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THE CONCEPT OF EQUALITY AND REFLECTION OF INDIAN JUDICIARY ON TRANSGENDER COMMUNITY – BY SANGRAM JADHAV
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THE CONCEPT OF EQUALITY AND REFLECTION OF INDIAN
JUDICIARY ON TRANSGENDER COMMUNITY
AUTHORED
BY –
SANGRAM JADHAV
Justice
is the end of any legal system. Justice is understood[1]
in two senses i.e in the wider sense and in the narrow sense. In a wider sense
justice is synonymous with morality and the same is given natural law
interpretation by Aquinas and Augustine who claim[2]
that “unjust law is no law”. In a
narrow sense, justice means impartiality or equality. It entails the fair and
equal treatment of all. It was supported by Aristotle who maintained[3] that “like should be treated as alike”. Equality as a term implies being equivalent.
It is a complex political and philosophical idea that assists us with
comprehension and to improve the world around us. Equality is characterized as
the condition of being equivalent, particularly in status, rights etc. Salmond
defines[4] it as “giving every man his due”. The idea of
equity does not, subsequently, expect that things or individuals are precisely
the equivalent or clones of one another.
It[5]
has rightly viewed that all men are not created equivalent. This statement
appears improper even immoral as modern liberal thought has set up the
inherent, equivalent worth of each individual. Be that as it may, true equality
among individuals can be accomplished in light of the fact that there are
certain natural inequalities among us. We perceive that one individual may have
greater innate literary or talent than another. Sen[6]
also famously argues that “Equal consideration for all may demand very unequal
treatment in favour of the disadvantaged”
In 1950, the Indian constitution included a
provision that guaranteed equal protection under the law. Articles 14 through
18 of India's constitution protect the right to equality. Article 14's main
goal is to guarantee equality of status and opportunity to all persons,
citizens and non-citizens, as stated in our constitution's preamble. Article 14
prohibits all forms of discrimination and ensures that everyone is treated
equally under the law. Following articles have made different provisions to
accommodate specific discriminatory circumstances due to the vagueness of the
general concept of equality enunciated in article 14. Discrimination against
citizens on the basis of race, religion, sex, caste, or place of birth is
prohibited under article 15. In regards to public employment, India's citizens
are guaranteed equal opportunity under Article 16. Untouchability is abolished
in Article 17 and titles other than military and scholarly distinction are
abolished in Article 18. Even so, for decades, the concept of equality has
remained a distant goal for the transgender community. Gender has been
interpreted narrowly in the past, causing individuals to be overlooked and
subjected to various sorts of harassment in society.
In 2017, a nine-judge bench of the Supreme
Court unanimously established the right to privacy as a fundamental right,
which encompasses the ability to make choices and the freedom to express self,
in the Puttaswamy decision[7]. There has
been a violation of Article 21 of the Indian Constitution, as the transgender
community's "right to life with human dignity" has been infringed.
The freedom of identification and expression, as well as "expressing
oneself in varied forms, freely moving about, mixing and co-mingling with
fellow human beings," are all part of the notion of dignity.[8] Gender is
an important component of a person's identity, and our Constitution ensures
that it is legally recognised[9]. The right
to privacy is described as the "right to be left alone; the right of a
person to be free from unwarranted publicity; the right to exist without
unwarranted public involvement in things with which the public is not
necessarily concerned."[10]
The
legendary Krishna Iyer, J. noted in Maneka
Gandhi v. Union of India & Anr[11]
that life is a unique opportunity for an emerging personality, and it must be
remembered that the dignity of all is a basic human right, and that without
dignity, a person's being lacks its considerable value. As a result, in order
to progress toward a truly holistic paradigm, we should inject new power into
the existing socio-legal structure on a global scale, weeding out various
criminal laws and family laws that perpetuate the institutional discrimination
of – anti gender identities.
The
transsexual community faced a great deal of embarrassment and shame. They are
not permitted medical, educational facilities, and so forth. They are abused
and badgered by individuals. This ultimately prompted the filling of the
petition. This case preceded the court when a Public Interest Litigation was
documented by the National Legal Services Authority followed by different
petitioners too. The real glimmer of hope showed up in this case as the Indian
Supreme Court in NALSA v. union of India[12],
recognized a "third sex”. Further in 2019, the Supreme Court eventually
adopted[13] a
decisive and radical stance by reading down Section 377 of the Indian Penal
Code (“IPC”) after a protracted struggle and relentless efforts by LGBTQ rights
activists and other social agencies who were the frontrunners in fighting this
evil. The said abrogation, even if minimal effect, affects this community
progressively.
