Introduction
In Jane Kaushik v. State of NCT of Delhi, the Supreme Court, in many ways, sought to give some shape to the doctrine of indirect horizontal application of fundamental rights. A previous analysis reads the judgement as a “moment of consolidation” in India’s horizontal rights jurisprudence, and a retreat from Kaushal Kishore v. State of Uttar Pradesh’s conceptual looseness (as critiqued [here], [here], and [here]) towards a more institutionally grounded and analytically sound path. Such optimism, however, I submit, may be premature. This essay argues that by pushing horizontality into the realm of legislative mediation (as the previous analysis terms it), the Court in Jane Kaushik neither resolves the ambiguity that Kaushal Kishore inaugurated nor offers a principled substitute. What it does, instead, is simply trade one form of vagueness for another - leaving the doctrine no less uncertain than before.
Setting the Stage: Horizontality in Context
To situate Jane Kaushik’s contribution, it helps to briefly recall what the debate around indirect horizontality entails. In essence, the idea challenges the traditional assumption that fundamental rights bind only the State. It asks whether, and how, these rights may also shape private relations - not by directly constitutionalising them, but by allowing constitutional values to infuse private law through interpretive means.
The horizontality question came to the fore in Kaushal Kishore, where the Constitution Bench held that rights under Articles 19 and 21 could, in appropriate circumstances, be invoked against private actors. Yet, the judgement’s reasoning blurred key distinctions between State action, positive obligations, and enforcement. As is also what I intend to point out, while the Court ambitiously gestured toward horizontality, it did so without specifying (1) the thresholds for invocation, (2) the normative standards for limitation, or (3) the remedial pathways available in private disputes. It also left unresolved (4) whether horizontality was to be direct, imposing Part III obligations on private entities themselves, or (5) indirect (operating through interpretive infusions into private law). The result, thus, was a decision which widened the horizon of rights adjudication but lacked the scaffolding necessary to sustain it.
The decision in Jane Kaushik gains significance precisely against this backdrop. The case concerned the unlawful termination of a transgender teacher by a private school - an individual grievance that evolved into a constitutional question of broader import. The Supreme Court upheld her claim, grounding its reasoning not in direct judicial innovation, but in a legislative mediation through the 2019 Act itself. In paragraphs 131–135, the Court mapped how the 2019 Act itself embeds constitutional values of equality and dignity within private law, rendering the abstract debate on horizontality “largely academic.” By invoking analogous statutory frameworks (like the POSH Act, for one) the Court located horizontality within the statutory ecosystem, thereby marking a shift from Kaushal Kishore’s open-ended universalism to a more restrained model of engagement.
The Problem with the Jane Kaushik Model
The Jane Kaushik model carries with, to my mind, two strands of discomfort worth considering. I now — set out these concerns below.
(i)
If one returns to the original conception of indirect horizontality as an interpretive infusion of constitutional values into private law, the most immediate difficulty lies in accepting that the doctrine was ever meant to locate itself within statutory law. The point of indirect effect is defeated the moment constitutional meaning is outsourced to the legislature. Its purpose, rather, is to ensure that constitutional principles silently guide and inform private law reasoning. To therefore view Jane Kaushik as a faithful instance of indirect horizontality (by situating it within statutory law) is, in my view, to misread its theoretical posture.
At the same time, however, I argue it would be a mistake to treat Jane Kaushik as an instance of indirect horizontality at all. Its deeper logic, properly understood, aligns more closely with the theory of positive obligations - i.e. the State’s duty to regulate private power in ways that secure constitutional guarantees. For when the Court invokes the 2019 Act as the instrument through which constitutional values of equality and dignity are extended into the private sphere, it is, in effect, recognising a form of State-mediated horizontality to discharge its duty to protect. Seen this way, Jane Kaushik may be conceptually defensible within the positive-obligations model.
(ii)
The Court’s reasoning elides the conceptual distinction between recognising horizontality and operationalising it. The existence of statutory frameworks cannot, by itself, settle the question of whether and how far do fundamental rights bind private actors. Statutes, at the end of the day, are instruments of legislative policy. They may reflect, borrow, or even deviate from constitutional values, but they do not derive their binding authority from Part III. To read such enactments as manifestations of horizontality therefore becomes problematic. For it collapses the normative force of constitutional rights into legislative convenience, and risks reducing fundamental rights to mere policy commitments subject to repeal, dilution, and so on.
It also risks fragmenting rights protection across uneven statutory regimes. For instance, while the 2019 Act imposes anti-discrimination duties, it remains dependent on executive enforcement and lacks an effective grievance mechanism - a problem that Jane Kaushik itself recognises (see para 135). The logical consequence of the Court’s position, thus, becomes a paradox. For while individuals do possess a constitutional promise of equality and dignity against private actors, yet they must wait for legislative translation before they can claim it meaningfully.
Conclusion
To sum, I submit Jane Kaushik does not resolve the uncertainties that have long surrounded horizontality. By locating constitutional meaning within statutory frameworks, the Court converts what should have been a question of interpretive principle into one of legislative facilitation. The result is a model that appears dependent, leaving the promise of horizontality contingent on legislative willingness rather than constitutional necessity.