Rising reports of discrimination against transgender persons reveal entrenched transphobia in our society. While some fundamental rights under the Indian Constitution extend to private entities, this duality in enforcement raises a critical question: can horizontal application of fundamental rights address such discrimination? Drawing on trans-feminist critique, Aparna Bhatnagar argues that transphobia, as a manifestation of “Brahminism”, confines transgender individuals to stigmatised occupations, perpetuating unchecked discrimination.
Current jurisprudential stance on horizontal application of fundamental rights in India
The concept of the horizontal application of fundamental rights is not alien to the Indian constitutional framework. In several cases, the Indian Supreme Court has held private parties accountable for violating fundamental rights, especially in relation to social and economic issues. For example, in M.C. Mehta v. Union of India, the Court held tanneries responsible for polluting the Ganga River, illustrating that private entities can be held liable for actions that infringe upon fundamental rights. Similarly, in Society for Unaided Schools of Rajasthan v. Union of India, the Court held that non-State actors are obligated to provide free and compulsory education to children. This extended the scope of obligations beyond the State, reflecting the broader reach of fundamental rights to include private individuals and organizations.
In K.S. Puttaswamy v. Union of India, the Court explained that while common law rights can be enforced against private individuals, constitutional rights are usually enforced against the State. However, some rights can exist both as common law rights and as fundamental rights. The majority in this case agreed that the right to life and privacy under Article 21 is one such right, meaning it can be invoked not only against the State but also against private individuals. More recently, in Kaushal Kishor v. State of UP, the Court confirmed that Articles 19 and 21 can apply to private entities, suggesting that other fundamental rights could also extend beyond the State. The Court’s reasoning was that if a fundamental right isn’t solely tied to the State, it can be naturally extended to private actors. In other words, the lack of explicit mention of horizontality in the Constitution shouldn’t be viewed as a restriction, but as room for its possible application. The Court in Kaushal Kishor, quoting Justice Anand in Nilabati Behera v State of Orissa stated that “the purpose of public law is not only to civilise public power but also to assure the citizen that they live under a system which aims to protect their interests and preserve their rights”. This provides a strong justification for the horizontal application of constitutional rights.
Brahminism, transphobia and everything in between
In the context of transgender persons in India, this institutional approach is particularly relevant due to the significant power imbalances they encounter. Dalit trans feminist writer Living Smile Vidya has poignantly described transphobia as a form of “brahminism” that relegates transgender individuals to marginalised and stigmatised occupations, such as sex work and begging. Upper caste trans women visit houses for “badhai” (blessing ceremonies), while middle castes are involved in asking for alms, and lower castes typically take up sex work. This is a direct result of the caste system’s intersection with gender identity. The ideology of Brahminism enforces a rigid structure that excludes individuals who don’t fit the dominant caste categories, and trans individuals, especially those from Dalit and Adivasi communities, find themselves doubly oppressed. Adding to this historical burden, Jeffrey Gettleman, a Pulitzer Prize-winning journalist, notes that Victorian England’s strict moral codes, which criminalised “carnal intercourse against the order of nature”, amplified India’s discomfort with homosexuality and transgender identities during British colonial rule.
This institutionalised discrimination results in systemic denial of employment opportunities, constituting a violation of Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. Importantly, in September 2022, a Supreme Court bench of Justices D.Y. Chandrachud and Hima Kohli directed the Centre to formulate a policy ensuring equal employment opportunities for transgender persons. This order followed a plea by Shanavi Ponnuswamy, who challenged Air India’s decision to deny her a cabin crew position because of her gender identity. In its ruling, the Supreme Court also emphasised that transphobia, leading to denial of employment opportunities for transgender individuals, violates their right to life under Article 21.
Towards an “institutional approach” of horizontality of fundamental rights in India
It is universally accepted that some form of horizontality is desired in contemporary constitutional setups. Legal scholar Gautam Bhatia has criticised the “default verticality” prevalent in the Indian judiciary’s approach. Bhatia advocates for an “institutional approach” where constitutional rights should be applied between private parties in specific contexts. This approach is justified when: (a) an institution (social, economic, or cultural) is pervasive and difficult to exit, such as the labour market or the family; (b) the institution creates and maintains a power imbalance between the parties involved; and (c) this power imbalance allows one party to infringe upon the rights of the other.
The critical question that arises is whether this horizontal application of fundamental rights can be extended to address discrimination faced by transgender individuals by private parties. The oft-quoted slogan “the personal is political“, attributed to feminist scholar Carol Hanisch, emphasises that the lived experiences of marginalised communities in the private sphere reflect systemic injustices they face. The adoption of an institutional approach offers a promising solution to the pervasive discrimination faced by transgender individuals, ensuring that protections are not limited to interactions with the state but also encompass interactions with private entities. As we move forward, it is crucial to dismantle the façade that cloaks the “politics of the personal“, which frequently serves to protect increasingly powerful private entities from scrutiny. The institutional horizontality approach allows for a more equitable and just society, where systemic discrimination is actively challenged and marginalised communities are afforded the protection and respect they deserve.
All articles posted on this blog give the views of the author(s), and not the position of the Department of Sociology, LSE Human Rights, nor of the London School of Economics and Political Science.
Image credit: Alexander Grey
This post was originally published on LSE Human Rights.