The judgment in the NALSA case was given by
Justice A.K Sikri and Justice K.S. Radhakrishnan. The judgment depended on
numerous courts of foreign nations, for example, courts of New Zealand,
Malaysia, Australia, English and Pakistan courts too. Right off the bat the
Court put accentuation on the psychological sex rather than the biological sex.
The Court discusses the Corbett v. Corbett[14]
with its total accentuation on biological sex. The Court denies sexual
orientation acknowledgment dependent on biological way and gives full
significance to acknowledgment by psychological tests.
Transgender individuals are stifled and are
confronted with separation in different parts of life including wellbeing,
business, and so forth. The Court alluded to Part 21 of the United Nations
Convention against Torture and Other Cruel Inhuman and Degrading Treatment or
Punishment, wherein it is expressed that states are obliged to secure all
people paying little heed to their sexual direction or transsexual personality.
The Court recognized the way that there is a shortfall of enactment in the
country and it was, along these lines, important to follow International
Conventions.
The object and intent of providing for
special rights and privileges emanates from the premise of the existence of
inequality in the society. Such special rights and privileges buttress the
guarantee of ‘equal protection’ contemplated under Article 14. The
decriminalisation of homosexuality and the subsequent enactment of this Act
challenges the conventional notion of gender binary. Whether a trans-man or a
trans-woman be treated at par with a woman? Whether Article 15(3) that allows
the State to “positively” discriminate among the citizens in favour of women
and children, is broad enough to cover within its sweep the transgenders as
beneficiaries of this equitable provision? Answering it, the Honorable Supreme
Court has made[15] it is
clear that all the expressions such as ‘Person’ used in Article 14, 21 and the
expression Citizen used in Article 15,16,19 of an India Constitution are gender
neutral. All those expressions refer to human beings. They include transgender
people in their sphere of influence and are not confined to female or
male gender only. And therefore, the discrimination based on gender
identification is covered by Articles 15 and 16.
Their
rights are legitimate rights based on the good constitutional theory of
equality, not that established in Suresh
Kumar Koushal v. Naz Foundation[16].
They live in peace and respect. They are the very essence of liberty and
equality. The transgender community are compelled to live as second-class
residents in their own countries due to systematic and structural unfairness
that prevents this minority community from realising equal rights. The
community also endure socio-economic disadvantages as a result of their lack of
education and limited career prospects. While delivering the NALSA judgement,
the highest court of the land made a landmark verdict to correct this
predicament. The apex court viewed[17]
that the transgender community are in real sense entitled and eligible to get
the benefits of reservation. They should be included in the Socially and
Educationally backward classes for the purpose of article 15(4) and other
backward classes for the purpose of article 16(4). The Madras High Court[18] ordered
the state of Tamil Nadu to offer transgender people with post-based reservations
in government jobs and educational institutions[19].
The state of Kerala has issued an order requiring two additional seats to be
designated for transgender students in various courses at universities and
associated arts and science institutes[20].
The Uttarakhand High Court[21]
recognised the right to work of transgender people and ordered the government
to develop a thorough policy on transgender people's participation in the
reservation system within the legal framework. The Calcutta High Court has
ordered a public sector bank to also include the transgender people in its
hiring process[22]. The High
Court in Shivani Bhat v State of NCT of
Delhi[23]
acknowledged the rights of a 19-year-old transgender man who was imprisoned and
harassed by his family.
In
India, transgender people are compelled to rely on several illegal activities
such as prostitution and drug trafficking, which adds to their social
marginalisation. Many transgender people are forced to engage in sex work in
their daily lives due to a lack of education and job opportunities. The Hijra
community is only visible in the public domain when they are begging or working
menial jobs, as a result of which they are discriminated against and subjected
to physical and sexual assault. They are treated as second-class citizens whose
appearance will cause them rotten experiences and tragedy. As a result, when it
comes to ensuring rights, the first step should be to secure economic rights,
which can ensure that transgender people can live a dignified life even if they
are dumped by their families[24]. Articles
15(4) and 16(4) set the groundwork for this acceptance, allowing the most
deserving people to be included in a society that has been prejudiced along
various lines. While quashing the decision that the Jat community be added to
the Other Backward Class ("OBC") list, the court noted that:-
“new practices, methods and yardsticks have
to be continuously evolved moving away from caste centric definitions of
backwardness. This alone can enable recognition of newly emerging groups in
society which would require palliative action.”[25]
In the NALSA case, the apex court asserts
that article 15(2) to (4) and article 16(4), when read in conjunction with
international conventions to which India is a party and the Directive
Principles of State Policy, call for social equality, which the transgender can
only achieve if all facilities and advantages are granted to them.
