JANE KAUSHIK v. UNION OF INDIA (2025)

Case Details

Case Title: JANE KAUSHIK v. UNION OF INDIA (2025)

Citation: 2025 INSC 1248

SPONSORED

Case No.: WRIT PETITION (CIVIL) NO. 1405 OF 2023

Petitioner: JANE KAUSHIK

Respondent: UNION OF INDIA & ORS.

Date of Judgment: October 17, 2025

Court: Supreme Court of India

Bench: Justices J.B. Pardiwala and R. Mahadevan

Facts of the case

The petitioner, Ms. Jane Kaushik, is a transgender woman, and also a qualified teacher who had completed her studies from various disciplines in a span of four years, from 2016 to 2020, including her diploma, post-graduation and Bachelors. Ms. Kaushik had also undergone her Gender Affirmative Surgery alongside her studies.

This petition arises out of a gender discrimination against her where she has been subjected to discrimination and humiliation in her employment. The petitioner was illegally terminated from two private schools, namely the Respondent no. 4 (the Second School) and the Respondent no. 5 (the first school) respectively, situated in two different States in the span of a year.

1. The First School Incident

In November 2022, after sitting for a selection process, Ms. Jane Kaushik was appointed as a teacher by the First School. During her 8 days of employment, she was subjected to name-calling, harassment and body shaming by her colleagues and staff. When she informed about this to the principal, she was assured that the management will take necessary actions. However, it is her case that the very next day she was said to present her resignation on the grounds that she revealed her identity to one of the students, and on the other hand, the First School while acknowledging her resignation cited that it was due to her poor performance in the subject of Social Science.

The First School had also alleged that the petitioner was an ill-tempered person which is what ultimately came to be the reason of her termination. The termination of the petitioner was reported in the national daily newspapers, and the First School had issued a defamation notice against the petitioner claiming Rs.1 Crore as compensation to which Ms. Jane sent a reply. Afterwards, the petitioner levelled charges of discrimination against the First School.

2. The Second School Incident

Ms. Jane Kaushik was terminated from the Second School which arose out of the situation where she applied for the post of an English teacher through an online advertisement, published by the Second School. Initially, she was offered the position after interviews via video conferencing, and the school had demanded her identity proofs for completion of the requisite formalities. It is her case that as it was subsequently revealed that she was a transgender woman, the school denied her the employment, and she was even denied entry into the school.

The petitioner served a legal notice on the school, to which she did not get any response. On the other hand, the Second School explained that the petitioner would be kept on a probation for a period of one month and after that permanent appointment would be made according to the offer letter. Adding to this the school said that it had issued offer letters to several other candidates also and that the appointment would be made only after all the pre-requisites were met. Also, the Second School had clarified that all the teachers were not appointed from the pool of candidates and further mentioned that no vacancy was available for the petitioner.

3. Exhaustion of Remedies

Ms. Jane Kaushik, for the purpose of redressing her grievances, approached different for a, as the redressal mechanism, which is mandated by the 2019 Act,[1] was not operational. Following her termination, Ms. Jane approached multiple statutory bodies for relief, the NCW took suo motu cognizance, the NCTP received her complaint but gave no reply, and the NHRC closed her complaint on procedural grounds.

The NCW constituted an inquiry committee which, despite finding that the school had no service rules and produced no evidence of due procedure, concluded that no discrimination was made out, primarily because the school had provided her accommodation and cab service. The petitioner objected that the inquiry had focused on her performance rather than investigating gender-based discrimination. Having exhausted all statutory remedies without meaningful relief, she was left with no recourse rather than approaching the Supreme Court under Article 32.[2]

Issues Raised

The Supreme Court framed four issues for decision, which can be summarized as follows:

1. Whether the Indian Constitution and the 2019 Act, including the Rules thereunder, impose a positive duty upon the Union and the States to prevent any kind of discrimination against the transgender persons?
2. Whether the laches and nonfeasance, on part of the Union and State(s) respectively led to the harassment and discrimination against the petitioner?
3. Whether the conduct of the First School and the Second School respectively, including their failure to act, has resulted in discrimination against the petitioner based on her gender identity?
4. If the answer to issues (2) and (3) are in the affirmative, is the petitioner entitled to any compensation?

