Parnika
Evolution of Transgender Laws In India
Parnika Agnihotri 13 Apr 2018

Evolution of Transgender Laws In India


TOPIC- Transgender Rights And Law


SUB TOPIC-Evolution of Transgender laws in India.


-Parnika Agnihotri


BBA.LLB(4th  year)


New Law College ,BVDU Pune


 


ABSTRACT-This essay shall trace the historical background of transgender in India ,then the journey of this essay shall turn to see the misconceptions prevail in our society and problems faced by the transgender , then we take a look on the land mark case law NLSA v.UOI[1]as well as directions  given to the central and state for welfare of transgender . Then we will encounter stories of some transgender,  highlights of violation of “Human Rights” . We will discuss what  relevant laws are present in protection of rights of transgender. We will discuss about The Transgender Persons (protection of Rights) Bill, 2016. After all discussion Author would like to share her views and solutions regarding problems of transgender as well as author would also like discuss about the step taken by railways in support of transgender.


I Was Human, I Am Human Now, Being Transgender Doesn’t Make Me Any Less Human.


INTRODUCTION-Transgender people are those “HUMAN” whose gender identities do not pertains to their biological sex, and thus they differ from the stereotype of how men and women normally are .Hence, they are not treated as “Human” in our society as a result they become victim of agony and hatred by others. If we go into literal terms then the prefix “Trans” means “beyond”, so the word Transgender in its literal sense connote “Human” who have gender beyond two described genders. Gender is among few characteristics which  is use to describe any person’s physical appearance, in the same manner as height and weight of any person does . So, why do we treat these human as matter of shame or subject of controversies. Laws can be made to protect their rights but what about the mind set of people which they pursue.  Inquisitiveness is human nature , so when he find something different , they try to know more and more about that particular thing but what  if that inquisitiveness violates someone’s  feelings and humanity . In this essay we will see the journey of tans gender’s life and laws made for them also we will focus that transgender are also share holders of human rights and life with dignity, as we people do.


Historical Background Of Transgender in India-Transgender community comprises “Hijras, Eunuchs,Kothis,Aravanis,Jogappas,Shiv-Shakthis”etc . Eunchus existed since 9th century BC. Eunuchs has roots in Greek and means “keeper of the bed”.


 Various text and literature suggest that third gender sex individuals were well known in pre-modern India. The foundational work of Hindu Law, the Manu Smriti(200BC-200AD) explains the biological origin of the three sexes. Indian linguistic work of Patanjali on Sanskrit grammar also states about three grammatical genders.


           There are many historical evidences of recognition of “Third sex”. Lord Rama in the epic Ramayana, was leaving to forest upon being banished from the kingdom for 14 years, turns around to his follower and ask all ‘Men and Women’ to return back but the Hijras still followed him and decided to stay with him.Impressed by their loyalty and dedication, Rama sanctioned them the power to confer blessings on people on auspicious occasion. In Mahabharata too there is description about third gender where, Lord Shri Krishna took Mohini avatar to marry one transgender son of Arjuna


             Now we will trace how position of third gender changed from period to period-


1. Mughal period- Hijras played a famous role in the royal courts of the Islamic world, particularly in the Ottoman empires and the mughal rule in Medieval India. They rose to well known position as political advisors, administrators as well as guardians of the harems. They were considered to be clever, trustworthy and loyal at any condition. They were given access to all spaces and sections in society. Hence ,we can say that transgender enjoyed a good status and position in society during Mughal era.


2. British period-In the beginning of British era in Indian subcontinent transgender used to get benefits and good status in some Indian states. But from the 18th century onwards the situation changed drastically and in the second half of 19th century the British colonial administration vigorously sought to criminalize the hijra community and to deny them the civil rights.Hijras was considered to be separate caste or tribe in different parts of India by the colonial administration. The Criminal tribes Act 1871, this included all hijras who were indulged in kidnapping and castrating children and dressed like women to dance in public places. But this law took a different prospective and made all transgender as criminal or victim of agony in the eyes of society.


3. Post Independence period-The Act which was made by British regime was repealed in 1952 but its legacy continued to be seen in many local laws reflected some prejudicial attitudes against certain tribes, including against hijras (these were humans who belong to this category by way of birth and they achieve their livelihood by singing and dancing in auspicious occasion).Due to this Act general public mind set also started to change in subject of transsexual.


           Recently the Karnataka Police Act which was amended in 2012 to “provide for registration and surveillance of Hijras who indulged in kidnapping of children, unnatural offences and offences of its nature” (section 36A), this was in same stream of Criminal Tribes Act1871.


Case Study of some Transgender in India-In this section I would like to enlighten stories of some transgender and challenges they had faced in order to survive in the society.


