Summary
| Category | Data |
|---|---|
| Court | Supreme Court of India |
| Case Number | W.P.(C) No.-001405 – 2023 |
| Diary Number | 47647/2023 |
| Judge Name | HON’BLE MR. JUSTICE J.B. PARDIWALA |
| Bench |
HON’BLE MR. JUSTICE J.B. PARDIWALA HON’BLE MR. JUSTICE K.V. VISWANATHAN |
| Precedent Value | Binding authority on fundamental‐rights duties of non-state actors under the Transgender Persons Act and on grant of compensation under Article 32 |
| Overrules / Affirms | Affirms NALSA v. Union of India; Shanavi Ponnusamy v. Ministry of Civil Aviation |
| Type of Law | Constitutional law; anti-discrimination law |
| Questions of Law |
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| Ratio Decidendi | The Transgender Persons (Protection of Rights) Act, 2019 (and 2020 Rules) imposes both negative and positive duties on governments and “establishments” (including private bodies) to prevent discrimination on the grounds of gender identity, to set up grievance‐redressal mechanisms and to publish equal‐opportunity policies. Legislative or administrative omissions constitute actionable discrimination, empowering courts under Articles 32/226 to award compensation when no alternative remedy exists. The doctrine of substantive equality—including reasonable accommodation—grounds these obligations. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon |
|
| Facts as Summarised by the Court | The petitioner, a transgender woman, was hired and then forced to resign by two private schools after her gender identity became known and she faced harassment. She sought enforcement of her fundamental rights and statutory protections under the 2019 Act but found no functional grievance redressal mechanism at State or institutional level. After adverse findings by the NCW’s Inquiry Committee, she petitioned the Supreme Court for relief under Article 32. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All courts, government agencies and “establishments” under the Transgender Persons Act, including private bodies |
| Persuasive For | High Courts and tribunals interpreting anti-discrimination duties under constitutional and statutory law |
| Overrules | None |
| Distinguishes | St. Mary’s Education Society v. Rajendra Prasad Bhargava (no public‐law duty where private contract alone at stake) |
| Follows | NALSA v. Union of India; Shanavi Ponnusamy v. Ministry of Civil Aviation; Rudul Sah v. State of Bihar |
What’s New / What Lawyers Should Note
- The 2019 Act and 2020 Rules impose enforceable positive duties on private “establishments” (per Section 2(b)) to prevent discrimination and provide reasonable accommodation.
- Every “establishment” must designate a complaint officer (Section 11; Rule 13) and publish an equal-opportunity policy (Rule 12) within statutory timelines.
- Courts can grant monetary compensation under Article 32 for State or non-State omission to fulfil fundamental‐rights obligations, including failure to operationalise grievance mechanisms.
- Legislative or administrative inaction (relative omission) on mandated duties—such as framing rules, policies or redressal cells—constitutes actionable discrimination.
- Directions to set up Transgender Protection Cells (Rule 11), a national helpline, and an Advisory Committee under Article 142 ensure structural reform.
Summary of Legal Reasoning
- Constitutional mandate of substantive equality: Articles 14, 15 and 21 require both non-discrimination and positive measures (reasonable accommodation) to redress historical disadvantage.
- Reasonable accommodation subsumed: Statistical and structural barriers implicate positive obligations on State and private actors; implied in Articles 14/15 and statutory schemes (RPwD Act, 2019 Act).
- Statutory duties under 2019 Act/2020 Rules: Sections 3, 9–11 and Rules 10–13 horizontally bind all “establishments” to prohibit discrimination, implement grievance cells, publish equal-opportunity policies and ensure welfare measures.
- Legislative omission is discriminatory: Absolute omission (no rules) and relative omission (rules exist but not enforced) violate the right against discrimination—judicial intervention remedies these gaps.
- Remedy of compensation: Under Article 32, courts have power to award public-law compensation for gross, incontestable breaches of fundamental rights when no alternate remedy suffices.
- International jurisprudence: Canadian, US and EU precedents on reasonable accommodation inform a purposive approach to substantive equality and duty to remove systemic barriers.
Arguments by the Parties
Petitioner:
- State’s failure to implement the 2019 Act and Rules led to discrimination by private schools.
- Sections 3, 9, 10, 11 and Rules 10–13 create mandatory duties on governments and establishments.
- Fundamental‐rights violations (Articles 14, 15, 17, 19, 21) warrant both structural reform and compensation.
- Compensation under Article 32 is available against both State and private actors for breaches of constitutional and statutory obligations.
Respondent No. 5 (First School):
- Allegations of discrimination and defamation are contested; fact finding is required, not summary writ relief.
- As a private unaided school, disputes over employment contractual terms lack public‐law element; writ interference would amount to adjudicating private contracts.
Respondent No. 4 (Second School):
- Offer letter is not a binding contract of service; mandamus to enforce employment contract is impermissible under public‐law writ jurisdiction.
- Sections 3(b) and 9 cast negative duties not positive obligations to appoint every candidate; no statutory right to appointment flows from an offer letter alone.
Factual Background
The petitioner, a transgender woman and trained teacher, was appointed and then terminated by two private schools within months of medically transitioning. She faced name-calling, body-shaming and was forced to resign after disclosing her identity. Despite media coverage and NCW’s suo motu inquiry, no institutional grievance mechanism was available under the 2019 Act. After exhausting local forums, she invoked Article 32 seeking enforcement of her fundamental‐rights and statutory protections under the Transgender Persons Act.
Statutory Analysis
- Section 3 (Prohibition of discrimination): Comprehensive ban on discrimination in education, employment, healthcare, public accommodations, housing, movement, public/private office.
- Section 9–10 (Employment): Prohibits discrimination in recruitment, promotion and related issues; mandates prescribed facilities.
- Section 11 (Grievance Redressal): Requires every establishment to designate a complaint officer and establish enquiry/timeline procedures.
- Section 8 (Welfare by government): Positive duties to formulate and implement welfare measures, integration into mainstream society.
- Sections 13–15: Mandates inclusive education, social security schemes, health services (including post-SRS care, HIV centres, medical curriculum revision).
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Section 22: Empowers government to frame Rules; Central Government enacted 2020 Rules, prescribing:
- Rule 10: Welfare Board, policy reviews, anti-discrimination measures, infrastructure.
- Rule 11: Transgender Protection Cells at district/state level, prosecution monitoring.
- Rule 12: Equal Opportunity Policy, safe workplace, unisex facilities.
- Rule 13: Complaint Officer designation, enquiry/report/action timelines.
Procedural Innovations
- Continuing mandamus: Ongoing judicial supervision of State/UT compliance with statutory obligations and directions.
- Mandatory grievance cells: Transgender Protection Cells in each district and police jurisdiction.
- National helpline: Toll-free number for reporting violations, integrated with Protection Cells.
- Advisory Committee under Article 142: Multi-stakeholder body to draft model equal-opportunity policy and recommend further reforms.
Alert Indicators
- ✔ Precedent Followed – Upholds NALSA and Shanavi Ponnusamy mandates on positive duties and reasonable accommodation.
- 🚨 Breaking Precedent – Confirms horizontal duty of non-state actors under 2019 Act and awards compensation against private entities under Article 32.