Contentions

• Contentions presented by the Petitioner

The Petitioner’s counsel submitted that the lack of adequate compliance, enforcement, and implementation of the existing statutes and constitutional provisions, are the reasons that the Petitioner faced discrimination.

Also, the First School and the Second School, have violated the provisions of the 2019 Act and the States (Respondent Nos. 2 and 3), have failed to notify the Rules under Section 22(1),[3] of the Act of 2019. The counsel submitted that the current petition seeks enforcement of the Fundamental rights given under Articles 14,[4] 15,[5] 17,[6] 19,[7] and 21,[8] and statutory provisions like Section 3(b),[9] 3(c),[10] Section 9,[11] and Section 10 read with Section 2(b),[12] of the Act of 2019, that were violated.

He contended the strict and mandatory compliance of the provisions of the TG Act, 2019, and that the constitutional obligations impose both positive and negative duties and the state cannot stay passive when fundamental rights are being violated. He submitted that private unaided schools cannot claim immunity from fundamental rights obligations and they are bound by it. Constitutional duties apply equally to non-state actors as held in “Kaushal Kishore v. State of U.P. and Others”.[13] 

He further cited the “but for” test, defined by the USA’s Supreme Court in Bostock v. Clayton County,[14] wherein a batch of employees were terminated just on the basis of their sex. It was said that the employees and Ms. Jane Kaushik in the Bostock case and in the present case respectively, would not have been terminated otherwise, and it was only “but for” their sex that they were terminated, which constituted sex discrimination.

Further, relying on the “Col. Nitisha v. Union of India”,[15] he submitted that formal equality only says to treat everyone the same, but substantive equality recognizes historic marginalization and demands that the ground realities be accounted for. He argues that Ms. Jane’s case required substantive protection, and that equality also includes an affirmative action along with reasonable accommodation.

• The Social and Economic Perspective

He submitted that the discriminatory acts on the part of the Respondent Nos. 4 and 5 respectively have deprived her of the legitimate means of earning a livelihood amounting to sentencing her with “economic death”, considering that she belongs to a vulnerable and marginalized group of the society. He underlines that the right to self-determination allows everyone to choose their profession. The counsel relied on Article 17, which has a horizontal application, and imposes a positive obligation on all the Respondents to ensure that socially backward individuals, including the transgender community, are treated with dignity.

He further added that compensation may be awarded for violation of fundamental rights by the non-state actors who are amenable to writ jurisdiction, relying on Jeeja Ghosh v. Union of India.[16] He lastly mentioned about the failure of State machineries in protecting the Petitioner’s constitutional rights and implementing the statutory obligations, which ultimately resulted in discrimination against the Petitioner.

• Contentions presented by the Respondent No. 5 (the First School)
  1. 1. The learned counsel for Respondent No. 5 argued on the maintainability of the writ petition under Article 32, stating that the Hon’ble Supreme Court cannot resolve factual disputes in a summary writ proceeding under Article 32. He relied on Sumedha Nagpal v. State of Delhi,[17] to argue that the apex court is not the right forum to examine the evidence and disputed facts in the present case.
     2. He further mentioned that the Inquiry Committee of NCW, already examined the discrimination allegation and found them unsubstantiated and therefore no further interference by the Court was warranted.
     3. He also argued that the Court must refrain from interfering in the present matter because the relation between the School and Ms. Jane Kaushik is that of an employer-employee governed through the Contract of Employment and thus the includes a private contract breach and the same does not touch any public law element.
• Contentions Presented by the Respondent No.4 (The Second School)

1. The Counsel for the Second School argued that an offer letter itself does not constitute a contract of service and the petitioner could not invoke Article 32 merely to enforce an offer letter.
2. Further, relying upon the Satimbla Sharma and Ors. V. St. Pauls Senior Secondary School and Ors,[18] he added that matters like reinstatement, salary arrears, and service conditions fall under the domain of contractual law rather than the constitutional law and thus a writ of mandamus cannot be issued to enforce them.
3. He further submitted that the provisions of the TG Act, 2019, impose a negative duty, rather than a positive duty, on the employers which means that they cannot discriminate but simultaneously they are not bound to appoint transgender candidates over other meritorious ones.

