The Erosion of Article 12: Why the Supreme Court’s Stance on "Horizontal Rights" in Jane Kaushik Changes Private Litigation Forever

The Crumbling Wall of State Action

For decades, the golden rule of Indian constitutional litigation was drilled into every law student during their first semester: Fundamental rights are enforceable only against the "State" under Article 12. Unless you could prove a private entity was an instrumentality or agency of the State, Part III of the Constitution was a closed door. You had to rely on statutory remedies, tort law, or contract law.

That door has now been kicked wide open.

In a watershed development reported earlier this year in Jane Kaushik (Transgender Rights Enforcement) v. Union of India, (2026) 1 SCC 336, the Supreme Court has fundamentally altered the landscape of constitutional enforcement. While adjudicating rights under the Transgender Persons (Protection of Rights) Act, 2019, the Court didn't just issue guidelines—it explicitly clarified the horizontal applicability of fundamental rights against private parties.

For practicing lawyers, this isn't just academic theorizing. It is a seismic shift in how we will draft pleadings, advise corporate clients, and strategize civil litigation.

The Jurisprudential Arc: From Kaushal Kishor to Jane Kaushik

To understand why Jane Kaushik matters, we must look at the foundation the Supreme Court has been laying over the last few years. Traditionally, horizontal application (enforcing constitutional rights between private citizens) was limited to specific provisions like Article 15(2) (access to public spaces), Article 17 (abolition of untouchability), and Article 23 (prohibition of human trafficking).

Then came the 2023 Constitution Bench judgment in Kaushal Kishor v. State of U.P., where a majority held that rights under Articles 19 and 21 could be enforced against private individuals. However, Kaushal Kishor left procedural ambiguities. How exactly does a citizen enforce a Part III right against a private corporation without twisting the writ jurisdiction of Article 226 into a knot?

Jane Kaushik bridges this gap by fusing constitutional horizontal rights with statutory enforcement. The Court clarified that the anti-discrimination mandates of the Transgender Persons Act, 2019 against private employers and establishments are not merely statutory obligations—they are direct emanations of Part III rights (Articles 14, 15, 19, and 21) operating horizontally.

"The insulation of private actors from constitutional scrutiny can no longer hold when the statute itself is designed to operationalize fundamental rights horizontally. A private entity violating the 2019 Act is not merely committing a statutory breach; it is infringing upon the constitutional guarantee of dignity."

Why This Matters for Practicing Lawyers

If you are a litigator or a corporate advisor, this judgment demands an immediate change in your practice. Here is why:

1. Corporate Compliance is Now Constitutional Compliance

For corporate lawyers advising HR departments, the stakes have escalated. Previously, a private company discriminating against a transgender employee might face a civil suit or proceedings under specific labor laws. Now, the Supreme Court has signaled that such violations are tethered directly to fundamental rights. This opens the door for constitutional torts against private entities. Companies can no longer hide behind the defense that they are not "State" actors. If your corporate client is not strictly compliant with the 2019 Act—including providing unisex toilets, appointing complaint officers, and ensuring non-discriminatory hiring—they are vulnerable to high-stakes rights-based litigation.

2. Re-engineering Writ Strategies

Litigators need to rethink Article 32 and Article 226 petitions. While the Supreme Court is not inviting a flood of writ petitions against private tea stalls, Jane Kaushik strengthens the argument for writs of mandamus against private bodies performing public functions or operating under rights-enforcing statutes. When drafting a writ against a private hospital or educational institution (a theme also seen in the Supreme Court's January 2026 directives on student mental health under Article 142), you must aggressively cite Jane Kaushik to bypass the traditional Article 12 maintainability hurdle.

3. The Expansion of Damages

When a right is strictly statutory, damages are often capped or dictated by the statute. When a right is elevated to a horizontal fundamental right, courts have wider equitable jurisdiction to award exemplary or constitutional damages. Litigators representing marginalized communities should actively plead for constitutional damages against private actors, citing the erosion of the vertical-only rights paradigm.

The Verdict: A Necessary Chaos

From a human rights perspective, the Supreme Court is absolutely right to take this stance. In an era where private corporations wield more power over daily life, privacy, and employment than the State itself, restricting fundamental rights to a vertical State-citizen axis is anachronistic.

However, from a procedural standpoint, the Court is opening a Pandora’s box. By blurring the lines between private law (torts/contracts) and public law (constitutional rights), the judiciary risks overwhelming the writ courts. The Supreme Court needs to establish a rigid procedural filter for horizontal rights claims, lest every private employment dispute gets dressed up as an Article 21 violation.

Until then, the message for the Indian legal fraternity is clear: The Article 12 shield is cracking. Prepare your clients for a new era of horizontal constitutional accountability, and start drafting your plaints with Part III in mind—even when the defendant is a private entity.