Introduction:
The present case, Jane Kaushik v. Lieutenant Governor, NCT of Delhi & Ors., came before the Supreme Court of India as a significant step in the ongoing struggle for recognition and protection of transgender rights in public employment. The petitioner, Jane Kaushik, a transgender woman, approached the Court aggrieved by systemic exclusion from teaching opportunities due to rigid gender categorisation in recruitment notifications issued by the Delhi Directorate of Education and the Delhi Subordinate Services Selection Board (DSSSB).
The dispute arose when teaching posts advertised by the Delhi Government were classified strictly under “male” and “female” categories, effectively excluding transgender applicants. Despite having registered herself as a transgender person on the DSSSB’s Online Academic Registration System (OARS), the petitioner found herself unable to meaningfully apply for such positions. This led her to seek judicial intervention after the Delhi High Court disposed of her petition, directing her instead to approach an Advisory Committee constituted earlier by the Supreme Court.
The Supreme Court, while entertaining her Special Leave Petition, not only issued notice to the concerned authorities but also granted interim relief by permitting her to apply for teaching posts under the transgender category, irrespective of the gender specification in the advertisement. This case is rooted in broader constitutional questions concerning equality, dignity, and non-discrimination, particularly in light of the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.
Petitioner’s Arguments:
The petitioner, Jane Kaushik, advanced a strong constitutional and statutory challenge against the recruitment practices followed by the Delhi authorities. Her arguments were grounded in the principles of equality, non-discrimination, and the right to livelihood under Articles 14, 15, 16, and 21 of the Constitution of India.
Firstly, it was contended that the classification of teaching posts strictly into “male” and “female” categories was inherently exclusionary and violative of the rights of transgender persons. Such a binary framework, the petitioner argued, ignores the legal recognition of transgender identity and effectively bars them from participating in public employment. By doing so, the State authorities were perpetuating discrimination despite the existence of progressive legislation.
Secondly, the petitioner relied heavily on the provisions of the Transgender Persons (Protection of Rights) Act, 2019, which explicitly prohibits discrimination in employment, including recruitment. It was submitted that the Act casts a positive obligation on the State to ensure equal opportunity and fair treatment. The failure to provide a separate or inclusive category for transgender persons in recruitment notifications was thus a direct violation of statutory mandates.
Thirdly, the petitioner highlighted her personal experience of discrimination. She had previously been terminated from two private schools in different States solely on the basis of her gender identity. In 2025, the Supreme Court had already acknowledged this injustice and awarded compensation, recognizing that both the institutions and the respective State authorities had failed to implement the law effectively. This prior judgment, it was argued, demonstrated a continuing pattern of systemic discrimination that required urgent judicial intervention.
Further, the petitioner challenged the approach adopted by the Delhi High Court in relegating her to the Advisory Committee constituted by the Supreme Court. It was argued that the Committee lacked adjudicatory powers and could not grant enforceable relief. Directing her to approach such a body amounted to denial of access to justice and an abdication of judicial responsibility.
Additionally, the petitioner sought broader reliefs, including the creation of separate vacancies for transgender persons, relaxation in eligibility criteria such as age and qualifications, and the formulation of a comprehensive recruitment policy for transgender individuals in government services. These demands were framed as necessary affirmative measures to achieve substantive equality.
Respondents’ Arguments
On the other hand, the respondents, comprising the Delhi Government authorities and DSSSB, defended their actions by relying on procedural and administrative considerations.
Firstly, it was contended that the recruitment process followed existing rules and frameworks, which traditionally classify posts into male and female categories. The respondents argued that any deviation from this structure would require policy-level changes and could not be implemented unilaterally by recruitment agencies.
Secondly, the respondents supported the decision of the Delhi High Court in directing the petitioner to approach the Advisory Committee. It was submitted that the Committee had been specifically constituted by the Supreme Court to address issues concerning transgender rights, including employment policies. Therefore, referring the petitioner to the Committee would ensure a more comprehensive and systemic solution rather than piecemeal judicial orders.
Thirdly, the respondents pointed out that the Advisory Committee was already in the process of formulating a model policy on equal opportunity in employment and education for transgender persons. Interference by the Court at this stage, they argued, might disrupt ongoing policy deliberations and lead to inconsistencies.
Additionally, the respondents emphasized administrative constraints, including the need for clarity in reservation policies, eligibility criteria, and implementation mechanisms before introducing a separate category for transgender persons in recruitment processes.
Court’s Judgment:
The bench comprising Justice J.B. Pardiwala and Justice K.V. Viswanathan delivered an interim order that reaffirmed the constitutional commitment to equality and dignity for transgender persons.
At the outset, the Court expressed its disagreement with the approach adopted by the Delhi High Court. It held that relegating the petitioner to the Advisory Committee was inappropriate, as the Committee did not possess adjudicatory powers. The Court emphasized that judicial forums cannot abdicate their responsibility to decide matters involving fundamental rights by directing parties to non-judicial bodies.
The Supreme Court observed that the petitioner had raised substantial issues concerning discrimination in public employment, which warranted judicial consideration. The existence of an Advisory Committee could not serve as a substitute for judicial remedies, particularly when enforceable rights were at stake.
Importantly, the Court granted interim relief to the petitioner by allowing her to apply for teaching posts as a transgender person, irrespective of the gender category specified in the recruitment notification. This direction ensured that the petitioner would not be excluded from the selection process during the pendency of the case.
The Court noted that a similar relief had been granted earlier during the proceedings before the Delhi High Court, and it deemed it appropriate to continue the same arrangement. By doing so, the Court sought to prevent irreparable harm to the petitioner while the legal issues were being adjudicated.
Further, the Court took cognizance of its earlier judgment in 2025, where it had awarded compensation to the petitioner for wrongful termination by private schools. In that judgment, the Court had highlighted the failure of both institutions and State authorities to implement the provisions of the Transgender Persons Act and Rules. It had characterized such failure as “omissive discrimination,” thereby recognizing that inaction by the State can be as harmful as direct discrimination.
The Court also acknowledged the role of the Advisory Committee headed by Justice Asha Menon, a retired judge of the Delhi High Court, which had been tasked with formulating a model policy on equal opportunity. While appreciating the work being undertaken by the Committee, the Court clarified that its existence does not preclude judicial intervention in individual cases.
By issuing notice to the Delhi authorities, the Court signaled its intention to examine the broader issues raised by the petitioner, including the need for inclusive recruitment policies and compliance with statutory mandates.
Overall, the interim order reflects a balanced approach—providing immediate relief to the petitioner while allowing time for a comprehensive examination of the legal and policy issues involved.