[This is a guest post by Ghopesh SV.]
Jane Kaushik v. Union of India was a landmark judgement in which a transgender woman teacher had sought compensation from two private schools for alleged employment malpractice, and the State, which had failed to enforce provisions of the Transgender Persons (Protection of Rights Act), 2019 (“TGA”). The Court held that the 2nd school committed discrimination by withdrawing her employment upon learning of her gender identity, and that the State committed omissive discrimination insofar as it did not enforce compliance with the TGA by private parties.
Beyond its significance for queer rights, the judgment is also significant for being the first and only Supreme Court judgment (as of writing), since Kaushal Kishor, to explicitly develop jurisprudence on the operationalisation of horizontality. In this case, the Court explicitly invoked indirect horizontality as the fundamental doctrine for adjudicating the petitioner’s rights and the private respondent’s 2nd school’s liability. Normally, the adoption of a doctrine such as indirect horizontality should provide a clearer framework for the Court to determine the duties of private parties towards others’ fundamental rights; something neglected entirely by Kaushal Kishore.
However, this piece argues that the judgment does not do much to disambiguate Kaushal Kishore, as the Court ended up enforcing direct horizontality as a result of both improper analysis and application of the doctrine of indirect horizontality. In short, the Court failed to distinguish between obligations under a statute and liabilities arising out of the breach of the obligations. Instead, it substituted the liabilities emerging from constitutional law for violations of statutory obligations. This leads to a kind of “direct-indirect” hybrid model of horizontality, where enforcement of horizontality is left purely to the discretion of the Court, with not much regard for the actual statutory scheme – an effect contrary to the purpose of indirect horizontality.
Two Models of Horizontality
Before analysing the judgment, it is imperative to set out a brief overview of the two main relevant models of horizontality (see here for a more detailed overview). Direct horizontality is when constitutional rights and obligations directly subject the conduct of private parties, even in private affairs. Indirect horizontality is when the rights and obligations are already set out in a law that regulates the private affairs of parties, and the Court tests whether said law is in compliance with constitutional values.
The main difference between the two is that in the latter, rights and obligations of the parties stem not from the constitutional law but instead from the non-constitutional law. In the indirect model of horizontality, private conduct is subject to clearly defined bounds as already set out in the non-constitutional law. However, these bounds are subject to interpretation or even modification by the Court to bring it in alignment with constitutional values. That said, the rights and obligations ultimately stem from the non-constitutional law.
The judgment in Kaushal Kishore does not acknowledge, let alone differentiate between these models, and as such, the operationalisation of horizontality has been left in limbo as noted in this blog previously.
The Court’s Analysis of Horizontality
In analysing the Court’s understanding and use of indirect horizontal application, it is first necessary to understand the 4 issues framed by the Court (¶28), which can be summed up as:
- Whether there exists a positive obligation on the State, under the Constitution and the TGA, to prevent discrimination?
- Whether inaction and omission by the State amounts to discrimination,
- Whether the actions of the private schools were discriminatory,
- Whether the petitioner is entitled to compensation from all parties?
At the very outset, issues of this nature are not new to the Court, and have been dealt with without explicitly invoking horizontality. The first two issues are purely related to the positive duties of the State. As for the rest, indirect horizontality did not need to be explicitly invoked, as it is well-established by now that the Supreme Court has wide enough powers under Article 32 to make even private parties, at individual instances, amenable to its writ jurisdiction, as has been held in cases such as Jeeja Ghosh. Granted, the petitioner had explicitly sought horizontal effect, arguing that there is a duty cast upon private parties not to discriminate, relying on Kaushal Kishore (¶15), and the 2nd private respondents argued that the present matter was a private employment/contractual issue outside the writ jurisdiction of the Court (¶22-27). However, the Court could have simply relied on Kaushal Kishore and held that the withdrawal of employment upon the learning of a person’s gender identity constitutes an affront to dignity. Then, it could have used its powers under Article 32 to order compensation. This would not have, at the very least, muddled Kaushal Kishore.
