A CRITICAL ANALYSIS OF LEGAL AVENUES FOR TRANSGENDER EMPOWERMENT IN INDIA BY - SWETA KUMARI & ADITYA GUPTA
A CRITICAL ANALYSIS OF LEGAL
AVENUES FOR TRANSGENDER EMPOWERMENT IN INDIA
AUTHORED BY - SWETA KUMARI &
ADITYA GUPTA
ABSTRACT
Transgender individuals in India have
long faced marginalization, isolation, exploitation, discrimination, and
exclusion. Despite being a large democracy with a constitution that guarantees
justice, equality, liberty, and non-discrimination based on sex, as well as
rights against exploitation and the right to life, the transgender community
struggles to fully access these rights. Although the Indian Government has
taken steps towards their upliftment, such as the Transgender (Protection of
Rights) Act, 2019, and various supportive schemes, and despite the empathetic
stance of the judiciary, exemplified by the landmark NALSA v. Union of India
[(2014) 5 SCC 438] case, transgender individuals still face significant
challenges, including discrimination, abuse, and violence.
This paper aims to critically analyze
the condition of the transgender community in India, focusing on constitutional
and statutory provisions. It will explore the historical context from the
Mughal era through the British period to identify the root causes of their
continued suffering even after post-independence. Furthermore, it will examine
the contemporary situation, highlighting the persistent obstacles in employment
despite a 57.06% literacy rate and unequal treatment in education, health, and
security. The paper will also delve into the constitutional rights of
transgender individuals and provide a critical analysis of the Transgender
(Protection of Rights) Act, 2019. Finally, it will assess the role of the
Indian judiciary in recognizing and supporting the transgender community
through various judicial pronouncements.
KEYWORDS: Transgender, Empowerment,
Constitution, Equality, Discrimination, Judiciary.
1.
INTRODUCTION
Transgender individuals are those
whose innate sense of gender does not align with the gender assigned to them at
birth. This Transgender community includes individuals who identify as transmen
and transwomen. Transwomen are individuals who were assigned as male at birth
but have undergone gender-corrector surgery to express their feminine identity,
while transmen are individuals assigned female at birth who have transitioned
to a masculine identity through similar procedures. Various terms such as
Hijra, Kinnar, and Arvani are used to describe transgender individuals, though
they often face social stigma, discrimination and always viewed as unacceptable
parts of society. Regrettably, they are marginalized and subjected to
exploitation due to societal biases surrounding gender identity.
This paper will focus on transgender
people and the author will critically analyse the legal avenues that are
available to them. For this, the author will look at the history of this
community starting from old Hindu mythology, through the Mughal era, and lastly
up to British rule in India.
The author will discuss the different
spheres of discrimination faced by transgender people in the contemporary
period. These people are discriminated against in the fields of education and employment.
They are not able to avail quality health services and they also feel insecure
in society which raises their security concern.
The author will also analyse the
fundamental rights of the Indian Constitution which are available to all
irrespective of gender identity. Fundamental rights related to equality,
freedom, life, liberty, and the right against discrimination and exploitation
are also given to the transgender community.
This paper will also critically
anlayse the Transgender Persons (Protection of Rights) Act, 2019. Under this,
the author will try to find out the major loopholes of this act that will
hinder the upliftment of this community.
At last, the author will discuss the
role played by the Indian Judiciary in protecting and uplifting the transgender
community. The author will through light on some of the major judgments of the
Supreme Court that majorly affect the transgender community.
2.
HISTORICAL
BACKGROUND AND UNDERLYING FACTORS OF TRANSGENDER RIGHT EVOLUTION
Transgender individuals have a rich
historical presence in India, dating back to ancient Hindu mythology and
continuing through the Mughal period. During these times, they held a respected
position in society. However, with the advent of British colonial rule, their
status began to decline. Despite their longstanding presence in Indian
civilization, they are now often marginalized and stigmatized in contemporary
society.
