[This is a guest post by Sarthak Gupta.] On 17 October 2025, the Supreme Court of India in Jane Kaushik v. State of NCT of Delhi (“Jane Kaushik”) delivered one of its earliest rulings applying the doctrine of indirect horizontal application of fundamental rights. The Court extended constitutional values into private law relations through legislative
[This is a guest post by Sarthak Gupta.]
On 17 October 2025, the Supreme Court of India in Jane Kaushik v. State of NCT of Delhi (“Jane Kaushik”) delivered one of its earliest rulings applying the doctrine of indirect horizontal application of fundamental rights. The Court extended constitutional values into private law relations through legislative mediation rather than direct judicial enforcement. By situating its reasoning within the framework of the Transgender Persons (Protection of Rights) Act, 2019 (“2019 Act”), the Court adopted a measured and textually grounded approach to the horizontal operation of fundamental rights, one that recognises the limits of judicial authority while allowing constitutional principles to guide both public and private spheres.
In this post, the author examines how Jane Kaushik marks a doctrinal moment of consolidation rather than expansion in India’s horizontal rights jurisprudence. [See here] Unlike the conceptual ambiguity that underlay Kaushal Kishore v. State of Uttar Pradesh (2023) [As earlier discussed on the blog here, here and here], where horizontality was proclaimed but never operationalised, Jane Kaushik makes a fair attempts to provide an analytically coherent and institutionally grounded framework. The decision grounds the horizontal effect of fundamental rights in legislative design rather than in direct constitutional adjudication, thereby advancing a form of legislatively mediated constitutionalism that reconciles the transformative aspirations of fundamental rights with the institutional discipline of constitutional structure.
The Story of Jane, Pride and (No) Prejudice
The petitioner, Jane Kaushik, a transgender woman and teacher, challenged her unlawful termination, from a private educational institution in Delhi. The petitioner alleged that her termination was based solely on her gender identity and therefore violated the equality and dignity guarantees under Articles 14, 15, and 21 of the Constitution, as well as the express prohibitions on discrimination contained in Section 3 of the 2019 Act. What began as an individual grievance of wrongful termination developed into a constitutional question of broader significance: whether and to what extent fundamental rights, conceived primarily as vertical guarantees against the State, may acquire indirect horizontal effect through statutory frameworks that embed constitutional values within private relations.
The Supreme Court, in its judgment, upheld the petitioner’s claim, holding that the obligations of equality and non-discrimination articulated in the 2019 Act reflect the constitutional ethos of Articles 14, 15, and 21 and bind both State and non-State actors. (Paras 125–127) The Court further observed that Section 3 of the Act functions as a statutory vehicle for the indirect horizontal application of fundamental rights, ensuring that private employers cannot invoke their non-State character to escape constitutional accountability. (Para 129) Importantly, the Court clarified that this horizontal reach arises not from a direct constitutional command but from the legislative translation of constitutional principles into enforceable statutory duties. (Para 130)
Kaushal Kishor to Jane Kaushik: Some Constitutional Clarity
The decision in Kaushal Kishore represented an crucial but analytically unsettled moment in the evolution of fundamental rights jurisprudence in Indian Constitution. [Earlier discussed on this blog, here and here] The Constitution Bench held that Articles 19 and 21 could, in appropriate contexts, be enforced even against private individuals (Paras 155–156), signalling that constitutional rights were not confined to the State’s vertical domain. Yet, the reasoning in Kaushal Kishore was marked by doctrinal ambiguity and conceptual overlap. The majority opinion blurred the distinction between State action, positive obligations, and direct horizontal application, without clarifying the mechanism by which constitutional rights could govern private conduct. Justice B.V. Nagarathna’s separate opinion underscored this uncertainty, warning that the majority’s approach risked “constitutionalising every private dispute” and eroding the autonomy of private law.
This analytical weakness can be understood via the “boundary” and “transplant” questions of horizontality. The Court in Kaushal Kishore failed to articulate where the boundary of horizontal application should lie, when constitutional adjudication is justified and when disputes ought to remain within private law, and whether rights such as those under Articles 19 and 21 can meaningfully be transplanted into private relations without distorting their original constitutional context. The absence of a clear doctrinal pathway in Kaushal Kishore left the understanding of our constitutional structure with a form of rhetorical horizontality, an expansive promise of rights protection without corresponding institutional or normative structure. The judgment’s ambition to extend rights beyond the State was evident, but its method of doing so remained unresolved.