The Court in NALSA case expressed that an
individual's entitlement to show or communicate sex character through words,
dress, activity or conduct is included in Article 19 (right to freedom of
expression). Security, self-character and self-sufficiency are fundamental
rights ensured by Article 19. The Court likewise held that their right to live
a dignified life and enjoy personal liberty is protected by article 21 of
Indian Constitution. The Court declared that the Center and State governments
should concede and acknowledge them as they are. It was seen that transsexual's
require full acknowledgment according to the law. The precious right of
self-determination should be made available to this community. It is imperative to take note of the remarks
of the apex court on the same: “Each
person's self-defined sexual orientation and gender identity is integral to
their personality and is one of the most basic aspects of self-determination,
dignity and freedom. No one shall be forced to undergo medical procedures,
including sex reassignment surgery, sterilization or hormonal therapy, as a
requirement for legal recognition of their gender identity” [26]
The court in NALSA case made different
directions to the Center and State Governments, for example, to have separate
HIV Zero-Surveillance Centers, Provision for discrete public latrines and
appropriate medical care in hospitals for transgender’s, make social welfare
awareness plan for the improvement of conditions of the Transgender community,
unveil the mindful about the abominations against the Transgender people group
and to recover the regard and trust the Transgender people group once
appreciated. The court also declare that
centre and state government should address the problems faced by the
transgender community such as shame, fear, social pressure, gender dysphoria, social
stigama and depression etc. In the words of Justice Radhakrishnan: “Seldom, our society realizes or cares to
realize the trauma, agony, and pain which the members of the Transgender
community undergo, nor appreciates the innate feelings of the members of the
Transgender community, especially of those whose mind and body disown their
biological sex. Our society often ridicules and abuses the Transgender
community and in public places like railway stations, bus stands, schools,
workplaces, malls, theatres, hospitals, they are side-lined and treated as
untouchables, forgetting the fact that the moral failure lies in the society’s
unwillingness to contain or embrace different gender identities and
expressions, a mind-set which we have to change”[27]
One can't overlook the way that the
Transgender people group for long have endured and gone through torment,
embarrassment, and agony. They stayed silent and endured yet at long last
through this judgment the state of the transsexual community has improved. The
judgment of the NALSA case has had an effect in India as well as all throughout
the world. The exclusion of the Transgender people group from involvement in
the general public is a major human rights issue. India follows democracy and
the popular government incorporates everybody regardless of their twisting,
condition, and so forth.
However the NALSA judgment has not answered
why it took so long to recognize the rights of this community. Further the
requirement for separate detention facilities was not mulled over in this
judgment. The Court issued nine guidelines in the verdict, some of which
appeared to mix up the terms "transgender" and "hijra" by
frequently just using expression alternatively, particularly in the fourth and
fifth directives. As a result, the decision was seen as just relating to the
acceptance of "hijras" as "third gender," effectively
obliterating the acceptance of the umbrella terminology. It additionally
doesn't beware of the outrages by the Transgender people group by the police
who don't tune in and address the complaints of the Transgender community.
However fortunately this issue was addressed by the Delhi High court in Harsh
Mander case[28] wherein
the court decriminalized Section 25 of Bombay Prevention of Begging Act, 1959
which is considered as one of the tools in the hands of police for harassing
the transgender community. The court declared the provision as arbitrary as it
does not make any distinction between those persons who are signing, dancing
for begging and those who solicit or receive money. The lines averred by the
honorable acting chief justice of Delhi high court Gita Mittal explain the
pressing of the issue at hand: "...A society that sees legislating inequality
and homelessness into invisibility has unquestionably lost its way…”[29]
Similarly
many other cases were progressively decided by our judiciary for upholding the
rights of Transgneder Community. Like In
Anamika v Union of India & ors[30], The
Delhi Police has assured to the Delhi High Court that if cognizable offences
under Section 354-A of the Indian Penal Code are established in relation to
sexual harassment allegations leveled by transgenders, the matter will be
registered and dealt with as per the law. A division bench of the High Court of
Orissa confirmed in Chinmayee Jena vs
State of Odisha[31] the right
of a transgender man and a woman to be in live-in relationship on August 24,
2020. A habeas corpus petition was filed in this case regarding a live-in
relationship between a transgender man, the petitioner, and a woman, the
alleged detenue. In summary, the court upheld their right to be in a
relationship and required the state to provide them with "all types of
protection" to enable them to exercise their right. Further the Madras
High Court declared in Arunkumar and
Sreeja v. Inspector General of Registration and Others[32]
that a duly solemnised marriage between a trans-woman and a male is legitimate
under the Hindu Marriage Act, 1955, and that the Registrar is obligated to
register the same. Transpersons now have access to civil rights, particularly
those related to marriage, thanks to this decision by the Madras High Court.
