Legal Review and Analysis of Jane Kaushik vs Union of India & Ors 2025 INSC 1248

1. Heading of the Judgment

Jane Kaushik vs. Union of India & Ors. (2025 INSC 1248)

2. Related Laws and Sections

The judgment extensively interprets and applies the following constitutional and statutory provisions:

• The Constitution of India:
  Article 14: Right to Equality (including substantive equality and the doctrine of reasonable accommodation).
  Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth (interpreted to include "gender identity").
  Article 16: Equality of opportunity in public employment.
  Article 17: Abolition of Untouchability (interpreted to include social exclusion based on stigma).
  Article 19: Right to freedom (including the right to choose a profession).
  Article 21: Right to Life and Personal Liberty (including the right to live with dignity, privacy, and against discrimination).
  Article 32: Power to issue writs for enforcement of fundamental rights.

• The Transgender Persons (Protection of Rights) Act, 2019:
  Section 3: Prohibition against discrimination in various fields, including employment and education.
  Section 9: Prohibition of discrimination in employment by establishments.
  Section 10 & 11: Obligations of establishments to provide facilities and set up a grievance redressal mechanism via a Complaint Officer.
  Sections 8, 13, 14, 15: Welfare measures to be undertaken by the appropriate Government in education, social security, and health.

• The Transgender Persons (Protection of Rights) Rules, 2020:
  Rule 10: Mandates the formulation of welfare schemes and creation of infrastructure.
  Rule 12: Requires establishments to publish an Equal Opportunity Policy for transgender persons.
  Rule 13: Details the procedure for designating a Complaint Officer and handling complaints.

3. Basic Judgment Details

• Court: Supreme Court of India

• Bench: J.B. Pardiwala & R. Mahadevan, JJ.

• Jurisdiction: Writ Petition (Civil) No. 1405 of 2023 under Article 32 of the Constitution.

• Parties:
  Petitioner: Jane Kaushik, a transgender woman.
  Respondents: Union of India, State Governments, and two private schools (referred to as the First School and the Second School).

• Subject Matter: The petition challenged the alleged discrimination and illegal termination of the petitioner from two private schools on account of her transgender identity, and the systemic inaction by the State in implementing the Transgender Persons (Protection of Rights) Act, 2019.

4. Core Principles and Analysis of the Judgment

The Supreme Court's judgment is a seminal ruling that moves beyond the specific facts of the case to address the systemic failure in protecting the rights of transgender persons. The core of the judgment can be broken down into several key themes.

A. Systemic State Lethargy and Legislative Omission

The Court expressed deep dismay at the "apathetic attitude" and "grossly apathetic" inaction by the Union and State Governments in implementing the 2019 Act and the 2020 Rules. It noted that despite clear statutory timelines and a prior directive from the Supreme Court in Shanavi Ponnusamy v. Ministry of Civil Aviation (2022), the government had failed to create the necessary frameworks. This included the failure to:

• Formulate comprehensive policies for transgender persons.

• Set up Transgender Protection Cells in most states.

• Ensure establishments appoint Complaint Officers.

• Create a Welfare Board for transgender persons.

The Court characterized this not as a simple administrative lapse, but as "omissive discrimination" – a failure to act where a duty exists, which perpetuates the disadvantage of a marginalized community. This legislative and executive omission was held to violate the positive obligations cast upon the State by the Constitution and the 2019 Act.

B. Substantive Equality and the Four-Dimensional Framework

The judgment elaborately expounds on the concept of substantive equality, which goes beyond formal equality (treating everyone the same) to achieve real, on-the-ground equality. The Court adopted Professor Sandra Fredman's four-dimensional approach to substantive equality, embedding it within Indian jurisprudence:

1. Redressing Disadvantage: The State has a positive obligation to take affirmative measures to rectify historical, social, and political disadvantages faced by marginalized groups like the transgender community. The Court emphasized that laws and policies must be designed to lift groups out of systemic disadvantage, not perpetuate it.

2. Addressing Stigma and Stereotypes: The Court strongly condemned the use of popular morality, stigma, and stereotypes in law-making and policy implementation. It reaffirmed that constitutional morality must prevail. Stereotypical assumptions about the transgender community are "patently against the spirit of the Constitution."

3. Enhancing Voice and Participation: Substantive equality requires ensuring that marginalized communities can meaningfully participate in social, economic, and political life. The Court linked this to the rights to freedom of expression and dignity, stating that the ability to participate without fear of discrimination is a reflection of equal citizenship.