The historical evolution of
transgender people is discussed below:
2.1. Transgenders
in Hindu mythology
India is regarded as one of the
world's most diverse nations, with a wide range of customs, castes,
ethnicities, religions, and usage. The fact that these cultures,
customs, castes, traditional usage, and social norms persist in
today's world is fascinating since they have long served as symbols of the
habits and behaviors that were prevalent in that ancient period.
In the ancient Vedic period,
Sanskrit, the world's oldest language, divided gender into three categories:
purusha-prakriti (male), stri-prakriti (female), and tritiya-prakriti (third
gender).[1]
This third category, also known as "napu?sakali?ga," encompasses
individuals who are neither masculine nor feminine but carry a mixture of
physical, mental, and psychological characteristics and, lacking the capacity
for procreation[2] and
possess a distinct identity. In the revered Hindu epic "Ramayana,"
during Lord Rama's exile, a group of individuals, identified as transgenders,
remained devoted to him in the forest.[3]
Impressed by their loyalty, Lord Rama bestowed upon them the authority to bless
individuals auspicious occasions. The epic “MAHABHARAT” carries two major
instances of transgender people—one, Aravan, and two, Shikhandi. Aravana was the son of Arjuna and Ulupi
(Nagakanya), who was prepared to sacrifice his life to goddess Kali in order to
ensure the Pandavas' triumph in the Kurukshetra battle. But he wanted to spend
his last night as a married man, knowing that he would pass the next day. No
woman was ready to marry him. So, Lord Vishnu transformed into a lady named
“Mohini” and married him. Thus, the Tamil Nadu Hijras refer to themselves as
Aravanis and view Aravan as their ancestor.[4] In addition, Princess Amba had pledged herself
to take revenge on Bhishma for kidnapping her and refusing to marry her. Amba
changed her sex to become Shikhandi when she was reincarnated as Shikhandini.[5] When Shikhandi appeared in Arjuna's chariot
and helped Arjuna kill Bhishma with his arrows, Bhishma dropped his weapons in
recognition of Shikhandi as Shikhandini during the Kurukshetra War and refused
to fight with a "woman." Thus, Shikhandi's character proved essential
to the Pandavas' triumph.[6]
Furthermore, Jain literature discusses the concept of "psychological
sex," emphasizing an individual's psychological makeup over their sexual
characteristics.[7]
2.2. Mughal
period
During the medieval period (15th to
19th centuries), transgender individuals, particularly Hijras or Eunuchs, held
considerable influence, particularly under the rule of Muslim leaders in the
Mughal Empire.[8] These
rulers demonstrated notable generosity towards them. Hijras played various
significant roles such as political advisers, administrators, managers,
guardians of harem,[9] and even
wielded authority as tax collectors.[10]
Due to their reputation as being clever, trustworthy, and highly dedicated, as
well as their unrestricted access to all areas and demographic groups, they
played a significant role in the legislative matters of the Mughal era and had
been awarded many times because of their close relations with both the King and
Queen. Their presence was also found at Muslim religious institutions, i.e.,
Macca and Madina, as protectors of that site. During those periods, they were
also known as Hijra, Kothis, Jogappas, Shivshakti, Khwaja Sara, Eunuchs, and
Aravani.[11]
The Mughal period marks the beginning
of their declining conditions as they were posted at the job of lower categories
like guarding Herems, keeper of the bed, etc. Being a harem guard or keeper of
the bed does not seem like a prestigious job, and hence, their conditions
started deteriorating.
