Faculty Seminar | Horizontality and Hohfeld: Locating the Right to Freedom of Expression in the Analytical Framework

In this week’s faculty seminar, Keertana Venkatesh, Assistant Professor of Law at NLSIU will be presenting on “Horizontality and Hohfeld: Locating the Right to Freedom of Expression in the Analytical Framework.”

Abstract

The right to freedom of speech and expression ensured under Article 19(1)(a) of the Constitution of India has been viewed traditionally as a vertical right, i.e., a right enforceable in cases of unreasonable interference of the State. In early 2023, however, the Supreme Court of India in Kaushal Kishor v. State of Uttar Pradesh recognised the horizontal effect of this right. Although constitutional rights have been enforced against private actors in different ways in various jurisdictions, including the United States of America, South Africa, and Ireland, the Supreme Court of India seemingly adopted an approach of direct horizontality in its decision, attracting widespread criticism.

Hohfeld’s widely influential analytical framework seeks to disambiguate the notion of a “right”, through the identification of eight legal positions and their jural relationships. In respect of constitutional fundamental rights, vertical rights are immunities held by citizens in the Hohfeldian sense, that are entrenched against deprivation through State action. Consequently, according to the analytical framework, a vertical right would involve the imposition of disabilities upon actions of legal governmental officials in respect of exercising their powers on behalf of the State to enact any piece of legislation. The recognition of the horizontal effect complicates the location of the right to freedom of speech and expression within the Hohfeldian framework.

Constitutional rights involving multifarious Hohfeldian entitlements and correlates are not unusual, given that the protection of these rights is both complex and content specific. This paper analyses three such legal relationships involved in the protection of the right under Article 19(1)(a), to discern whether the broad-brushed recognition of horizontality by the Supreme Court is firmly grounded in theory. First, it will explicate the traditional vertical relationship placing citizens as holders of Hohfeldian immunities, and legal governmental officials as bearers of Hohfeldian disabilities, to question whether direct horizontality can be accommodated within this legal relationship. Second, it will examine direct horizontality through the constitutional structure placing citizens as holders of Hohfeldian claim-rights and relevant private actors as Hohfeldian duty-bearers, wherein the latter actors ought not engage in conduct that disturbs the enjoyment of rights of citizens. Third, by construing the right under Article 19(1)(a) as a Hohfeldian liberty, the paper will study whether direct horizontality results in limiting this liberty owing to the co-existence of the duty of non-interference. The second and third inquiries are tailored to investigate if direct horizontality has the effect of diluting existing rights and increasing the scope of impermissible conduct by private actors. Overall, the three inquiries seek to understand the philosophical foundations of the horizontal effect of the right to freedom of expression, which is critical to determine the legal obligations of both State and private actors, if any, with respect to the right.