Rationale

1. The Court termed the States’ behavior as a “grossly apathetic attitude” due to their failure in implement the Transgender Persons (Protection of Rights) Act, 2019 and the 2020 Rules, and referred to this failure as “omissive discrimination.”
2. The Court did not find any discrimination on part of the First School but attributed the discriminative environment to state inaction. It found that the Second School had directly discriminated and withdrawn the offer solely on gender identity basis.
3. The apex court also directed the Union, the States, and the Second School, to pay an amount of Rs. 50,000/- each to the Petitioner as compensation.
4. In a significant theoretical breakthrough, the Court held that “reasonable accommodation” is an implied obligation under the TG Act. It forms an aspect of substantive equality under Article 14.
5. The Court ruled that neither public nor private employers could refuse employment based on gender identity.
6. The Court adopted the concept of substantive equality, recognizing that equality implies in both, formal non-discrimination and redressing disadvantage, breaking down stigmas, promoting participation, and considering the difference.
7. The judgment clearly exposed the government’s apathy as no other State, other than West Bengal, Tamil Nadu, and Delhi, has enacted any rules along the lines of the 2020 Rules, and only eleven States have constituted mandatory Transgender Protection Cells.

Defects of Law

1. The first and foremost defect is the implementation of law itself. The specific laws like the TG Act, 2019, and Rules, 2020, exist on paper but largely remain unimplemented across most States. The current judgment acknowledges this but does not prescribe a time-bound enforcement mechanism.
2. The present case revolves around Ms. Jane and so is the judgment. It remains tethered to Ms. Jane’s individual injury, leaving intact the administrative machinery through which such exclusion is repeatedly produced.
3. The judgment awards compensation but does not establish any deterrent consequences for private institutions that discriminate which makes the compliance of laws a voluntary affair.

Inference

1. The present case’s judgment establishes that the equality and non-discrimination principles apply on public and private institutions equally.
2. The judgment represents both a condemnation of bureaucratic negligence and an affirmation of constitutional compassion.
3. The case represents a doctrinal evolution from formal equality to substantive equality.
4. However, the gap between judicial declaration and ground reality remains the central unresolved tension. And without an enforcement architecture, the judgment is at the risk of becoming another celebrated but unenforced constitutional promise.

References

1. Jane Kaushik v. Union of India 2025 INSC 1248.
2. https://indiankanoon.org/doc/109624343/
3. Transgender Persons (Protection of Rights) Rules, 2020.
4. [1] Transgender Persons (Protection of Rights Act), 2019.
5. [2] 32. Remedies for enforcement of rights conferred by this Part.
6. [3] Power of appropriate Government to make rules.
7. [4] 14. Equality before law.
8. [5] 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
9. [6] 17. Abolition of untouchability.
10. [7] 19. Protection of certain rights regarding freedom of speech, etc.
11. [8] 21. Protection of life and personal liberty.
12. [9] Section 3(b): the unfair treatment in, or in relation to, employment or occupation.
13. [10] Section 3(c): the denial of, or termination from, employment or occupation.
14. [11] 9. Nondiscrimination in employment.
15. [12] 10. Obligations of establishments. Section 2(b): defines “establishment”.
16. [13] Kaushal Kishore v. State of U.P. and Others, (2023) 4 SCC 1.
17. [14] Bostock v. Clayton County, 590 US (2020).
18. [15] Lt. Col. Nitisha v. Union of India (2021) 15 SCC 125.
19. [16] Jeeja Ghosh v. Union of India (2016) 7 SCC 761.
20. [17] Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745.
21. [18] Satimbla Sharma and Others v. St. Pauls Senior Secondary School and Others (2011) 3 SCC 760.