2.3. British
time
During the early British colonial
period, transgender individuals in the Indian subcontinent received protections
and privileges from various Indian states. These privileges included land
grants, food provisions, and monetary assistance from local agricultural
households. However, the British administration revoked these privileges,
citing that the land was not passed via blood relations.[12] Witnessing transgender individuals holding
esteemed positions in the Mughal royal court, the British expressed disdain and
subsequently embarked on efforts to criminalize and deprive them of their basic
freedoms and civil rights. This led to the enactment of the Criminal Tribes Act
of 1871, which categorized transgender individuals engaged in certain
activities such as kidnapping, infant mutilation, and public performances as
criminals, subject to immediate arrest. Additionally, the British-drafted
Indian Penal Code of 1860 included Section 377,[13]
akin to the British Buggery Act of 1533, criminalizing non-procreative sexual
behaviors. While not explicitly targeting transgender individuals, Section 377
had a significant impact on them as a marginalized group, contributing to their
societal persecution.[14]
3.
DISCRIMINATION
ENCOUNTERED BY TRANSGENDER PEOPLE IN THE CONTEMPORARY PERIOD
After India gained Independence in
1947 one of the initial actions done by the government was to repeal the Criminal Tribes Act, 1871 which categorized Transgender
as criminals. Despite being abolished in 1952, the Act's
legacy continues with several local laws reflecting prejudices
against certain tribes, like the Hijras, Eunuchs, Kothis, etc. Like the Criminal Tribes Act, 1871, the
Karnataka Police Act, 1964 was also amended in 2012 to "provide
for registration and surveillance of Hijras who indulged in the kidnapping of
children, unnatural offences and offenses of this nature" (Section
36A)[15].
Society is considered
one of the most important places for the survival of human beings. Transgender
people are most vulnerable to discrimination in society because of their non-binary
character. Transgender individuals encounter discrimination in many
aspects of their lives due to their non-conformity to societal gender norms. It
is seen that every transgender person has experienced physical, sexual, and
verbal abuse at least once in their lives. The main cause of this kind of
prejudice and violence against them is because of the transphobia which
exists in society. Transphobia is basically the Hatred, disbelief, dread, fear,
or mistrust that exists toward transgender people. Today, these social and ideological
changes exist in Indian society because of their attribute to British
colonial rule. Some of the areas where transgender people still
face abuse are:
3.1. Education
Formal education which
is considered a fundamental right of every person, is not getting equally implemented
on the ground for all classes of genders. The Universal Declaration of Human Rights states that “Everyone
has the right to education. Education shall be free, at least in the elementary
and fundamental stages. Elementary education shall be compulsory. Technical and
professional education shall be made generally available and higher education
shall be equally accessible to all on the basis of merit”. But, Transgender individuals are among those who face lots of
discrimination in reality. As per the 2011 Indian Census report, the
percentage of literate transgender individuals was 56.07%, whereas the overall
population's literacy rate was 74%.[16] According to the NCRB report, the reason for their lower literacy
rate is that they left school due to fear of being judged, discriminated and harassed
by peers and teachers. This ultimately results in less participation of transgenders
in higher education. The expert committee on the
issues related to transgender persons on 20th October 2014 directed all the universities operated through UGC to
include a column for transgender persons in the application form.
3.2. Employment
Employment is
considered most important for the survival and livelihood of human beings. Article
16 of the Indian Constitution guarantees that “No citizen shall, on grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of them,
be ineligible for, or discriminated against in respect of, any employment or
office under the State.”[17] This article provides that the state
cannot discriminate against any citizen on the grounds of sex (i.e. transgender)
in public employment. The government through major initiatives of the 11th
Five-Year Plan also provides employment opportunities to transgender
individuals through Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA). Despite, these schemes and fundamental rights transgender people
still face difficulties in obtaining suitable employment and the work of their
choice. As a result, they end up in the work as prostitutes, begging, and
dancer in bars.[18]
3.3. Health
services
Health issues pertaining to
transgender individuals are not at the top of the government's priority list.
Transgender individuals encounter significant disparities in health status
globally and encounter obstacles in obtaining suitable medical treatments. When
it comes to HIV infections, transgender individuals are more vulnerable to
sexual assault and harassment as compared to other general populations. The
likelihood of experiencing mental health problems, which frequently lead to
depression and an increased propensity to suicidal attempts, steadily
rises.