4. Accommodating Difference to Achieve Structural Change: The Constitution and the State must facilitate structural changes to accommodate differences. This is achieved through tools like affirmative action and, crucially, reasonable accommodation.

C. The Right to Reasonable Accommodation

The Court authoritatively held that the principle of reasonable accommodation is inherent in the promise of equality under Article 14 of the Constitution. It is not a matter of charity but a positive obligation on the State and private establishments to make necessary modifications that allow disadvantaged individuals to enjoy their rights equally.

While the 2019 Act does not explicitly use the term "reasonable accommodation" like the Rights of Persons with Disabilities Act, 2016, the Court held that this principle is implicit in the statute's positive obligations. It drew parallels with disability jurisprudence to underscore that providing reasonable accommodation is essential for achieving substantive equality for transgender persons, such as through gender-neutral facilities, confidentiality of gender identity, and inclusive policies.

D. Horizontal Application of Fundamental Rights

The Court clarified that the 2019 Act itself operationalizes the horizontal application of fundamental rights. By defining "establishment" broadly to include private entities and prohibiting discrimination by them, the Act directly imposes constitutional obligations of equality, non-discrimination, and dignity upon private actors like the respondent schools. Therefore, the petitioner was entitled to enforce her fundamental rights against the private schools.

E. Analysis of the Specific Discrimination Claims

• Against the First School: The Court, after examining the facts, found that while the school's conduct was not unimpeachable and it had failed to comply with the 2019 Act (e.g., by not appointing a Complaint Officer), the evidence did not conclusively establish intentional discrimination as the reason for her termination. The school had made some attempts to accommodate her and had agreed to re-hire her subject to a test, which the petitioner did not attend.

• Against the Second School: The Court found the Second School's actions to be a clear case of discrimination. The school rescinded its job offer after apparently discovering the petitioner's transgender identity. The Court rejected the school's defense that an offer letter did not constitute employment, holding that Section 9 of the 2019 Act prohibits discrimination even at the recruitment stage.

5. Final Outcome and Supreme Court Directions

A. Compensation

The Court awarded compensation to the petitioner for the violation of her fundamental rights:

• The Second School (Respondent No. 4) was directed to pay Rs. 50,000/- for direct discrimination.

• The Union of India (Respondent No. 1) was directed to pay Rs. 50,000/- for its failure to create redressal mechanisms.

• The concerned State Governments (Respondent Nos. 2 & 3) were directed to pay Rs. 50,000/- each for their inaction.

B. Mandatory Directions for Implementation

Using its powers under Article 142 of the Constitution, the Court issued binding directions to be complied with within three months:

1. Designation of an appellate authority for identity certificates under Rule 9 of the 2020 Rules.

2. Establishment of a Transgender Welfare Board in every State/UT.

3. Setting up of Transgender Protection Cells in every district and at the state level under the District Magistrate and Director General of Police, respectively.

4. Mandatory designation of a Complaint Officer in every "establishment" as defined by the 2019 Act.

5. Designation of State Human Rights Commissions as the appellate forum against decisions of establishment heads.

6. Creation of a dedicated nationwide toll-free helpline for reporting violations of the Act.

C. Constitution of an Advisory Committee

Recognizing the need for expert and stakeholder input, the Court constituted an Advisory Committee chaired by former Delhi High Court Judge, Justice (Retd.) Asha Menon, and including trans-rights activists, academics, and medical experts. The Committee, supported by ex-officio members from various central ministries, was tasked with preparing a comprehensive report and draft policy within six months on:

• A model Equal Opportunity Policy.

• Identifying gaps in the 2019 Act and 2020 Rules.

• Framing guidelines for reasonable accommodation.

• Streamlining the process for gender and name change in documents.

• Formulating inclusive medical care protocols.

6. MCQs Based on the Judgment

1. In Jane Kaushik v. UOI (2025), the Supreme Court derived the concept of "reasonable accommodation" for transgender persons primarily from which constitutional provision?
a) Article 19(1)(g)
b) Article 21
c) Article 14
d) Article 32

c) Article 14. The Court held that the promise of "equal protection of laws" under Article 14 includes the positive obligation of reasonable accommodation to achieve substantive equality.

2. The Supreme Court characterized the government's failure to implement the Transgender Persons (Protection of Rights) Act, 2019, as a form of?
a) Legislative Overreach
b) Omissive Discrimination
c) Judicial Activism
d) Formal Equality

b) Omissive Discrimination. The Court held that the State's inaction and lethargy in creating the mandated frameworks under the Act amounted to "omissive discrimination," as it perpetuated the disadvantage faced by the transgender community.