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TRANSGENDER’S RIGHTS IN INDIA: A STUDY FROM HUMAN RIGHTS PERSPECTIVE
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TRANSGENDER’S
RIGHTS IN INDIA: A STUDY FROM HUMAN RIGHTS PERSPECTIVE
AUTHORED BY
- *KM TABSSUM.,
ABSTRACT
Transgender individuals, who have
existed in various cultures and societies since the mid-1990s, are not
considered normal human beings with all citizenship rights. They feel a
psychological difference in their assigned gender, which can lead to hormonal
or surgical changes. The term 'tansgender' was first used in 1974 and is now
used in place of third gender. It includes individuals who undergo Sex
Re-assignment Surgery (SRS) to align their sex with their gender identity.
India has long recognized the existence of transgender individuals, but has not
granted them the same rights as straight individuals. The country has condemned
sexual relations between people for the same sex, which was referred to as
"unnatural offense" by the British. This law became part of the
Indian Penal Code in 1861 during the British rule.
Human rights are inherent to all humans without bias or discrimination, regardless of caste, creed, sex, race, nationality, or origin. The Universal Declaration of Human Rights (1948) includes rights to privacy, health, life, equality before the law, and freedom from torture, discrimination, and violence. However, the LGBT community faces ongoing threats, particularly transgender individuals, which often face social exclusion and lack of social welfare.
The Indian legal system has faced challenges in enforcing these rights, with cases like Noshirwan v. Emperor and D P Minwalla v. Emperor involving the exclusion of transgender individuals from participation, social welfare, and involvement in evils like street begging. The Supreme Court has consistently proclaimed that the right to privacy is a fundamental right, but the idea of privacy has not been clarified or characterized in Indian statutes.
Human rights are inherent to all humans without bias or discrimination, regardless of caste, creed, sex, race, nationality, or origin. The Universal Declaration of Human Rights (1948) includes rights to privacy, health, life, equality before the law, and freedom from torture, discrimination, and violence. However, the LGBT community faces ongoing threats, particularly transgender individuals, which often face social exclusion and lack of social welfare.
The Indian legal system has faced challenges in enforcing these rights, with cases like Noshirwan v. Emperor and D P Minwalla v. Emperor involving the exclusion of transgender individuals from participation, social welfare, and involvement in evils like street begging. The Supreme Court has consistently proclaimed that the right to privacy is a fundamental right, but the idea of privacy has not been clarified or characterized in Indian statutes.
INTRODUCTION
Transgenders have been in existence
in every society in different cultures, transgender persons came into knowledge
in mid 1990’s and pave a great history in South-Asian countries but still are
not identified as normal human beings having all citizenship rights. Every
individual is attached with a particular gender at the time of their birth
where transgender persons are those individuals who feel a sense of difference
in opinion to the gender assigned to them at birth, i.e. they feel a
psychological difference in the gender so assigned. The term ‘tansgender’
includes Hijras, Enuchus, Kothis, Aravanis, Jogappas, Shiv-shakti, etc. This
non conformity to the sex so assigned may lead to alteration in their bodies
hormonally or surgically, depending upon their choice. The first known use of
this term was in 1974 after whichit popularized in 1988. It is now used in
place of third gender as well. It includes individuals who underwent or intend
to undergo Sex Re-assignment Surgery (SRS) to align their sex to be same as the
gender they identify with. It further takes in its ambit the people who cross
dress, often known as transvestites. The Drag-Queens, who are quite popular in
western countries, are also cross- dressers but they are not the same as transgender or transvestites, instead they
are males who dress up in exaggerated manner just to entertain other and not
necessarily associate to it. Also, there are
people who dress or act in a gender- nonconforming way that is not
typical of their assigned sex in their particular culture, yet they are not to
be categorized as transgender.[1]These
persons are often knowns cis gender, the prefix ‘cis’ means on the same side. A
cis gender person identifies with the sex assigned at birth and their gender
identity is not in conflict to it but still they may express themselves at
times in ways that are not typical for their gender. It is important to
understand here that not all cis gender people conform to gender norms, and not
all transgender persons defy those norms.