Healthcare professionals
discriminated against transgender populations, and many health insurance programmers refused
to pay for transgender-related services. The incidence of HIV prevalence among
trans people was 8.82% in 2015–16, according to the National AIDS Control
Organization (NACO), the second highest among high-risk categories[19].
In order to improve transgender people's access to social, legal, and health
services, the government came up with the ‘Pehchan’ project initiative
works within 18 Indian states. [20]
3.4. Security
Transgender people often face
discrimination in accessing security. Because of their identity, they are more
vulnerable to violence such as sexual assault, physical abuse, and other forms
of violence. The number of violent crimes against these individuals is even
higher because many of them go unreported. Statistically, "52% of
[transgender people] are facing harassment from the police. 70.3% are not
confident to face the police, and 96% do not raise complaints against violence
because of their gender identity."[21] The
majority of the violence they experience comes from their own friends,
family, and partners. The government gathers NCRB data each year that
demonstrates crimes against persons, however offenses against transgender
people are not specifically mentioned.
4.
CONSTITUTIONAL
PROVISIONS
The Indian Constitution is not biased
against this community. Both the Preamble and the Constitution of India,
consider everyone equal and declare that "We, the people of
India..." own the country and its laws. It not just
includes certain groups of people but transgenders also. The preamble is
also known as the soul of the constitution and it promises “Equality” to
all its citizens; “Justice” (for social, economic, and political matters); “Liberty”
of thought, and expression; and “fraternity” which will ensure the
dignity of individuals.
Following are gender-neutral and
equal status granting provisions to all its citizens of India:
4.1. Right
to equality
Every person in India has been
given equal protection under the law and equal status before the law.[22] Here,
"any person" refers to any individual without distinction on
the basis of caste, creed, religion, sex, or any other characteristic. In
India, a transgender person is included under the definition of "any
person" and has the same status as that of all cisgender people.[23]
4.2. Equality
of opportunity and right against all forms of discrimination
The keyword with regard to the
protection of transgender under articles 15, and 16 is the term
"sex" which plays a crucial role in protecting transgender from discrimination.
It says “No citizen shall be discriminated
on grounds of religion, race, caste, sex, place of birth or any of them, at any
shops, public restaurants, hotels and places of public entertainment, etc.”[24]
“No
citizen shall be discriminated on the grounds
of religion, race, caste, sex, descent, place of birth, residence or any of
them, for employment or office
under the State.”[25]
The Supreme Court in the landmark
case noted that biological attributes and gender are two separate aspects
of “sex”. Genitalia, chromosomes, and secondary sexual features are examples of
biological characteristics; but, gender attributes include a person's
self-perception, a strong psychological or emotional sense of sexual identity,
and character. "Sex" refers to a wider range of individuals not only
biologically male or female but also include those who consider themselves
neither male nor female.[26]
4.3. Fundamental
freedom
Article 19 gives “Protection of
certain rights regarding freedom of speech, etc.— (1) All citizens shall have
the right— (a) to freedom of speech and expression”[27],
By availing this right transgender can easily express themselves in whatever
way they want such as by wearing sarees, putting makeup on their face and the
way of talking, etc.
4.4. Right
to life
The fundamental right to life under Article
21 includes the right to live with human dignity and all those which are
included under this, namely the bare necessities of life[28].
This Article covers and protects this feature as it represents the most
fundamental human right i.e. the right to life which the State must safeguard
against infringement. One of the most crucial features of Article 21 of the
Indian Constitution is the right to have a dignified life for the
transgender communities. Their right to dignity is upheld when their gender
identification is acknowledged, and it is violated when it is not. They are
free to express themselves and go about their lives fearlessly. Furthermore, the
right to reputation is also included under this provision.[29]
In contemporary culture, transgender people are rarely treated with respect;
instead, they are frequently ridiculed and physically assaulted by powerful
individuals, which has damaged their standing and diminished their importance.
