Introduction
In a significant judgment, the Supreme Court (“Court”) earlier this year, in Jane Kaushik v. Union of India & Ors., inter alia, directed a private employer to pay compensation to the petitioner for violating her fundamental rights through unlawful discrimination based on her gender identity. The Court has since dismissed the Union government’s review petition, leaving the judgment undisturbed, and, in doing so, reaffirming its wider significance for the employment rights of transgender persons in India.
In Jane Kaushik v. Union of India & Ors., the petitioner, a trans-woman, alleged that her employment was terminated solely based on her gender identity in two instances by two employers (both being schools located in different States). In the first instance, soon after she joined the first employer’s school, she was subjected to harassment by a co-worker and certain students. However, instead of redressing the petitioner’s grievances, the school compelled her to resign. In the second instance, the petitioner was given an offer letter by the second employer’s school, but after she shared her identity documents for verification, the school revoked the offer as the documents revealed her transgender identity. Neither school had a grievance redressal mechanism as mandated under the Transgender Persons (Protection of Rights) Act, 2019, and the rules under it (“Trans Act”).
The petitioner thus alleged that both schools engaged in unlawful discrimination against her, both by commission (by terminating her employment) and omission (by not providing grievance redressal mechanisms), thereby violating her fundamental rights to equality, dignity, and non-discrimination. It was further alleged that the Union government and the two State governments (where the two schools are located) also violated her fundamental rights by omitting to ensure compliance with the Trans Act – for instance, by not ensuring that establishments appointed a complaints officer and formulated an equal opportunity policy – and, in the case of the State governments, by also omitting to notify rules under the Trans Act, thereby rendering the Trans Act meaningless.
On the evidence, the Court concluded that, while the record did not suggest the first school had engaged in ‘intentional discrimination’1, the second school had clearly engaged in unlawful discrimination against the petitioner. The Court also held that the respective governments had committed omissive discrimination and directed them and the second school to pay compensation to the petitioner.
Additionally, and more significantly, as urged by the petitioner, the Court noted flagrant violations of and widespread non-implementation of the Trans Act by both the State and the private establishments and issued directions to the State by way of a continuing mandamus. Along with the directions, the Court issued several broad, non-binding guidelines addressing deficiencies it identified under the Trans Act. The Court also constituted an advisory committee chaired by retired Delhi High Court judge Justice Asha Menon to look into, inter alia, the following matters under the Trans Act: (i) formulation of an equal opportunity policy; (ii) reasonable accommodation; and (iii) grievance redressal mechanism.
Key Aspects of the Judgment
This judgement is significant in many respects and may have far-reaching implications for all employers in India. We discuss below some key aspects of the judgement that are particularly relevant to private employers.
Compensation for violation of fundamental rights.
The Court held that the fundamental rights to equality, dignity, and non-discrimination have been made enforceable against private establishments2 through the Trans Act, and that the Court can, under Article 32 of the Constitution, direct private establishments to pay compensation to victims of violations of fundamental rights (unlawful discrimination in the present case) in certain ‘appropriate cases’, where no other effective writ remedy is available in a given factual matrix. ‘Appropriate cases’ are those where the violation of fundamental right(s) is gross and patent as to be incontrovertible and ex facie glaring, and where: (i) such a violation is on a large scale, affecting the fundamental rights of a large number of persons; or (ii) it appears unjust, unduly harsh, or oppressive – on account of their poverty, disability, or socially or economically disadvantaged position – to require the person(s) affected to initiate and pursue action in the civil courts.
This remedy is distinct from, and in addition to, the private law remedy for damages for the tort resulting from the violation of fundamental rights.
This is significant because the existing jurisprudence on awarding compensation for violations of fundamental rights predominantly involves the State and its instrumentalities. This judgement, therefore, becomes one of the few instances in which private establishments have been held responsible for such violations and directed to pay compensation to victims. This development is also significant in the context of certain laws, such as the Trans Act and the HIV and AIDS (Prevention and Control) Act, 2017, which do not expressly set out any penalty for unlawful discrimination by establishments.
In the context of employment, the implications of this ruling are that employees may have an additional remedy – beyond those provided under labour laws – to approach the Supreme Court (under Article 32) or the High Courts (under Article 226) for compensation in ‘appropriate cases’, where labour law violations by employers also amount to violations of employees’ fundamental rights. The following are some examples of labour law violations which courts have, in the past, held to be violations of fundamental rights: (i) non-payment of minimum wages and overtime wages; (ii) unsafe or unhealthy working conditions; (iii) denial of maternity benefits; (iv) unlawful discrimination on the grounds of sex, gender identity, or disability; and (v) failure to provide a mechanism to redress complaints of sexual harassment of women. Given the summary and relatively expeditious nature of writ proceedings, this could be a potential avenue for employees to seek recourse. That said, given that all these matters are now governed by specific statutes that provide remedies for non-compliance, it may prove to be more of a theoretical remedy than a practical one.
Expansive reading of ‘discrimination’ under the Trans Act.