LAWS REGARDING THE PROTECTION OFTRANSGENDER PERSONS ININDIA
In spite of such vocal history of
LGBTQ, India has lawfully perceived their status as of late. The issue of their
existential emergency has been gazing us in the eye for a considerable length
of time while we have advantageously would not give them the rights that are
theirs simply like some other straight person. We have stomped on over their
human rights for quite a long time, and to aggravate it, India had condemned
the sexual relations between the people for same sex. Besides, the Section that
pronounced it so cites it as "Unnatural offense" while the history
sings an alternate melody. This law turned into a piece of the Indian Penal
Code in the year 1861 during the British standard. The Britishers condemned all
the sexual exercises that didn't adjust to the regular standards. The Indian
laws have a significant impact of the British Ideologies and Judeo-Christian
convictions because of the British Raj.
CONSTITUTIONALRIGHTS
Every cloud has a silver lining and
the equivalent was demonstrated by the Supreme Court of India whereby in its
judgment in Navtej Singh Johar v. Union of India it proceeded to decriminalize
Section 377. The law was pronounced unlawful as it was seen that it disregarded
the basic fundamental rights of the people having a place with this network or
the people of this community. The Constitution of India offers its residents
with Fundamental Rights in PART III and was propelled by the Bill of Rights of
the US Constitution, as additionally by the Universal Declaration of Human
Rights as pronounced by the United Nations General Assembly on December 10,
1948.
The Indian Constitution has the
Preamble going before it that is known to be alluded to by the lawmaking body
or the legal executive when there is any contention with regards to the
translation of any of the articles and their application in setting of thelaws
so upheld. It is said to be the way in to the brains of the designers of the
constitution. A similar key reveres the thought of justice-socio, economic and
political, liberty- of thought, expression, faith, belief and worship, and
equality- of status and opportunity. . These were the dreams set somewhere near
the constitution framers remembering the fate of the country as imagined by our
political dissidents where every person right now have due equity conveyed in
all circles and will not be compelled to bow down to the pointless impulses and
wishes of somebody better which will permit them to live, stand and talk as
equivalents. In any case, the vision was not completely acknowledged on the
grounds that not we all reserve the privilege to communicate as far as our
sexual orientation and no equity is given to abuse of an individual with a
different sex in comparison to the broadly acknowledge dones.
A Constitutional right is the right
or freedom which is enshrined to all the individuals living in the country
through a framework which is known as the supreme law of India i.e. the
Constitution of India. Some of the constitutional rights which provide
empowerment to the transgender persons are as follows:
The Right to self- identification of
gender is a part of right to dignity and autonomy under Article 21, the Article
also, provides for right to privacy as a natural right which is a mandate for
the process of self-determination and Right to Privacy allows one’s thoughts
and beliefs to flow and protect the choices and decisions irrespective of the
faiths or the gender of the person.
Article 15 provides for the
prohibition of discrimination against any person on the grounds of sex, where
in the famous NALSA judgement of 2014, the Supreme Court of India
interpreted “sex” to
incorporate one’s gender
identity. Article 19(1)(a)
provides for the freedom of speech and expression which restricts the freedom
of expression on identity from the transgender persons which leads to
self-censorship of the identity of the transgender persons which the
Constitution of India strictly denies.
Article 14 holds that the State shall
not deny any person equality before law in the territory of India which makes
it impermissible for the transgender persons to be socially excluded or
withheld from participating in social
and cultural events.
Thus, any discrimination on the grounds of sex with regard to the
transgender persons would be hostile to the provisions therein stated by the
Constitution of India.
LAW COMMISSIONREPORTS
42nd report of the Law Commission of India[2]
The 5th LCI under the
Chairmanship of Sh. K.V.K. Sundaram revisited the rape laws for review. The
report looked into the various provisions of the IPC in respect of their
relevance in the present. The major questions to be ascertained by the
commission in its report were regarding the punishment to be imposed and of
excluding from its application the acts done in private between two consenting
adults. The questions were made open to certain people for their opinion on the
same. The results saw a divided support with regards to both the questions.
Some were of the view that for consenting adults it should not be criminalized
as they are of a rational mind and are in position to make major decisions in
their lives without the interference of the law, while others abhorred the act
in all situations and suggested to retain the section without any changes being
made to it. Despite the unacceptable attitude from the ends of those who had
given their opinion, there was a general voice that stood opposed to the
infliction of such harsh punishment for the act.
The committee also took note of the
observation made by The Wolfenden Committee in England on the same issue.
The Wolfenden Committee
The committee began its research on
the issue and law relating to homosexuality inU.K. in August 1954 and concluded
in September 1957. The chairman of the committee was John Wolfenden. The report
in its proposal recommended that a line must be drawn between private morality
and immorality so that the interference of the law should be barred from the
prior. By putting the homosexual act with consent of the adults indulging in
the private domain of such individuals, the report stood in support of
decriminalizing of homo sexuality.