4.5. Right
against exploitation
Many cruel actions, such as human
trafficking and begging, are considered crimes and are prohibited by the Indian
Constitution. Article 23 broadly, covers
all forms of discrimination.[30] Every
individual has the right to personal development, but this can only be
guaranteed through laws that protect them from exploitation and foster a
free and secure environment for them. Transgender persons are the biggest
victims of exploitation because of their lower status in society, which leads
them to participate in prostitution and other immoral activities. They are also
frequently seen as social outcasts. This article aims to safeguard the
independence of an individual identity by resisting the exploitation of men by
other men.
5.
CRITICAL ANALYSIS
OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
For the first time in 77 years of
independence, the Indian Parliament has seen a bill concerning the rights of
transgender individuals. The Right of Transgender Person Bill, 2014 was
presented as a private member's bill by parliamentarian Tiruchi Shiva. Although
it was approved by the Rajya Sabha, there was no debate on the bill, and it is
currently awaiting consideration in the Lok Sabha. Meanwhile, a petition was
submitted to the Supreme Court of India advocating for the rights of
transgender individuals. The Supreme Cout of India in the case of National Legal Service Authority v. Union of India[31]
has directed “the government to frame legislation on the rights of transgender
people, and in pursuance of these directions, the government has appointed an expert
committee in August 2013 and that committee has submitted their report in
January 2014”. According to the report, the Indian government introduced the
Transgender Person (Protection of Rights) Bill, 2016 (Bill No. 210 of 2016), in
August 2016.[32]
However, this bill received criticism from numerous activists, legal
professionals, and particularly from members of the transgender community due
to its perceived backward provisions. Subsequently, in September 2016, the
government referred this bill to the Standing Committee, which then presented
its report in July 2017.[33]
As a result, a new version of the bill was introduced by the Minister of Social
Justice and Empowerment and passed by both houses of the parliament on 26
November 2019 and came into effect on 10 January 2020.
The Transgender Persons (Protection
of Rights) Act, 2019 was approved by Parliament without undergoing any
discussion or debate. The Act largely ignored the recommendations put forth by
the majority of the Standing Committee, and the government also overlooked the
Supreme Court's verdict in the National Legal Service Authority v. Union of
India[34]. There
are many problems associated with this act. These are:
5.1. Inclusion
of intersex with transgender
This legislation classifies two
categories under the umbrella of transgender: transgender individuals and
intersex individuals. The former refers to those whose gender identity differs
from the one assigned to them at birth, encompassing both trans men and trans
women.[35] The
second group includes persons with intersex variation, genderqueer, and persons
having such socio-culture identities as Kinner, Hijra, Aravani, and Jogta.[36] In
this legislation, an intersex individual is grouped under the transgender
category, which raises concerns as it overlooks the distinct identity of
intersex individuals. Research indicates that when intersex people are merely
considered a subset of transgender, their specific needs are often neglected or
marginalized. Therefore, it's problematic to conflate intersex and transgender
identities, as they may not necessarily align, and both deserve recognition in
their own right.
5.2. Identity and certificate
The legislation acknowledges transgender identity by authorizing District
Magistrates to issue certificates confirming gender identity. Section 5
stipulates that transgender individuals can obtain identity certificates by
submitting applications to the appropriate authority, typically the District
Magistrate.[37] According
to Section 6 of the act, the District Magistrate is obligated to issue identity
certificates after adhering to the prescribed procedure.[38]
This act falls short in outlining the procedures for District Magistrates to
follow when issuing identity certificates, highlighting a significant
deficiency. The absence of these procedures underscores the insufficiency of
the legislation.