Section 9 of the Trans Act prohibits ‘discrimination’ in ‘any matter relating to employment, including but not limited to recruitment, promotion, and other related issues.’ In this context, ‘discrimination’ refers to ‘unfair treatment, the denial of, or termination from, employment.’ The Court interpreted ‘discrimination’ expansively, to include ‘indirect discrimination’ and the denial of ‘reasonable accommodation’ within its ambit.
Reasonable accommodation
Reasonable accommodation in the context of employment means making necessary and appropriate modifications and adjustments, where needed, to ensure that persons with protected characteristics / identities (transgender persons, in this case) can enjoy or exercise all human rights and fundamental freedoms on an equal basis with others, provided that doing so does not impose a disproportionate or undue burden on the employer3.
The Court held that both the State and private establishments are obligated to provide ‘reasonable accommodation’ to transgender persons under the Trans Act, even though the Trans Act does not explicitly provide for it. In the Court’s view, the principle of ‘reasonable accommodation’ is implicit in the Trans Act, having regard to its overall scheme and purpose4.
While the Trans Act already imposes certain positive obligations on private establishments (for example, providing gender-neutral toilets), the Court has now brought omissions by private employers in discharging such obligations (to the extent that they do not impose undue or disproportionate burden) within the scope of ‘discrimination’ under the Trans Act, by correlating such omissions with the anti-discrimination obligations under the Act, and, by extension, rendering them amenable to writ direction.
Indirect discrimination
The Court read the concept of discrimination to include its indirect forms and effects. Indirect discrimination generally refers to discrimination caused by policies, practices, or criteria that are fair in form, but discriminatory in effect.
While the Court discussed ‘indirect discrimination’ in the context of Article 15 of the Constitution, given that, in its view, the Trans Act extends the enforceability of fundamental right to non-discrimination to private establishments, it is likely that courts will construe the term ‘discrimination’ under the Trans Act in similarly expansive terms, so as to include ‘indirect discrimination’. The undefined term ‘unfair treatment’ in the definition of ‘discrimination’ under Section 3 of the Trans Act allows for this kind of reading.
Given this, establishments with transgender employees should consider conducting an audit of their policies and practices to ensure they do not disproportionately impact transgender persons or exacerbate their existing disadvantages.
Directions and guidelines
We set out below some of the binding directions and the non-binding guidelines issued by the Court that may be relevant to private employers.
Directions
i. The State must ensure that all establishments designate a ‘complaints officer’ in accordance with the Trans Act.
ii. The State Human Rights Commission shall act as the appellate authority for transgender persons aggrieved by decisions of the head of an establishment.
iii. The equal opportunity policy issued by the Union government shall apply to all establishments that have not formulated their own.
Guidelines
i. All establishments should provide gender-neutral or gender-diverse washrooms.
ii. All establishments should foster a gender-inclusive work environment that supports the free and stigma-free expression of identity.
iii. Confidentiality regarding an employee’s gender identity must be strictly maintained.
iv. All forms and applications should be updated to include a ‘Third Gender’ or equivalent category.
v. All establishments may create gender-diverse security screening points and sensitize security personnel at such checkpoints.
Concluding Remarks
Since the Court will periodically monitor the State’s compliance with its directions and generally with the Trans Act, we anticipate increased regulatory pressure and heightened scrutiny of private employers’ compliance with the Trans Act.
While private employers can immediately begin compliance, to the extent not already done, a practical approach that some may adopt is to wait and assess the formulations of the Justice Asha Menon Committee and look to implement those. Employers may, however, consider appointing / nominating a complaints officer as per the Trans Act right away. In addition, employers can consider reviewing their recruitment and onboarding processes to make them more gender-neutral and conducting sensitization training for all staff and management to make them better aware of the provisions of the Trans Act.
1 While the Supreme Court did take cognizance of omissions on the part of the first school in complying with the Transgender Persons (Protection of Rights) Act, 2019, it chose not to penalize it for them. The Court reasoned as follows: “We…..as a matter of course cannot expect private institutions to comply with provisions that do not find strict implementation by the State.”
2 The Supreme Court cited Jeeja Ghosh v. Union of India (2016) 7 SCC 761, M.C. Mehta v. Kamal Nath & Ors (2000) 6 SCC 213, & Consumer Education & Research Centre & Ors v. Union of India & Ors (1995) 3 SCC 42 as examples of cases where courts had directed private parties to pay compensation for fundamental rights violations under the writ jurisdiction.
3 For the purposes of this write-up, this definition is borrowed from the Rights of Persons with Disabilities Act, 2016 (RPWD Act). In addition to the aforesaid legislation, the HIV-AIDS (Prevention and Control) Act, 2017 also obligates employers to provide reasonable accommodation to employees living with HIV/AIDS.
4 In Shanavi Ponnusamy v. Ministry of Civil Aviation, 2022 SCC OnLine SC 1581, the Supreme Court categorically directed the Union to devise a policy framework in terms of which reasonable accommodation can be provided to transgender persons.
Author Bio: Vinay Joy, Srishti Ramkrishnan, and Ajay Kranthi are lawyers based in Bengaluru, specialising in labour and employment law and white-collar crime and investigations.
[Ed Note: This piece was edited by Harshitha Adari and Aditi Bhojnagarwala and published by Vedang Chouhan from the student editorial board.]