After putting in a lot of thought,
the justification of retaining the provision was also laid down in the report
which stated that in a marriage, if one of the spouses is found indulging into
homosexual acts which leads to a fall out between the two and the other has to suffer the consequence of
the act of such spouse, then as a social responsibility, the state has to
punish the latter to protect the rights of the prior. Also, another obstacle
that stood in their way was that long standing belief of the society that shall
be challenged if it was to be repealed altogether after being in force for a
longtime.
84th report of the Law
Commission of India
The relevance of mentioning this
report which primarily concerns itself with rape and allied offences[3] and has no
mention of Section 377 is to lift the veil of equality under which our
government conveniently dodged the questions regarding the humiliation faced by
the LGBTQ community under this section. For years, the debate has been won by
the proponents of this section on the grounds that the law stands as much in
opposition to the homosexual as to the heterosexuals who commit the act
mentioned there under. If that is the case, then the same should concern women
as well and should have a mention in this report as it concerns women.
156th report of the Law
Commission ofIndia[4]
The subject matter of the study was
the India Penal Code and more specifically the “offences against Privacy” as
given in the code was to be studied in relation to the “Right to Privacy” as
enshrined in the Article 21 of the Constitution of India. The committee favored
the criminalizing of homosexuality solely on the ground of the disapproval from
the society. While we refer to the term society, it includes these homosexual
individuals as a part of it and thereby, the disproval of a section of the
society towards the conduct and behavior of the other without any reasonable
explanation is discrimination. In addition to that, we must also consider that
the same was criminalized even if the relation was being maintained in privacy,
which certainly violates Article 21. However the only positive step that was
taken was to reduce the punishment in cases other than involving minors.
172nd Report of the Law
Commission ofIndia
Although the report dealt with the
change in the definition of the rape with the contemporary times where the boys
are as victimized as are the girls. The report considers the impact of sexual
assault on a child thereby proposing to make the law more gender-neutral rather
than just focusing on the girls. Before we more forth, it is important to
discuss the idea of gender neutral laws and their relevance in the Indian legal
system:
Gender neutral laws do away with the
discrimination on the basis of gender and give equal opportunity to all
irrespective of their gender identity or sexual orientation i.e. any
heterosexual individual or TG or Gay shall have an even field to compete in
without any prioritization being done on the above grounds. This shall bring
the much needed equality and the best person shall be getting the job thereby
not just giving employment opportunity but also increasing the efficiency and
effectiveness of individual corporations.
Universal Declaration of Human
Rights, 1948
The United Nations Declaration of
Human rights on violation of human rights ofthe LGBT community
What are Human Rights?
Human rights are the basic rights
which are inherent to all humans without any bias and discrimination no matter
of whatsoever caste, creed, sex, race, nationality, origin, etc.
These universal human rights are
enshrined to each and ever individual by law by way of treaties conventions,
declarations or obligations by the government. The Universal Declaration of
Human Rights(1948) came into existence as a result and effects of World War II.
The Declaration incorporates right to
privacy, right to health, right to life and equality before the law and additionally
includes freedom from torture, discrimination and any sort of violence but it
is still a continuing threat to the LGBT community involving the transgender
persons which often come to knowledge as the blatant violation of their basic
human rights in many countries including India.[5]
The Declaration provides for
anti-discrimination policies for the clauses relevant to sexual orientation and
gender identity. Despite the obligations provided by the Universal Declaration
of Human Rights the social exclusion of the transgender persons as a part of
the LGBT community sill means to oppress them from any participation, they
suffer lack of social welfare, most of the families disown them and they tend
to live in dysphoria and become a part of evils like street begging.
JUDICIAL APPROACH
. In Noshirwan v. Emperor[6],
where two men were seen entering the house belonging to one of them, a neighbor
pepped into their private space and found them attempting to commit sodomy and
forcefully took them to the police station. Since, the act of sodomy was not
complete; they were allowed to leave after a stern warning. Further, in D P Minwalla v. Emperor123,
two men named Minawalla and Tajmahomed, were convicted under section 377 as
they were caught having an all inter course in a lorry. They were both
punished,
Khanu v. Emperor[7]- the issue raised in the case was
that whether the accused that is guilty of committing the sin of Gomorrah
Coitus per os with an innocent child is to be charged with the commission of
the offence u/s377 of IPC. The language of this section criminalizes carnal
intercourse against the order of nature; therefore, the issue was regarding the
inclusion of the act of the accused under the ambit of this section for it
being carnal intercourse.