Before obtaining an amended
certificate, applicants must acquire a surgical certification from the Chief
Medical Officer or Medical Superintendent of the facility where the surgery was
conducted.[39] The
District Magistrate can issue the revised certificate only after confirming the
accuracy of the Chief Medical Officer's certification. Consequently, the Act
entails an implicit and indirect screening process for transgender individuals
before they can receive their certificates.
This section implies that the
government considers the gender binary as the standard, requiring individuals
who don't conform to this system to obtain a certificate to legally identify as
transgender. In Justice (Retd) K.S.Puttaswamy v. Union of India,[40] it
was further noted that “the right
to privacy protected the freedom to make intimate decisions regarding
personhood and autonomy, decisions that brooked minimum interference from the
state.” The Indian
Constitution's Article 21, encompassing the right to life and personal liberty,
includes the right to privacy as a fundamental aspect.[41]
This foundational principle should not be undermined by discriminatory
provisions favoring one group over another. Requiring transgender individuals
to obtain a recognition certificate from the District Magistrate may potentially
compromise this essential notion.
5.3. Right
of residence
Section 12(1) of the act states “No
child shall be separated from parents or immediate family on the ground of
being a transgender, except on an order of a competent court, in the interest
of such child.”[42]
This provision deprives children of their right to decide which community
they want to be a part of. In certain cases, children may face harassment or
abuse from their parents or family members, compelling them to seek refuge with
the transgender community or in other safer environments.
The act includes a provision for
establishing rehabilitation centers. However, mandating a transgender
individual to reside in such a center would constitute involuntary detention
and inadvertently violate their fundamental right to personal liberty
guaranteed under Article 21.[43]
5.4. Inadequate
representation
Section 16 of the Act establishes the
National Council for Transgender Persons, comprising only five representatives
from the transgender community. This raises doubts about the council's
credibility and effectiveness in serving transgender individuals. Section 17
outlines the council's role, which is purely advisory. Although the provision
mentions addressing complaints from the transgender community, the council
lacks the authority to do so. Granting the council the power to utilize civil
court powers could empower it to meet the community's needs effectively.
Currently, it stands as a symbolic gesture without substantial strength or
potential.
5.5. Less
penalty
The existing legislation implies that being transgender is
considered abnormal while being cisgender is seen as the standard.[44]
Section 18 of the act stipulates a penalty of six months imprisonment,
extendable to two years, along with a fine for instances of sexual and physical
abuse against transgender individuals.[45]
For cis-gender individuals, both the Indian Penal Code and the recently enacted
Bhartiya Nyaya Sanhita, 2023, offer more stringent provisions compared to this
act. While physical abuse may harm the body of the victim, sexual abuse is
described as damaging the very essence of a person's being.[46]
Hence, the act enforces discriminatory treatment by imposing varying
punishments based on binary and non-binary identities, which also violates Article
14 of the Indian Constitution.
5.6. No reservation for transgenders
With time, reservation transformed
from being an exception to becoming an integral part of equality.[47] Section
13 mandates educational institutions to offer inclusive education to transgender
individuals.[48] The
Supreme Court in the case of National Legal Service Authority vs Union of
India,[49] has
considered the transgender community as part of the socially and educationally
backward class, instructing the government to grant reservations in both
education and employment. However, Section 13 solely addresses the provision of
inclusive education, lacking any provisions for reservation for the transgender
community. Consequently, the Transgender Persons (Protection of Rights) Act,
2019, requires resolution of these issues.
6.
ROLE PLAYED BY THE
INDIAN JUDICIARY
In recent years, the Indian judiciary has played a
pivotal role in safeguarding and advancing the rights of transgender
individuals. Through interpretation and enforcement of constitutional
principles, the judiciary has strived to guarantee equal rights and
opportunities for all citizens, regardless of gender identity.
