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

Document Type

Research Article

Author ORCID Identifier

https:/orcid.org/0000-0003-0496-3966

Abstract

The right** to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution has been viewed traditionally as a vertical right, i.e., a right enforceable in cases of unreasonable interference of the State. 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 horizontally in different jurisdictions, the Supreme Court adopted a direct horizontal approach, attracting widespread criticism. Wesley Hohfeld’s widely influential analytical framework seeks to disambiguate the notion of a “right”. 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 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 coexistence of the duty of non-interference. The three inquiries seek to understand the analytical structure 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.

Publication Date

11-2025

Journal

Indian Journal of Constitutional Law

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