Instead, the Court chose to delve into a nuanced and complex topic such as indirect horizontality and made it the main legal basis for determining the rights and liabilities in this case (¶131-135 and ¶162). This is most clear in the following paragraph, where the Court observed that:
The broader controversy surrounding the horizontality of fundamental rights has, in any case, been settled by a Constitution Bench of this Court in Kaushal (supra). Therefore, it is unnecessary to undertake a detailed discussion on the issue in the present case. What is relevant here is that an indirect horizontal application of State-guaranteed rights already exists by virtue of the 2019 Act. The present petition, therefore, is confined to a limited yet significant question, namely, the absence of a grievance redressal mechanism under the 2019 Act, which leaves the petitioner without an effective remedy to address the violations of her rights under the statute. (¶135)
Mediating the constitutional duties of private parties in legislation that explicitly provides for rights and liabilities is a welcome change from Kaushal Kishore. However, the Court has a bare minimum obligation to properly apply the doctrine when it goes out of its way to invoke it. Though the Court does not reference any particular model of indirect horizontality followed in any jurisdiction, it can be gathered that it refers to a very general understanding of the term, as it observed that “by creating statutory obligations for non-state actors, the 2019 Act translates the constitutional promise of equality into a social duty, mandating inclusion beyond State instrumentalities” (¶132).
In its analysis on the statutory obligations, the Court pointed out that the TGA and the TGA rules impose broader negative obligations not to discriminate, as well as positive obligations to provide certain facilities as prescribed by the State (¶139-140). Beyond this, private parties have only one other positive obligation, namely to establish an internal redressal mechanism. But this is about the end of the Court’s analysis on obligations under the TGA.
The Court failed to note anywhere in its judgment that, under the TGA, there is no other obligation or liability. There is no duty to cast upon the private parties to compensate or provide any other remedy for discrimination. So, if the private party fails its obligations relating to discrimination, its liability begins and ends with the redressal mechanism. However, the framework on redressal mechanism is very thin, and all the private party has to do is meet certain procedural requirements relating to the appointment of complaint officers, investigation and deadlines. As for the actual private remedies to be provided by the mechanism, the statutory framework is completely silent on this. Only a central government policy mentions “appropriate corrective remedies” such as counselling, training, disciplinary measures and “any other necessary actions to rectify the situation”.
So, at most, the liability of the private party may extend to either being punished by the internal committee or providing rehabilitation/institutional support, but only after the redressal process. Liability to compensate can, at most, be argued to maybe form part of “any other actions” under the government policy. However, it is to be noted that compensation is a remedy of a very different nature than, say, rehabilitation. The TGA’s framework is very thin compared to the framework of redressal mechanisms in POSH cases, for example, where the legislation explicitly incorporates provisions relating to compensation and other remedies in an elaborate manner. On a side note, the failure to note this is ironic, considering the other half of the judgment is dedicated to a discussion of omissive discrimination by the State, which also includes legislative gaps.
Digressing, the whole point of indirect horizontality is that liabilities and remedies are statutorily mediated. Therefore, when the Court intends to analyse the constitutional duties of the private parties under its self-chosen instrument of indirect horizontality, and used this instrument to answer issues 3 and 4 it is bound to have engaged with an analysis of: 1) whether compensation is a remedy payable under the TGA and 2), upon its findings, if necessary, modify or interpret the law in alignment with constitutional values if it felt that compensation was necessary.
The court did not undertake any such analysis and instead parroted that the schools have a general duty not to discriminate and the duty to set up an internal redressal mechanism, completely glancing past how thin the framework actually is. In other words, the court did not distinguish between obligations imposed by the TGA and the corresponding liabilities emerging from breach of the obligations.
Direct Constitutional Liability
If indirect horizontality is the legal basis for adjudicating the 2nd school’s obligations, and if the court did not analyse whether the TGA provides for compensation, then naturally one wonders how compensation was awarded. Curiously, the Court, after holding that the private parties are mandated not to discriminate due to the TGA (determination of obligation through horizontal effect), the Court abruptly shifted to the question of compensation payable due to the breach of obligation (¶162-164). In answering this question, the Court simply followed the precedent in cases like Jeeja Ghosh to hold that even private parties are liable to pay compensation when there is a violation of a fundamental right, but no other remedy is available (¶172-177).