It was in the year 2001 when the writ
petition was filed in the case of Naz
Foundation v. Government of NCT
of Delhi and others[50]
in the High Court of Delhi for the constitutional validity of Section 377 of
the Indian Penal Code, 1860. Section 377 criminalizes the consensual sexual act
of adults in private[51]
and it was argued that the said provision was in contravention of the right to
equality[52], the right
against discrimination,[53] and
the right to life and liberty[54] of
the Constitution of India. The high court ruled that section 377 infringes upon
the rights stated above, which are guaranteed by articles 14, 15, and 21 of the
Indian Constitution, respectively. The court also emphasized that the fundamental
rights of the people cannot be restricted on the basis of public morality or general
prevailing consensus in society. This decision was widely welcomed and
appreciated by the LGBTQA+ community all over the country. The judgment made a positive
impact all over India and many people came out in society as lesbian, gay,
bisexual, and transgender.
But soon after this decision, Suresh
Kumar Kaushal who was an astrologer approached the Supreme Court against the judgment
of the high court in the case of Suresh Kumar Koushal and another v. Naz
Foundation and others[55].
The Supreme Court in this case has struck down the decision of the Delhi High
Court. The court held, “Section 377 does not criminalize a particular person
or identity or orientation. It merely defines certain acts which is if
committed would constitute an offense. Such a prohibition regulates sexual
conduct regardless of gender identity and orientation.”
The Supreme Court gave the most
important verdict on the rights of transgender people in 2014. The National
Legal Service Authority, a statutory body established under the Legal Service
Authority Act, 1987, filed a writ petition advocating for the rights of the
transgender community in the case known as National Legal Service Authority v.
Union of India.[56] In response to this petition, the
Supreme Court constituted an “Expert Committee” to identify and solve the problems
related to the transgender community. The committee has made a number of
exhaustive recommendations after due research. The Supreme Court has accepted almost
every recommendation of the committee.
The NALSA Judgment is significant for
the transgender community in many ways. These are:
I.
The
Court for the first time legally recognized the non-binary gender in India.
II.
The
Court has upheld the following fundamental rights of the transgender community-
a. Right to life and liberty[57]
also include the right to dignity. The court has integrated gender identity
into the fundamental right to dignity outlined in Article 21 of the Indian
Constitution. Transgender individuals cannot be subjected to disgrace in
society; they possess the right to dignity as enshrined in Article 21 of the
Indian Constitution.
b. Right to equality[58]
and freedom of speech and expression[59]
is the fundamental right provided under the Indian Constitution to all irrespective
of gender. Consequently, transgender individuals are entitled to the right to
equality and freedom of expression. They have the liberty to express their
gender identity through attire, speech, conduct, or demeanor.
c. Articles 15 and 16 of the Indian constitution
forbid discrimination on the basis of sex. The term "sex" encompasses
not only biological attributes like chromosomes or genitalia but also includes
gender, which represents an individual's subjective understanding of their
identity. Therefore, the court has ruled that discrimination based on sex
encompasses gender identity as well.
III.
The
court further ruled that awareness campaigns are necessary to combat the stigma
that the transgender community faces in society.
IV.
The
court has also directed the Central as well as State Governments to take
initiatives for the advancement of the transgender community. These are:
a. A provision ought to exist for legally
acknowledging transgender individuals as a distinct third gender.
b. The classification of the third gender as a
socially and educationally disadvantaged group should be mandated, entitling
them to educational and employment reservations.
c. The government should formulate social welfare
programs specifically tailored to the needs of the transgender community.
V.
The
Supreme Court directed the Ministry of Social Justice and Empowerment to
establish an "Expert Committee" tasked with conducting research to
identify the requirements of the transgender community and to analyze the root
causes of the challenges they encounter.
