Madras High Court: In a writ petition filed to direct the respondents to dispose of the petition dated 29-05-2023 filed by the petitioner on behalf of the villagers as President of Nainarkuppam Village Panchayat praying to not to grant land to the Transgender persons in their village, S.M.Subramaniam, J. while rejecting the writ petition , to create awareness against the social evils of this nature, passed the following orders:
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District Collector, Cuddalore District was directed to initiate all appropriate actions under the Tamil Nadu Panchayats Act, 1994 for removal of the President and the Members of the Nainarkuppam Village Panchayat by following the procedures
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District Collector was directed to ensure that the Transgender persons are granted free house site patta based on their eligibility.
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District Collector was directed to ensure that the Transgender persons are allowed to participate in Village festivals, ceremonies and are permitted to conduct worship in all religious institutions etc.
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Government of Tamil Nadu was directed to initiate all appropriate steps to grant reservations to Transgender persons in the local body elections as an initial measure to bring the Transgender persons in the mainstream society.
The president/petitioner stated that no patta shall be granted to the Transgender persons (transmen or transwomen) in their Village as allowing Transgender persons in the Village will result in destruction of culture in that locality. Nearby the land proposed to be allotted to the Transgender persons by the District Collector, a bus stand situates, from where School and College going children will get affected. Further, the village people are residing and in the event of allowing the Transgender persons to reside in that locality, the same would be detrimental to the future of the youngsters in the Village. Therefore, the President, Village Panchayat, requested the District Collector not to grant patta to the Transgender persons in their Village.
The Court took note of the objectionable resolution passed by the village panchayat.
The Court said that social evil in any form is unconstitutional, and the resolution passed by a Village Panchayat unanimously cannot be taken in a lighter manner. Allowing the petitioner to withdraw the writ petition would result in acceptance of the social evil caused at the instance of the elected body. The Constitutional Courts are failing in its duty to protect the Constitutional Mandates, Philosophy and Ethos, if the petitioner is permitted to withdraw the writ petition. Therefore, the petitioner cannot be allowed to walk away simply by withdrawing the writ petition filed seeking a direction to the District Collector not to grant patta to the Transgender persons in their Village under the Government schemes.
The Court referred to Section 3 of the Transgender Persons (Protection of Rights) Act, 2019, that enumerates prohibition against discrimination. Further, it took note of Chapter VI that guarantees protections on Education, Social Security and Health of Transgender Persons. Thus, it said that every educational institution funded or recognised by the appropriate Government shall provide inclusive education and opportunity for sports, recreation and leisure activities to Transgender persons without discrimination on an equal basis with others.
The Court said that the social stigma attached to Transgenders is yet to be removed. It is beyond understanding as to how a human can be differentiated based on physical, social or mental differences. If the majoritarian group of the society with select ideals keep stigmatising and ostracising a minority group purely based on gender, this will not only promote unhealthy social living conditions, but also hamper the growth of our Great Nation.
The Court said that every living being is a gift. Gifts may be wrapped in various colours, designs and appearances and these gifts springs up with countless surprises. It is the same with each one of us. The level of mental and social pressures faced by such distinctive community of people can only be understood by an empathetic mind. They have been ostracised by this very society for centuries. This social ostracisation is the anti-thesis of humanity.
The Court said that Members of the Transgender community are often abused by their own family. They face ill-treatment at the hands of certain members of society and more often their voices are not heard.
As per the Court, though the State is taking measures to implement welfare measures by bringing in legislations and policies to support the transgender community yet, the message gets lost in the lengthy organisational structure of the Executive. The bottom rung of the Executive structure, who are in direct contact with the members of the Transgender community fail to implement these welfare schemes in letter and spirit.
Further, the Court said it is essential to give a platform to Transgender persons to speak about their needs and rights, and only this can bring change in the vision to make them a part of mainstream. For this, the Court said that the reservation for Transgenders must extend to forums of law-making institutions. It also said that the State must initiate steps to provide reservations to Transgender persons in the local body elections as a welfare measure with a view to include the Transgender in a mainstream society and for their democratic participation.
[President v District Collector, 2023 SCC OnLine Mad 5719, Order dated 23-08-2023]
Advocates who appeared in this case :
For Petitioner: Advocate .R.Rajavelavan
For Respondent: Additional Government Pleader T. Arun Kumar, Government Advocate E.Sundaram