It was earlier pointed out in this article that compensation payable by private parties under writ jurisdiction is nothing novel. When the court was anyway going to rely on its powers under Article 32, its invocation of indirect horizontality seems unnecessary, especially when it did not bother to differentiate between obligations and liabilities under the TGA. However, there is a far more conceptual problem here. Compensation here is not enforcement of indirect horizontality; instead, it’s actually the enforcement of direct horizontality. Consider the following:
- The 2nd school was found to have violated the fundamental rights of the petitioner in the course of its private dealings.
- The school was held liable to compensate the petitioner for this violation.
- The basis of this liability/ remedy is purely judicial interpretation of constitutional law.
This is a clear-cut case of direct horizontality, wherein actions of private parties are made subject to constitutional law. A counter-argument, in defence of the judgment, might be that compensation was awarded as an extraordinary measure to give effect to the TGA’s substantive rights when the TGA’s own remedial structure failed. However, this is flawed as in indirect horizontality, the Court must interpret or develop the law to give effect to constitutional values and not bypass the statute and award a constitutional remedy directly. Moreover, the Court itself records in ¶176 that the basis of the compensation payable by the school was for violation of fundamental rights (which are horizontally mediated through the statute). This is unlike the compensation payable by the State for its inaction in enforcing the TGA, which actually does relate to failures of the remedial structure. So, the Court ended up operationalising direct horizontality, contrary to its own premise.
Direct/Indirect Horizontality
Two essential characteristics emanate from the “model” of horizontality as used in this case. Firstly, the obligations of a private party towards fundamental rights arise from statutory laws that explicitly impose them. Secondly, the actual liability of the party for breach of its obligation is determined by the court’s discretionary use of its powers under Article 32, with not much regard for the actual statutory scheme. If one is to make sense of this “model”, it can be best understood as the exemplification of some kind of “direct-indirect” horizontality, wherein direct constitutional liabilities are imposed on private actors for breach of statutory obligations that, at some level, are designed to protect fundamental rights.
Beyond the fact that the Court did not frame it this way, this “model” does little to disambiguate Kaushal Kishore. The only disambiguation, if at all, is that the source of obligations stems from statutory law. But this doesn’t matter much when the source of the corresponding liability stems from Article 32’s discretionary powers, through which the Court can pick and choose which obligation to enforce.
This is exemplified in this very case, as the 1st school escaped any liability, as the court could not factually find the school to have committed discrimination. However, the Court found the school guilty of failing to establish a redressal mechanism, yet, interestingly, chose not to impose any liability on the school. The reason for this was that private parties purportedly cannot be expected to follow provisions not enforced by the State (¶159). Apart from the questionable underpinning logic, this has no statutory basis at all; all private establishments, regardless of State inaction, are bound to set up an internal redressal mechanism.
The duties under TGA meant to give horizontal effect to substantive equality are not just negative, but also positive in nature. The private parties are bound not to discriminate and to set up a redressal mechanism under the TGA. The positive obligation of the school exists independent of whether or not it failed its negative obligation. Yet, the Court chose to overlook the 1st school’s violations based on a dubious logical premise.
Conclusion
Jane Kaushik’s choice of operationalising horizontality through indirect horizontality could have been transformative for the Indian horizontal rights discourse. But that would have required the Court to have clear conceptual clarity on the line separating indirect horizontality, the positive duties of the State and its own powers under Article 32. Kaushal Kishore left the operationalisation of horizontality entirely ambiguous, and Jane Kaushik’s choice of doctrine presented the perfect opportunity to remedy the maladies of its predecessor. Instead, the judgment sets up an “indirect model” of horizontality in which the Court will situate obligations within a statute and derive corresponding liabilities from the Constitution. This has a massive bearing on future cases, as the Court can not only selectively determine what an enforceable obligation is, but also sidestep entire statutory frameworks, all in the name of “indirect horizontality”.