In the wake of the NALSA Judgment,
the LGBTQIA+ Community witnessed another groundbreaking moment in 2018. The
Supreme Court's verdict in “Navtej Singh Johar v. Union of India”[60]
followed a petition filed by Navtej Singh Johar challenging the
constitutionality of section 377 of the Indian Penal Code, citing violations of
fundamental rights. The petitioner argued that the provision criminalizing
'carnal intercourse against the order of nature' infringed upon rights such as
privacy, freedom of expression, equality, human dignity, and protection from
discrimination. The court over-ruled their decision in the case of Suresh
Koushal v. Naz foundation [61]
and ruled that “discrimination on the basis of sexual orientation was
violative of the right to equality, that criminalizing consensual sex between
adults in private was violative of the right to privacy, that sexual
orientation forms an inherent part of self-identity and denying the same would
be violative of the right to life, and that fundamental rights cannot be denied
on the ground that they only affect a minuscule section of the population.”
In 2022, there was also a landmark
Judgement of the Supreme Court in the case of Deepika Singh v. Central
Administrative Tribunal where the court has widened the definition of
‘family’ under Indian law. The court has recognized the “typical” families and included
queer marriages under this. The court's decision rejects the conventional
wisdom that heteronormative unions and family units invalidate the identities
and experiences of queer people.
Therefore, the Indian Judiciary from
time to time has recognized the existence of transgender people in the society.
The directive through these significant judgments has been very impactful for
the government in the matter of drafting legislation and framing policies for
the transgender community.
7.
CONCLUSION
The author through this paper has
found that transgender people are still unrecognised and discriminated against in
society. The people are not ready to accept them because they consider only men
and women as a suitable, natural, and acceptable gender. The concept of the third
gender goes beyond the established belief and order of society. Through this
paper, the author has critically analysed the legal avenues which are available
to the transgender community in India.
The history of transgender goes back
to Hindu mythology where they were recognised under the great epic of Ramayana
and Mahabharata. At the time of the Mughal Period, they were appointed to a
better position like administrator, and personal advisor to the king but when
the britisher arrived, they started criminalizing this community through
various legislations. The author found that the arrival of Britishers in India
has worsened their living condition in society.
They continue to experience prejudice
in the modern day. In addition to that, they are still not receiving a basic
education and face discrimination while applying for jobs.
In the contemporary period, they are still
facing discrimination. They are not getting basic education, also discriminated
against in availing job opportunities. The health service by the government to
this community is not enough to cater to their need and they are raped,
sexually assaulted in the society. The government also lacks in providing a safe
environment for them.
The author also found that there are
fundamental rights of equality, freedom to express, life, and dignity enshrined
under the Indian Constitution available to them. They have also rights against
exploitation and discrimination but these fundamental rights only exist on paper
and are still violated.
For the upliftment of this community,
the government has introduced Transgender Persons (Protection of Rights) Act,
2019 but the author has found this act problematic on various grounds like
identity, residence, and penalties which have to be addressed by the
government.
The Indian Judiciary has played a
great role in legally recognizing this community. Through their various
decision in different cases, the court has always directed the government to
take steps for the welfare and development of transgender people. The decision
of the Supreme Court in the case NALSA Case is very significant and the
government must adhere to this judgement for the progressiveness of this
community.
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[15] The
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[17] The Constitution of India, art.
16(2).
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[19] Government of India, Annual Report
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[22] The Constitution of India, art.
14.
[23] supra note 2, at 47.
[24] The Constitution of India, art.
15(2).
[25] The Constitution of India, art. 16(2).
[26] supra note 2.
[27] The Constitution of India, art. 19(1).
[28] I.R. Coelho v. State of Tamil
Nadu, AIR 2007 SC 861.
[29] State of Maharashtra v. Public
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[30] The Constitution of India, art.
23.
[32]The Transgender Person (Protection
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[33] Id.
[34] supra note 2.
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[50] Naz Foundation
v. Government of NCT of Delhi, (2009) 6 SCC 712.
[52] Supra note 24.
[53] The Constitution of India, arts. 15.
[54] Supra note 46.
[55] Suresh
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[60] Navtej Singh Johar vs Union Of India, AIR 2018 SC
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[61] Supra note 59.