While the ruling is historic for much of the country, it also opens the door
for the LGBTQ community to obtain other civil rights.
Undeniable
there is a change in approach of looking at transgender community by our
judiciary but is the same with our legislature? The next chapter will address
it in detail however apparently it reflects that our legislature even today
could not overcome from its discriminatory outlook towards Transgender
community and it is somehow evident from reply of central government in Abhijit Iyer Mitra case[33] wherein
the government viewed that there cannot be any legal right to same-sex marriage
as our value system does not recognize them. The court in the NALSA case had
given 6 month to the centre and state government to implement those directions[34]. However
it is unfortunate that even after so many years of this judgment, our system
could not implement it. Transgender have been and keep on being subject to
public and private segregation. They regularly experience issues in making
alliances with other bunches by excellence of the presence of broad bias and
antagonism coordinated against them. Definitely on the grounds that they are
frequently unknown and diffuse (that is not firmly coordinated), they face huge
barriers in applying sufficient political impact. Even if so as[35] every
civilized country including India recognizes the Equal Protection Clause in
their respective constitution. It ought to prohibit established boundaries to
laws that deny separation or discrimination based on sexual orientation. It[36]
apperas correct when an article declares that these all are fundamental
requests of transgender community which should be acknowledged on a dire
premise. Transsexual people in India need to be treated as citizens and this
isn't a lot to ask for.
[1] Rohinton Mehta, 50 Lecture on Jurisprudence (Snow
White Publication 2000).
[2] Ibid.
[3] Paridhi Gupta
and Subhadeep Chowdhury, Equality: Sameness and Difference, IGNOU (2020).
[4] Rohinton
Mehta, Supra note 63.
[5] Nicole Lillibridge, The Promise of Equality: A Comparative Analysis of
the Constitutional Guarantees of Equality in India and the United States,
volu.13, William and Mary Bill of Rights Journal (2004-05).
[6] S Sarath Mathilal de Silva, the concept of Equality:
Its Scope, Developments and International Legal Regime, volu.16, Royal Asiatic
Society of Sri Lanka (2016).
[7] AIR
2017 SC 4161.
[8] Francis Coralie Mullin v. Administrator, Union
Territory of Delhi, (1981) 1 SCC 608.
[9] Id at ¶ 14.
[10] Chinmaya Kumar Mohapatra, Hiranmaya Nanda, Right of
Privacy: Issues and Challenges, INDIAN JOURNAL OF RESEARCH 344 (2015).
[11] (1978) 1 SCC 248.
[12] (2014) 5 SSC 438.
[13] AIR
2018 SC 4321.
[14] 113 Cal.App. 595, 298 P. 819 (Cal. Ct. App. 1931).
[16] (2014) 1 SCC 1.
[17] NALSA, supra note.8 at ¶75.
[18] Swapna & Ors. v. The Chief Secretary, W.P. No.
31091 of 2013.
[19] Tharika Banu v. The Secretary to Government Writ
Petition. No. 26628 of 2017.
[20] Correspondent, Kerala announces reservation for
transgender students in colleges Hindustan Times, HINDUSTAN TIMES, (Jan 20,
2021 3:30 PM). https://www.hindustantimes.com/education/kerala-announces-reservation-fortransgender-students-in-colleges/story-qHixW6XIPTEXuXkCrrv45K.html
[21] Rano & Ors. v.State of Uttarakhand and Ors., W.P.
Criminal Nos. 1794 and 1785 of 2018.
[22] Atrikar v. Union of India, 2017 SCC OnLine Cal 3196.
[23] 5(2015) 223 DLT 391.
[24] Mousumi Padhi and Purnima Anjali Mohanty, Securing
Transgender Rights through Capability Development, 54 ECONOMIC AND POLITICAL
WEEKLY (2019).
[26] NALSA, supra note.8 at ¶18.
[27] NALSA, supra note.8 at ¶1.
[28] Supra note.19.
[29] Ib.at ¶1.
[30] W.P (CRL) 2537/2018.
[32] AIR
2019 Mad 265.
[33] Abhijit Iyer Mitra vs Union of India, W.P.(C) 6371/2020.
[34] Supra note.19 at ¶129.
[35] Supra note. 28
[36] The Third Sex:
Transgender persons in India want to be treated as citizens. Is this too much
to ask for?, Vol. 48, Economic and Political Weekly (2013).
Article Information
THE CONCEPT OF EQUALITY AND REFLECTION OF INDIAN JUDICIARY ON TRANSGENDER COMMUNITY – BY SANGRAM JADHAV
Authors: SANGRAM JADHAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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