Case BriefsHigh Courts

Bombay High Court: A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

Backdrop

The petitioner was aggrieved by the rejection of her nomination form by the Returning Officer. She had decided to choose the female gender, and hence had tendered her nomination form for contesting the election from the ward reserved for women-general category. The reason for rejecting the nomination form was that the petitioner is a transgender. It was stated that there is no reservation for the transgender category in the instant village panchayat elections.

Submissions

A.P. Bhandari, Advocate for the petitioner, on instructions, made a categoric statement before the High Court that this was the first occasion wherein the petitioner had opted for a right to a self-perceived gender identity and had selected the female gender for all purposes during her lifetime. He submitted that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

S.B. Pulkundwar, AGP, and A.B. Kadethankar, Advocate for the Election Commission, submitted that they would not argue beyond the provisions of law and would not make submissions contrary to the law laid down by the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. It was stated that the Returning Officer was likely to be unaware of the law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner.

Analysis & Decision

The High Court relied heavily on and followed the law laid down in the “NALSA case” [National Legal Services Authority v. Union of India, (2014) 5 SCC 438] wherein the Supreme Court has comprehensively dealt with the issue of the rights of transgender people. The Court noted that the Government of India has introduced the Transgender Persons (Protection of Rights) Act, 2019 and has permitted a transgender person to have a right to be recognised and such transgender is permitted to have a right to self-perceived gender identity.

In the present case, the petitioner had opted for the female gender as her self-perceived gender identity and made a solemn statement, which was recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.

It was observed by the Court:

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner. No other contesting candidate has taken any objection against the petitioner. It is the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”

In view of the above, this writ petition filed by the petitioner was allowed. The impugned order passed by the Returning Officer was quashed and set aside. Since the nomination form of the petitioner was otherwise complete in all respects, the same stood accepted and she was permitted to contest the election from the ward and category which she had opted for in her nomination form. [Anjali Guru Sanjana Jaan v. State of Maharashtra, 2021 SCC OnLine Bom 11, decided on 2-1-2021]

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while allowing the present writ petition moved by a transgender against the declaration of her self identified gender in official documents, reiterated the observations made in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and clarified upon the applicability of Rules 6 and 7, Transgender Persons (Protection of Rights) Rules, 2020.

 Brief Facts

Facts of the case are enlisted objectively hereunder;

  1. That the petitioner claims to be a transgender; whose gender does not match with the gender assigned to her biologically by birth.
  2. That the birth certificate of the petitioner declares her as a male and names her as ‘Clafid Claudy Lobo’
  3. That at a very young age, the petitioner identified herself as a female and lately underwent a gender reassignment surgery on 26-07-2018, at Namaha Hospital, under the medical supervision of Dr Umang Kothari.
  4. That the petitioner thereafter changed her name from ‘Clafid Claudy Lobo’ to ‘Christina Lobo’ by executing an affidavit dated 31-10-2019.
  5. That the petitioner holds an AADHAAR card and a passport with the aforementioned name and gender female.
  6. That the respondent authorities have denied acknowledging the gender identity of the petitioner and further rejected the claim of changing the personal details over the university and pre-university certificates.
  7. That the petitioner has sought for a writ in the nature of mandamus directing respondents 2 and 3; the Department of Pre-University Education and the Karnataka Secondary Education Examination Board, Bengaluru to issue a revised certificate in addition to the setting aside of order passed by respondent 4; Central Board of Secondary Education, Chennai and issue revised CBSE mark sheet showing her name as ‘Christina Lobo’. Further, the petitioner prays to issue a writ of mandamus against respondent 6 and 7; Rajiv Gandhi University of Health Sciences and Father Muller Medical College, Mangalore to change her name and gender in the MBBS mark sheet and thereby grant revised educational records.

 Contentions

It was argued by the counsel for respondent 3, N.K. Ramesh, that the Transgender Persons (Protection of Rights) Act, 2019 has been promulgated by the Parliament on 05-12-2019 and as per the provisions of the said Act, a Transgender is required to make an application to the District Magistrate for issuance of a certificate of identity as a transgender person. Further, there is no provision in ‘Examination Bye-laws’ of the Board to effect change in gender and name of the students and therefore, the order passed by respondent 3 cannot be faulted with.

The counsel for the petitioner placing reliance on NALSA v. Union of India, (2014) 5 SCC 438, emphasized transgender person rights decide their self identified gender as recognized by the Supreme Court and the direction issued to the Central and State Governments granting legal recognition to the same, without fail. As per the facts of the present case, the petitioner has identified herself as a female and also undergone psychological evaluation/gender reassessment surgery. There seems no reason for denial to the petitioner’s claim as the legal position stands clear in the light of the aforementioned judgment. It was further submitted that under Article 21 of the Constitution, such denial shall be arbitrary and in violation of the Fundamental Rights enshrined under the Constitution.

 Observation

The Court, pursuant to its decision, cited the following cases;

  • National Legal Services Authority v. Union of India, (2014) 5 SCC 438, “The recognition of one’s gender identity lies at the heart of the fundamental right to dignity.Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”
  • Anuj Garg v. Hotel Assn,  of  India, (2008) 3 SCC 1, “(…) Self- determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed  under Article 21 of the Constitution of ”

With respect to the legal recognition of third gender/transgender, the Court remarked;

  • The self-identified gender can be either male or female or third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example, Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a ‘third gender’, apart from male and female.”
  • Moreover, the Court, answering contention of the respondent related to application for certificate of identity, cited, sub-rule (3) of the Transgender Persons(Protection of Rights) Rules, 2020 which provides for application for issue of a certificate of identity under Rules 6 and 7. It reads as under-

 (3) “Transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Act shall not be required to submit an application for certificate of identity under these rules: Provided that such persons shall enjoy all rights and entitlements conferred on transgender persons under the Act”.

  •  Since the identity of the petitioner is officially recorded in the AADHAAR card issued by Unique Identification Authority of India (UIDAI) and the passport issued by the Central Government, in view of Rule 3 of Transgender Persons(Protection of Rights) Rules, 2020, the petitioner is not required to make an application for certificate of her identity.

Decision

While allowing the present writ petition, the Court reiterated the Constitutional safeguards accorded to the third gender and issued requisite order to the respondent authorities.[Christina Lobo v. State of Karnataka, 2020 SCC OnLine Kar 1634, decided on 1-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together