Beyond the Avatar: Horizontal Application of Fundamental Rights to Metaverse Platforms in India

Abstract

Virtual reality, or the “metaverse”, is an emerging issue for legal governance. In the current landscape, private entities in the form of technology companies are able to shape users' behaviour, personal information, and online identity without the same constitutional obligations as those of the State. In this study, the question is whether such platforms can be regulated under the Indian constitutional law doctrine of “horizontal application”. There was a traditional understanding that Articles 19 and 21 of the Constitution would be enforced primarily against the State and its instrumentalities, as defined under Article 12. This shift is due to the concurring opinion of Justice Kaul in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) in which it was held that the right to privacy also has to be safeguarded against non-State actors, especially in the event of large-scale private data collection. The Supreme Court's majority judgment in Kaushal Kishor v. State of Uttar Pradesh (2023), reaffirming the direct horizontal application of Articles 19 and 21, further bolstered this development. The paper argues the horizontal approach provides a sound constitutional basis for extending fundamental rights protection to metaverse users, though it still lacks the legislation and institutional mechanisms needed for effective implementation.