Supreme Court: In a writ petition filed by a transgender woman seeking direction to the respondents to consider her candidature for the post of cabin crew in Air India, the division bench of Dhananjaya Y Chandrachud and Hima Kohli, JJ. has directed the Central Government to consult the National Council, to devise a policy framework in terms of which reasonable accommodation can be provided for transgender persons in seeking recourse to avenues of employment in establishments covered by the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’). Further, it directed the Central Government to implement the provisions of the said Act in letter and spirit by formulating appropriate policies and to provide clear guidance and enforceable standards to all other entities, including, those of the Union Government, State Governments and establishments governed by the 2019 Act.
In the case at hand, a transgender woman, had sought employment as a member of the cabin crew in Air India, pursuant to an advertisement in the ‘female category’ as no special category for transgender persons was provided. After clearing the preliminary medical examination tests, the petitioner appeared for the group dynamic (‘GD’) and personality assessment test (‘PAT’) which evaluates the candidates on subjective parameters, including overall personality, self-confidence, service aptitude, and sociability. The respondent contended that the petitioner was not selected for the said post due to her inability to score the minimum qualifying marks in the GD and PAT.
The Court took note of National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the Court recognized the fundamental rights of the transgender population, including the right to self-determination of one’s gender as an extension of Article 21 of the Constitution, and held that incidental to their fundamental right to live with dignity under Article 21, is the right of equal access to all facilities to achieve full potential as human beings, including proper education, social assimilation, access to public spaces and employment opportunities.
Further, the Court referred to relevant Sections of the 2019 Act and observed that Section 3(b) stipulates that no person or establishment shall discriminate against a transgender person, inter alia, by giving unfair treatment in, or in relation to, employment or an occupation. Further, Section 9 prohibits discrimination in employment and provides that, no establishment shall discriminate against any transgender person in any manner relating to employment including recruitment, promotion and other related issues.
The Court said that though the immediate contours of the case relate to the civil aviation industry, the issues raised cover a broader spectrum regarding to the formulation of appropriate policies by the government, and the implementation of the provisions of the 2019 Act by all establishments to give effect to the guarantee of non-discrimination embodied in Sections 3 and 9.
The Court also said that transgender persons routinely face multiple forms of oppression, social exclusion and discrimination, especially in the field of healthcare, employment and education. Further, gender stereotypes in the workplace disproportionately impact transgender persons for not subscribing to societal norms about appropriate ‘feminine’ and ‘masculine’ appearances and mannerisms.
Thus, the Court has directed the Union Government to adopt suitable measures after collaborating with the National Council and place a policy on the record before the next date of listing.
The matter will next be taken up on 6-12-2022
[Shanavi Ponnusamy v. Ministry of Civil Aviation, 2022 SCC OnLine SC 1581, decided on 08-09-2022]
Advocates who appeared in this case :
R. Prabhakaran Advocate-On-Record G. Sivabalamurugan, Advocate Selvaraj Mahendran, Advocate C. Adhikesavan, Advocates, for the Petitioner(s);
Sanjay Jain, Advocate Arkaj Kumar, Advocate Akshay Amritanshu, Advocate Tanya Aggarwal, Advocate Yuvraj Sharma, Advocate Kanu Agrawal, Advocate Padmesh Mishra, Advocate Pranay Ranjan, Advocate-On-Record Arvind Kumar Sharma, Advocate-On-Record Amrish Kumar, Senior Advocate K.V. Viswanathan. Advocate Neetca Sharma, Advocate Fauzia Shakil, Additional Solicitor General, for the Respondent(s).
*Apoorva Goel, Editorial Assistant has reported this brief.