Against this background of conceptual uncertainty, Jane Kaushik represents a turn toward constitutional clarity and institutional realism. The Court in Jane Kaushik approached the question of horizontality through legislative mediation rather than judicial invention. By locating horizontal application within the 2019 Act, a statute that imposes affirmative duties on both public and private entities, the Court recognised that the indirect horizontal application of fundamental rights operates through laws that embody constitutional values rather than through direct judicial enforcement. As the Court noted, “since the legislature has already imposed obligations on non-State actors, the theoretical debate over horizontality becomes largely academic”. (Para 130)
The reasoning in Jane Kaushik closely parallels the German model of “indirect effect” (mittelbare Drittwirkung), developed by the Federal Constitutional Court (Bundesverfassungsgericht) in its seminal Lüth decision of 1958. In that case, the Court held that while constitutional rights under the Grundgesetz (Basic Law) are primarily enforceable against the State, they also possess an “objective order of values” (objektive Wertordnung) that permeates the entire legal system. Rather than applying constitutional rights directly to private parties (unmittelbare Drittwirkung), the Court mandated that private law must be interpreted and developed in conformity with constitutional values, thereby ensuring that private relations reflect the spirit, if not the letter, of constitutional rights. [See, Moller] Under this doctrine, ordinary courts remain the primary fora for enforcing such rights within private law, but they must interpret statutory and common law rules through a constitutional lens, balancing individual autonomy with the collective value order of the Constitution. The Lüth principle thus preserves the public–private distinction while ensuring that constitutional morality informs the entire legal order, a balance between rights protection and institutional restraint that has become a defining feature of post-war German constitutionalism. [See, here and here]
Viewed through this German Constitutionalism, Jane Kaushik situates Indian constitutionalism within a broader movement toward legislatively mediated horizontality, where the extension of rights depends on the institutional vehicle through which they are operationalised. [See here for Kenyan Courts’ discussion on Horizontal rights] The Court refrained from imposing direct constitutional duties on private entities, recognising instead that Parliament, as the democratically accountable branch, is best positioned to translate constitutional norms into binding private law obligations. Jane Kaushik thus represents a shift from the abstract universalism of Kaushal Kishore to a form of constitutional pragmatism grounded in legislative design and institutional competence.
Jane Kaushik Moment: Consolidating (Not Transforming) Horizontality
The reasoning in Jane Kaushik represents a significant, though measured, step in the evolution of India’s horizontal rights discourse. Unlike the sweeping and doctrinally unsettled reasoning in Kaushal Kishore, the Jane Kaushik Bench approached horizontality with conceptual restraint and institutional clarity. It neither celebrated a constitutional revolution nor invented a new category of rights; instead, it consolidated the indirect horizontal application of fundamental rights through the legislative framework of the 2019 Act.
The Court’s principal interpretive move was to locate horizontality within legislative mediation rather than judicial innovation. It held that, because the 2019 Act imposes duties on both State and non-State actors to prevent discrimination based on gender identity, the statute itself translates constitutional rights into enforceable private obligations. As the Court observed, “the obligations imposed on private bodies by the 2019 Act reflect the constitutional commitment to equality, dignity, and non-discrimination under Articles 14, 15, and 21”. (Para 128) In this sense, the Court treated the 2019 Act not as an instrument of judicial extension but as a legislative embodiment of constitutional principles, thereby grounding horizontality in democratic legitimacy.
At the same time, the Court recognised the institutional limits of this model. It acknowledged that the 2019 Act’s enforcement mechanisms remain underdeveloped and that its grievance redressal framework is inadequate to ensure effective implementation. (Para 132) The Court noted that while the Act “operationalises the horizontal effect of constitutional rights in form,” its “limited institutional enforcement mechanisms” risk undermining its transformative potential. Implicit in this reasoning is an appreciation of the boundary question, that constitutional adjudication should not displace private law where adequate remedies exist. By situating horizontality within statutory design, the Court effectively delineated a boundary that preserves private law autonomy while ensuring that its operation remains consistent with constitutional values. This acknowledgment situates Jane Kaushik within a realist tradition of constitutional interpretation. Hence, Jane Kaushik does not convert horizontality into a fully functional doctrine; it anchors it in statutory reality and administrative feasibility. The decision represents a move from constitutional overreach to constitutional discipline, a recognition that transformative constitutionalism must proceed through legislative channels that are democratically enacted and institutionally equipped. In contrast to Kaushal Kishore’s abstract universalism, Jane Kaushik embodies a mature, context-sensitive constitutionalism, one that aspires to inclusion without dissolving the boundary between constitutional rights and private autonomy.
Conclusion: Institutionalising Horizontality [?]
The movement from Kaushal Kishore to Jane Kaushik reflects the emergence of a more structured understanding of horizontality within Indian constitutional law. Kaushal Kishore gestured toward extending fundamental rights into private spheres but failed to articulate the boundary question, when constitutional adjudication should enter domains otherwise governed by private law. Jane Kaushik responded to this gap by situating horizontality within legislative frameworks, implying that the reach of fundamental rights beyond the State must depend on democratically enacted statutes that translate constitutional principles into enforceable obligations. In doing so, the Court delineated a pragmatic boundary that preserves the autonomy of private law while ensuring that it operates in conformity with constitutional values.
At the same time, the Jane Kaushik offers a cautious answer to the transplant question, whether rights originally designed to bind the State can meaningfully apply to private relations. Jane Kaushik demonstrates that such transplantation is legitimate only through statutory mediation, where constitutional norms are contextually embedded in specific regulatory schemes. This approach offers a template for extending similar constitutional commitments to other vulnerable groups, most notably persons with disabilities, where the Rights of Persons with Disabilities Act, 2016 could serve as a comparable legislative conduit for the indirect horizontal application of equality and dignity rights. Taken together, the boundary and transplant dimensions mark a move toward institutionalising horizontality in India. The future of horizontal rights adjudication thus lies not in unbounded judicial extension but in institutional frameworks that mediate constitutional values through legislation, administration, and adjudication, ensuring that the transformative promise of rights remains consistent with the discipline of constitutional structure.
