analysis similar to government actors or a modified intermediate scrutiny that acknowledges their private nature.
The judiciary should establish procedural requirements for platform content moderation that ensure constitutional due process while remaining operationally feasible. This might include requirements for clear community guidelines, transparent appeal processes, and timely review of content decisions. Courts should avoid micromanaging platform operations while ensuring basic procedural fairness in content moderation.
Constitutional remedies need adaptation to address private platform violations effectively. Courts should develop innovative remedial approaches including structural reforms of platform governance, algorithmic transparency requirements, and independent oversight mechanisms.
Legislative Reform Recommendations:
Parliament should enact comprehensive digital rights legislation that operationalizes horizontal constitutional rights in the platform context. Such legislation should establish clear obligations for platforms regarding constitutional compliance while providing safe harbors for good faith content moderation efforts. The regulatory framework should balance constitutional rights with legitimate concerns about harmful content and platform liability.
The intermediary liability framework under the Information Technology Act requires revision to incorporate horizontal constitutional rights obligations. New legislation should clarify platform obligations regarding constitutional compliance while maintaining appropriate limitations on liability for user-generated content.
Establishment of independent regulatory bodies with expertise in digital rights and platform governance would improve implementation of horizontal constitutional rights. Such bodies could provide guidance on constitutional compliance, investigate violations, and mediate disputes between users and platforms.
Platform Governance Recommendations:
Platforms should proactively align their terms of service and community guidelines with Indian constitutional values, particularly regarding freedom of speech and expression. This alignment should go beyond mere legal compliance to embrace constitutional principles as core values in platform governance.
Implementation of constitutional review processes within platform content moderation systems would improve compliance with horizontal rights obligations. This might include constitutional impact assessments for policy changes, training programs for content moderators on constitutional principles, and escalation procedures for constitutionally significant content decisions.
Platforms should enhance transparency and accountability in their content moderation processes to facilitate constitutional oversight. This includes publishing detailed transparency reports, providing clear explanations for content decisions, and establishing accessible appeals processes that address constitutional concerns.
Conclusion
The Supreme Court’s decision in Kaushal Kishor v. State of Uttar Pradesh represents a fundamental transformation in Indian constitutional jurisprudence with profound implications for digital platform governance. The horizontal application of Articles 19 and 21 creates new possibilities for protecting free speech rights in digital spaces while simultaneously raising complex questions about implementation and enforcement.
The horizontal application of Article 19 to private platforms reflects constitutional law’s adaptation to contemporary realities where private actors wield significant power over fundamental rights. Digital platforms function as essential infrastructure for democratic participation, making their content moderation decisions constitutionally significant rather than merely commercial choices.
However, the practical implementation of horizontal constitutional rights against private platforms remains challenging. The scale of global platform operations, the technical complexity of content moderation systems, and the need to balance competing rights and interests require careful judicial and regulatory development. Courts must develop appropriate standards of review and remedial mechanisms that effectively protect constitutional rights without unduly constraining legitimate platform operations.
The international comparative analysis reveals various approaches to similar challenges, from Germany’s sophisticated Drittwirkung doctrine to the European Union’s regulatory framework in the Digital Services Act. These experiences suggest that successful implementation of horizontal constitutional rights requires both judicial development and comprehensive regulatory frameworks that operationalize constitutional obligations in practical terms.
The recommendations for judicial development, legislative reform, and platform governance provide pathways for realizing the potential of horizontal constitutional rights while addressing implementation challenges. The success of this constitutional innovation will depend on collaborative efforts among courts, legislators, platforms, and civil society to develop workable frameworks that protect democratic values in digital spaces.
Looking forward, the Kaushal Kishor decision opens new chapters in both constitutional law and digital governance. The horizontal application of Article 19 has the potential to strengthen democratic discourse in digital spaces by subjecting private platform power to constitutional scrutiny. However, realizing this potential requires sustained attention to the complex practical challenges of implementing constitutional rights in global digital platforms.
The ultimate significance of this development extends beyond India’s borders. As democracies worldwide grapple with the challenges of platform power and digital rights, India’s approach to horizontal constitutional application may provide valuable lessons for other jurisdictions facing similar challenges. The intersection of constitutional law and digital technology represents one of the most important frontiers in contemporary legal development.
SUJATA KUMARI
GGSIPU(FIMT)