- Historic Background
- Constitution vs Transgender community
- Article 14 | Article 15 | Article 16 | Article 19 | Article 21 | Article 51 (DPSP)
- SC Judgment on TG (April 2014)
- Transgender rights: elsewhere in world
- Ancient text: TG are mentioned but never in poor offensive light.
- Medieval times: TG held important positions in royal courts.
- British India: Discrimination starts. Criminal Tribes Act 1871-labelled Hijras = criminal tribes, habitual offenders. They could be arrested without warrant, jailtime upto two years.
- Equality before the law or the equal protection of the laws within the territory of India.
- But Indians laws only recognized two genders: male and female, then provide for marriage, adoption, inheritance, succession and taxation and welfare legislations accordingly.
- Since TG don’t in the binary gender of male vs female. They’re denied equal protection of law.
- For example, TG are subjected to molestation, forced anal sex, gang rapes and public stripping but police wouldn’t lodge FIR under IPC.
- State shall not discriminate against any citizen on grounds of sex.
- Access to shops, public restaurants, hotels, theatres and other public places.
- But TG are denied entry to such public places and treated as outcasts & beggars.
- Equal opportunity for all citizens for public employment. But given the socio-economic-educational backwardness, TG donot stand equal chance against male and female applicants in competitive exams for entry in government service or educational institutions.
- Deals with six freedoms.
- Identifying one’s gender= right to speech & expression, but TG are denied- they’ve to pick either male or female identity.
- Society also prohibits TG the right to reside and practice any profession throughout the country.
Protection of life and liberty- and all the derivative rights such as right to livelidhood, health, dignity etc. are denied to TG community.
- State need to respect international laws and treaties.
- India has ratified both UN declaration and human rights and International Covenant on Civil and Political Rights, 1966.
- Both of those treaties provide equal treatment to all- including TG.
- But Indian government hasn’t taken steps to ensure this.
Successive Governments have also failed to implement other Directive principles of state policies (DPSP) related to equal justice, living wage, standard of living for TG community. In the backdrop of these discriminations, NALSA had filed writ petition in Supreme Court. (2012) with two demands:
- That TG should be recognized as a separate gender. (Aadhar and a few other documents have this provisions but by and large no option for third gender.)
- That TG should be given all the fundamental rights available to other male and female citizens of India.
National Legal Services Authority (NALSA) is a body established under Legal Services Authority Act. They provides free legal services to the weaker and other marginalized sections of the society.
Supreme Court granted following rights to Transgender and order Union & State governments to implement them:
- TG have all fundamental rights available to Indian citizens, including free and compulsory education
- TG have right to form family, adopt children and inherit property.
- Government shall provide formal identity to third gender- in passports, licenses and ration cards.
- Government shall treat them as socially and educationally backward class, eligible for reservation in government jobs and educational institutions.
- Social welfare schemes, healthcare programs, separate HIV surveillance Centres and public toilets.
- For identification of TG- Psychological test and not the biological test will be used.
- Noone can be forced to undergo sex-change surgery to fit in the male or female gender.
- Public awareness campaigns to end social stigma, fear, shame, depression and suicidal tendencies among TG. Make TG feel they’re also part and parcel of social life. Don’t treat them as untouchables.
- Implement these within six months.
Justice K.S. Radhakrishnan & Justice A.K. Sikri
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Mock question[GS2] Syllabus topic: Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of vulnerable sections.
Q. Supreme Court’s recognition of the ‘third gender’, is a turning point in the struggle for rights of transgender people. Comment (200 words)
Mrunal comments: There are many ways to write this answer, as long as SC judgment salient features are included.
- Transgender (TG) find honourable mentions in ancient texts, held important positions in royal courts of medieval India.
- But since colonial times they’ve been treated as criminal tribes and unwanted elements.
- Our Constitution provided fundamental rights to all citizens of India irrespective of their sex.
- But Indian laws, bureaucratic machinery and society still recognize only male and female identities.
- As a result, TG are ignored in welfare measures under DPSP, fundamental rights under Art 14, 15, 16, 19 and 21; and other legal rights.
- Given this non-enforcement, they are forced to live on alms, engage in sex industry; thus become more vulnerable to HIV and poverty cycle.
- India had signed UN Human rights declaration and other international treaties that provide for equal rights to all, irrespective of gender
- But successive governments failed to implement them in context of TG.
In this backdrop, SC gave following verdict in NALSA petition:
- (Indian) TG have all fundamental and legal rights available to Indian citizens, including right to form family, adopt children and inherit property.
- Government shall provide formal identity to third gender- in passports, licenses and ration cards
- Treat them as socially and educationally backward class- eligible for reservation quotas.
- Separate welfare schemes, medical care & public toilets
- Public awareness campaigns to end social stigma.
- Implement this order in six months.
The plight of TG stems not because Mother Nature created them differently but because government and society failed to accept them. SC judgment aims to end this discrimination, and therefore a red letter event in their struggle for human rights.
|Naz foundation case||NALSA case|
|Sexual rights of LGBT community||Constitutional & legal rights of TG community|
|Main argument: Section 377 of IPC is unconstitutional.||Main Argument: TG are not given fundamental rights under Art.14, 15,16, 19 and 21|
|Homosexuality is still a crime under 377 (December 2013 SC judgment)||TG have all fundamental rights and legal rights. (April 2014 SC Judgement)|
- 2006: A group of Human right experts met at a university in Yogyakarta, Indonesia.
- They framed certain principles- for universal human rights, including for TG & other sexual minorities.
- UN bodies, Regional Human Rights Bodies, National Courts, Government Commissions and the etc. have endorsed the Yogyakarta Principles
|Aravani||TG of Tamilnadu. Aravan was son of Arjun and Nagakanya|
|Jogtas/Jogappas||Maharashtra and Karnataka.|
|Kinnars||Delhi and Northern India|
Visit Mrunal.org/Polity for entire Archive of Polity articles published so far.