1. Laxmi Narayan Tripathy,He had born as a male. When she was growing up child, she felt different from the boys of her age and was in her femine ways. On account of her feminity from an early age, she faced repeated sexual harassment, molestation and sexual abuse, both within family and outside the family, Due to her being different she was isolated and had no one to talk or to express her feelings while she was coming to terms with her identity. She was constantly abused by everyone as a ‘Chakka & Hijra’.So she felt that there was no place for her in society. She was not identified as women. Later she joined the “Hijra community” in Mumbai and she was first time in life identified there.


           By witnessing such discrimination and hatred throughout the life she decided to file petition of violation of fundamental rights guaranteed under Article 14 and 21 of Constitution of India and also against non recognition of third gender over and above male and female.


2. SIDDHARTH NARRAIN-He belongs to “eunuch” which is category under umbrella of Transgender. He expresses his feelings as-


                        “Ever since I can remember I have always identified myself as a woman. I lived in Namakkal, a small town in Tamil Nadu.When I was in 10th standard .I realized that the only way for me to be comfortable was to join hijra community .It was then my family found me meeting hijra community people. One day my father was out, my brother on encouraging by mother he started beating me with cricket bat. After intervention of some relatives I was rescued and I left home after and went to join group of hijras in Erode.”


3. SACHIN-He belongs to the group of transgender . He was 23 year old, who liked to dress up like women and work like women including household chores but was hatred by neighbors and others which made him felt that he is criminal. Later he adopted profession of Sex workers.


4. MADHU-She is 22 year old, a transgender women from Madurai explains why she no longer gets tested for the diseases. She shares that “I no longer have the courage what if they say that I have HIV and AIDS? Where will I go? And how will I learn? I hope to die if I ever get detected with HIV.”


There is finally an official count of the third gender in the country is 4.9 lakh, each transgender have their own stories but the problem which they face is almost same, they all have to fight to live or to survive normally in society but the irony is that society still treat them as abnormal which feels, same as if you had studied hard by giving your 100 percent but still you get lowest rank.


Violation of Human Right- Human Rights are the rights which are inherent to human being, irrespective of its nationality, place of residence, gender or ethnic origin. The “principle of universality “of human rights has been derived from “Universal Declaration of Human Right” in 1948.Fundamental rights which are guaranteed by constitution of India also derives its many principles from “UDHR”.


            Again it become challenge for transgender to protect their basic right i.e. fundamental right .It is right that it is duty of state to protect the rights of people of India but what about those people whose voice is being unheard by state at the time when they suffer.


            They are deprived of social and cultural participation and hence, they have restricted success to education ,health care and public palces.Firstly,  they are not  accepted in our society and  social institution, as they say that these people will affect the environment of their institution and even if for once they are being accepted by the society they faces a lot of stigma and most of the times they get bullied ,they have to face comments and particular remarks and harassment done by so called normal people of our society as a result of which their “RIGHT TO EQUALITY” [2]is violated as they are facing unreasonable ,unfair discrimination and even most of the time in the college admission form there is no option of third gender, they have to wear an artificial identity of  male or female, I ask why? they are also human .they also have same right to make friends, to have a open gate for educational field, they also have their own identity of third gender and they are happy in their world with their such identity only thing that hurt them is stigma which they face. “RIGHT OF LIFE WITH DIGNITY[3]also becomes issue with them. On one hand where by way of Parmanand katara v.Union of India[4] the Supreme Court of India had included “Right to Medical Care” under “Right to life”. On the other hand within the medical community, transgender individuals face significant barriers in health care. This include failure of most health insurance plans to cover the cost of mental services and due to lack of counseling their mental condition get eroded because they have to face social boycott and agony as a result many of these humans commit suicide. They face many problems related with obstetrics and do not get proper counseling and treatment as a result they hide their problem get worse.


            Skilled individual from this community had to lose their identity as third gender in order to get employment and even then they are ridiculed and ostracized or bullied and hence forth they leave their jobs. They are forced into sex work which puts them at the highest risk of contracting HIV and unnatural sex which was declared as criminal act under sec377 of IPC by way of “Suresh Kumar Kaushal v. Naz foundation[5]. Working as sex worker is the last resorts with them so due to fear of rejection, they are forced to do unprotected sex.They are viewed as “vectors” of HIV in the society.


            Immoral Traffic PreventitonAct1956, which was amended in 1986, has become gender neutral legislation. The domain of this ACT applies to all male, female and third gender sex gender as a result their this left out option of  profession also make them criminal.


In “Jayalakshmi v. State of Tamil Nadu”, [6]Pandian , a transgender, was arrested on charges of theft by the police. He was sexually assaulted in the police station which ultimately led him to immolate himself.


