Jane Kaushik vs Union of India; 2025 INSC 1248 - Transgender Persons (Protection of Rights) Act - Right To Participation In Public Life

Transgender Persons (Protection of Rights) Act 2019- Transgender persons also have a right to be reasonably accommodated - the appropriate Government and the “establishments”, have a positive obligation to ensure that there is no discrimination against transgender persons, through affirmative action- The principle of reasonable accommodation is implied in the 2019 Act. (Para 54, 55)

Transgender Persons (Protection of Rights) Act 2019- No transgender or gender diverse person is bound to take permission from their employer to undergo surgical intervention, unless the nature of their work is such that it is based on one’s gender identity. Of course, the employers must be given a reasonable notice, but that should purely be to make the requisite changes and modifications in documents, etc. (Para 192)

Transgender Persons (Protection of Rights) Act 2019- Section 9 -Section 9 prohibits discrimination even in respect of recruitment of a transgender person. (Para 161)

Constitution of India - Article 14 - A promise of equal protection of law would also ensure the promise of reasonable accommodation. It is the responsibility of the State to not deny the equal protection of law. It bears some reiteration that the expression “equality before law” in Article 14 promises formalistic sense of equality, whereas the expression “equal protection of law” guarantees substantive equality. In other words, the promise of Article 14 not only ensures equal treatment of everyone in the eyes of law, but also recognizes that those who are placed unequally would require positive measures to achieve equal protection of laws. (Para 45)

Constitution of India - Article 14,19,21- Participation in public life is an important facet of the right to equality as well. The Constitution considers all the people to be equal citizens. The ability and choice to participate in public and social life without any fear of discrimination and ridicule, is a reflection of the same. (Para 105) right to participation is an embodiment of the constitutional vision of equal opportunity and dignity for all. The said right finds its roots in the right to freedom of expression and is shaped by the constitutional mandate of substantive equality with the end goal of affording the marginalized sections of the society a meaningful life in terms of Article 21 of the Constitution.  (Para 109)

Constitution of India - Part III- When fundamental rights are said to have a vertical effect, they apply only between the individual and the State, thereby, limiting how the State may act towards its citizens. In contradistinction, when rights are understood to have a horizontal effect, they extend to relationships between private individuals or entities, ensuring that constitutional values such as equality, dignity, and non-discrimination are also respected in private interactions, be it in employment, housing, education, or access to public spaces. (Para 131)

Constitution of India - Article 32- a. Article 32 has a very wide ambit, and its power is not merely injunctive, i.e., to prevent violations, but is also remedial, i.e., to address infringements that have already occurred. This is critical because if the Court’s power were limited to preventing violations, it would be powerless once a fundamental right has already been breached. In such situations, to avoid rendering fundamental rights enforcement a “mere lip-service”, the Court has a constitutional obligation to forge new tools and fashion remedies appropriate to the facts of each case. b. One of the key remedies the Court can provide is monetary compensation. It is crucial to note that compensation awarded under Article 32 is a public law remedy and is fundamentally different from a claim for damages in private law. These remedies operate in different legal realms, and the grant of such remedies is also based on different considerations. c. The Court does not grant compensation in every case involving the violation of a fundamental right. It is to be granted in ‘appropriate cases’, especially where the following conditions are fulfilled: (1) there is a breach of fundamental rights, and (2) no alternate remedy is available. [See United Air Travel Services v. Union of India, reported in (2018) 8 SCC 141] Compensation is a powerful tool in such cases, as it ensures that the petitioners’ rights are enforced in a tangible manner. However, if the Court is not convinced of the factum of discrimination itself, then no question of providing compensation will arise. [See S.P.S. Rathore v. State of Haryana & Ors, reported in (2005) 10 SCC 1] d. The grant of compensation is especially important when the petitioners are from disadvantaged sections of society, the “havenots”. e. Courts should exercise their power to grant compensation in petitions under Article 32 with caution, taking into account the specific facts and circumstances of each case. Courts must specifically remain vigilant against attempts to couch what are essentially private law claims in the language of fundamental rights, ensuring that the exceptional compensatory power under Article 32 is not misused as a disguised substitute for ordinary civil remedies. (Para 172)

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