Case BriefsHigh Courts

Uttaranchal High Court: A division bench comprising of Manoj Kumar Tiwari, J. and Rajiv Sharma, ACJ., directed the state to implement schemes for the welfare of transgenders.

Petitioners who are transgender were facing interference in their area of operation to which they have sought protection with respect to life and liberty. Hence the Court took judicial notice of the matter as it revolved around right to life by providing a dignified life to the petitioners owing to the miseries faced by them in order to bring them at par with other people in the society by paving their way to the mainstream.

The Supreme Court, in the case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438 has held the word “person” in Article 14 of the Constitution of India was not restricted to male and female and it includes even Hijras/Transgender persons who were also entitled to equal protection of laws and equality in all spheres. They were entitled to benefits as Socially and Educationally Backward class citizens including reservation in public employment. Gender identity was part of the right to dignity as well as personal autonomy and self-expression and thus declared that Hijras, Eunuchs be treated as the third gender giving them a legal recognition.

It was stated that the State Government, till date, has not implemented the directions issued by the Supreme Court. It was also brought to the Court’s notice that the State of Odisha has framed a scheme for Promotion of Transgender Equality & Justice. The scheme speaks of medical assistance to the parents of transgenders.

In the light of the facts and the issues stated the Court gave the following directions:

  • State Government shall provide reservation in admission in educational institutions and for public appointments along with social welfare schemes for the betterment of transgenders by framing the same.
  • Frame a scheme of housing for transgenders by giving suitable accommodation.
  • Provide financial assistance to the parents of transgenders with scholarship to transgenders up to post-graduate level.
  • Constitute a welfare board with representation given to transgenders in the board.
  • Provide free medical access to transgenders in all the hospitals.
  • Transgenders shall have free access to public institutions, public places.
  • Provide separate toilets in every public utility buildings.
  • Frame law/scheme to ensure that no transgender is separated from the parents/guardians and family
  • Criminal cases shall be registered against the persons who forcibly remove transgender from their parents/guardians and family.
  • All the transgenders in the State were ordered to be registered by the District Magistrates to recognize them as such.
  • There shall not be any discrimination against transgenders qua employment or occupation. Also, They should not be treated unfairly and have an absolute right, as enshrined under Article 21 of the Constitution of India to maintain privacy and to live with dignity.

Accordingly, the writ was disposed of. [Rano v State of Uttarakhand, WP (Crl.) No. 1794 of 2018, order dated 28-09-2018]

High Courts

Allahabad High Court: Delivering a praiseworthy decision in the direction of upliftment of transgenders, the Division Bench of D.Y Chandrachud, C.J. and Shri Narayan Shukla, J., held that, although Section 13 of the National Food Security Act, 2013 has not specifically incorporated a provision that includes a transgender as the head of the family, this however should not be read as an exclusion of the transgender to apply for a ration card. In the Form prescribed by the State Government under the NFS Act, 2013, where Serial No. 12 of the Form specifically requires the applicant to mention the gender under the category of “male/female/other”, wherein “other” clearly refers to a transgender, therefore duly entitling them to avail food security. The Bench further observed that the object and purpose of Section 13 was mainly to promote women empowerment, however in the light of the guidelines laid down in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, the Parliament may consider to incorporate a situation in Section 13 where a transgender is the head of the family.

The present PIL filed by Ashish Kumar Misra raised 2 major questions of importance; firstly relating to the validity of the provisions of Section 13 of the NFS Act on the ground that the statutory provision while recognizing the eldest woman member as the head of the household does not contemplate a situation where there may be no woman in the family and secondly the issue of availability of food security to transgenders.

Deliberating over the first issue, the Court observed that by enacting Section 13 the Parliament recognized the roles and responsibilities which are discharged by women, and their role has been conferred a statutory status and recognition by providing that the eldest woman, above the age of eighteen in a household, shall be regarded as the head of the household. Also Section 13(2) of the NFS Act already envisages a situation raised by the petitioner. Upon the second issue, the Court observed that the form prescribed by the State Government, duly takes into account the concerns of the transgender population by recognizing their entitlement to seek access to food security and to avail of the status of the head of a household. Ashish Kumar Misra v. Bharat Sarkar, 2015 SCC OnLine All 1053 decided on 15.04.2015