Land mark step taken by Apex Court-The year 2014 witnessed a great step taken by the Supreme Court of India in the case “NALSA V. UOI”[7]. After witnessing so many problems faced by these transgender “National legal service authority” filled a petition which was compiled with the petitions filled by a transgender “Lakshmi narayan Tripathy” and “Poojya Mata Nasib Kaur ji women welfare, an NGO”.The two judges bench of “Justice K.S Radhakrishnan and Justice A.K Sikri” gave a landmark judgment by “declaring transgender people to be third gender”. They affirmed that the fundamental rights granted under the Constitution Of India will be equally applicable to transgender people and gave them right to self identification of their genders as male, female or third gender. Moreover court also held that because these third genders shall be treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.


            Supreme court also asked center and state to take steps to create public awareness so that transgender people will feel the part and parcel of the social life and not be treated as untouchables; take measures to regain their respect and place in society and seriously address the problems such as fear, shame.gender dysphoria, social pressure, depression etc.


            After passing of this judgment the center also tried to take some steps in the direction of the development of transgender community although was not successful.


The Transgender Persons (Protection of Rights) Bill, 2016-


In April 2014, the bill was drafted by the office of MP Tiuichi Siva, which was presented in the Rajaya Sabha .This bill contained so many loopholes as well as many aspects were not covered under this draft as a result another bill was presented in December 2015 which was known as “The Transgender Persons (Protection of Rights)Bill,2016”.This bill was based on the report on problems faced by transgender people submitted by Ministry of Social Justice and Empowerment.


            The bill provides the definition of transgender, it also prescribe norms as how a transgender can obtain certificate of being a third gender human. The bill also prohibits discrimination against a transgender person in areas such as education, employment and healthcare. The act also gives protection to third gender human from getting exploited sexually as well as physically.


Are we able to protect rights of transsexual “Humans”-In my essay I had referred the word “humans” many a times, this usage was made deliberately in order to raise question that after two years of landmark judgment do we really treat these people as human as we treat other male or female? Do we have really welcomed them in our society? There are mixed answers to these questions as there are many instances where transsexual people got success although after struggle yet they made some position in our society. On the other way many transsexuals are still struggling to get little humanity from society. Here I would like to discuss some success made in direction of their welfare after and before the judgment given in 2014-


1.      After getting voting rights in 1994, Shabnam Mausi is the first transgender Indian to be elected to public office. She was elected as elected member of Madhya Pradesh State Legislative Assembly.


2.      In Jan 2015, independent candidate Madhu Bai Kinnar was elected as the mayor of Raigarh, Chhattisgarh becoming India’s First openly Transgender Mayor.


3.      Manabi Bandopadhyay became India’s first transgender college principal, in June 2015 in Krishnanagar Women’s College in Nadia district, west Bengal.


4.      In November 2015, K.Prithika Yashini, became the first transgender police officer in the state of Tamil Nadu.


5.      Kalki Subramaniam, had 2 masters degree in journalism and Intellectual Relation and now Kalki is successful entrepreneur.


6.      Padmini Prakash, a vocal artist, a trained kathak dancer became first transgender news anchor.


7.      Bharthi, she came up as first transgender Pastor.


On 25 November 2016, Indian Railways and IRCTC took a commendable move by including “transgender/third gender” as a gender option alongside males and females in the Railways Ticket Reservation Forms, this was the step in compliance of the NALSA v. UOI .this move comes in furtherance of a representation made by Advocate Mr.Jamshed Ansari, in Delhi High Court by alleging the violation of Article 14,15,19,21 of Constitution of India.


Conclusion- We got independence in the year 1947, but transgender felt a ray of hope for independence in 2014 when apex court of India gave a commendable decision. This was the day when they felt some presence in society. But still these human have to fight a battle in order to change stereotype thinking of other people in the society. Still eyes of transgender seek answer that what is their fault? But again as it is said that many drops of water fill a pot in the same way little little and continues effort of four pillars of democracy that is Legislature, Judiciary, Executive and Media along with most important effort of “We, the people of India” shall spread the sunshine for these humans as they are also creation of same creator. This earth do not belong to any particular gender or community, it belongs to all, every “human” despite of their gender have equal right to have a dignified life, no one is contractor of this earth. It is true that “Transgender people in India have to wait more to see the light at the end of the tunnel” and many improvements in the bill is needed but with the passing of time mindset of people and betterment of transsexual “humans” can be witnessed. An unknown transgender quoted as-


Sometimes it feels like life is an uphill race,


Sometimes it feels like losing battle,


But we need to shine on.


No matter who is trying to turn off our light.


 


 


 


 


 


 


 


 


 


 


 




[1] AIR(2014)SCC438

[2] Article 14 of Constitution of India

[3] Article 21 of Constitution of India

[4] AIR1989SC2039: (1989)4SCC248

[5] AIR(2014)1SCC

[6] AIR(2007)

[7] AIR(2014)SCC438


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