RIGHT TO PRIVACY ANDLGBTQ
The need of privacy was beautifully
explained by a nine judge bench in the case of Justice K.S. Puttaswamy (Retd.) and anr. v. Union of India[8].
The issue was to find out whether the right to privacy is a constitutionally
ensured privileged? This inquiry coordinated the court towards Article 21
wherein right to privacy has been given insurance as a fundamental right. This
privacy incorporates assurance from undue state impedance and the obligation of
the state to defend this privilege of the people from others. The idea of
privacy has not been clarified or characterized anyplace in the Indian
Statutes. The Supreme Court proclaimed consistently from its nine-judge
Benchthat'righttosecurity'isaFundamentalRighthavingitsfoundationsinArticle21.
The indication of alleviation that the country took after the judgment was a
consequence of parting from the patience that the judiciary had been keeping up
in the understanding of the resolutions.
The beginning of this idea has been
as old as mankind. . The court traced back the history of privacy only on find
that the right is indispensible to humans with Aristotle dividing the ‘public
sphere of political affairs to the personal sphere of human life’[9], followed
by Austin discussing a similar differentiation. This familiarity with the
private space later developed to turn into the privilege to personal liberty of
an individual. This privilege came to include 'right to be let alone'.
CONCLUSION
In the wake of experiencing the
historical backdrop of the LGBTQ persons it is obvious that their decisions
throughout their life, with respect to how they decide to distinguish
themselves, didn't really worship them to be revered by the remainder of the
society in the prior days, yet it is sheltered to state that the gravity of the
analysis, brutality and discrimination that they are looking in the 21st
century is way more awful.
BIBLIOGRAPHY
·
Austen
Hartke : “Transforming: The Bible And The Lives Of Transgender Christians” 23
Isbn 9781611648522 (Ebk.) | Isbn002
·
M.
Michelraj : “Historical Evolution Of Transgender Community In India”, Asian
Review Of Social Sciences, Vol 4 No.(2015)
·
Dr.Kalpana
V Jawale : “Issues And Challenges On Lgbt Minority People In India”, 5.2 Ijar
2016; 2(6)
·
V.
Revathy : “ The Violation Of Human Rights Against The Lgbt Community In India-
A Critical Study”, Vol. 120 No.5 (2018)
·
Bimal
N Patel : “A Comprehensive Guide Of Laws Of Human Rights In Commonwealth
Countries”, 8-11 (Wadhwa And Company, Nagpur, 1stedn., 2007
·
Guy
S. Goodwin-Gill And Sir Ian Brownlie (Eds.), “Brownlie’s Documents On Human
Rights”, 388-394, Oxford University Press, Oxford, 2010
·
Alex
K. Gingeroff : “Sexual Deviations In The Criminal Law: Homosexual,
Exhibitionistic, And Pedophilic Offences In Canada”(University Of Toronto Press,
1968)
·
Freeman
Susan K., Rupp : Leila J. “Understanding And Teaching U.S. Lesbian, Gay,
Bisexual And Transgender History”,(Salisbury, 2019)
[1]Austen Hartke,
“TRANSFORMING: THE BIBLE AND THE LIVES OF TRANSGENDER CHRISTIANS”, page: 22-23
ISBN 9781611648522 (ebk.) | ISBN 9780664263102 (pbk. : alk. paper)
[2]
Law Commission of India, 42nd Report, Indian Penal Code (June, 1971)
[3]Law Commission of India, 84th
Report on Rape and Allied Offences: Some Questions of Substantive law,
Procedure and Evidence (April, 1980).
[4]Law Commission of India, 156th
Report on Review of Rape Laws, 2000
[5]V. Revathy, “ The violation
of Human Rights Against the LGBT Community In India- A Critical Study”, Vol 120
No.5 , pp. 4875-4884 (2018)
[6]AIR 1934 Sind 206.
[7]AIR 1925 (Sind).
[8]WRIT PETITION (CIVIL) NO 494
OF 2012.
[9]Ibid.
Article Information
TRANSGENDER’S RIGHTS IN INDIA: A STUDY FROM HUMAN RIGHTS PERSPECTIVE
Authors: KM TABSSUM
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/22
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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