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Tuesday, June 26, 2018

BRINGING DOWN THE WALL: TRANSGENDER RIGHTS IN INDIA FROM A LEGAL PERSPECTIVE [PART 2]

MADHUR JHAVAR AND HARDIK GAUTAM 
INSTITUTE OF LAW, NIRMA UNIVERSITY, AHMEDABAD (GUJARAT) 
 (First Published on Volume 01 Issue 02, July 2016) 
 Read similar articles here
 [CONTINUED FROM PART 1
[PEXELS.COM]

HISTORICAL BACKGROUND AND SOCIAL EXCLUSION OF THE TRANSGENDER 
In the ancient religious and other Hindu mythological texts, the transsexual evidences have been witnessed in many incidences of Ardhanarishwara, Ramayana, Mahabharata1 and also their position was much stronger in Mughal era where they guarded the ladies and the children and were in fact respected. The existence of Transgender community ‘third gender’ is witnessed from more than 4,000 years with the ancient myth that they have the special power to bring luck and fertility.2
They majorly have two cultural role whereby in northern region they earn their livelihood by showering their blessing on the auspicious occasions as marriage and in southern parts they earn as a sex worker, rather they are majorly recognized as a sex worker. Gender is the psychological recognition where what one feels as an individual is primarily considered whereas sex is merely a physical differentiation or external appearance as a male or female as identified by the society.3 The hijras are directly associated and devoted to the Hindu Mother Goddess, Bahuchara Mata who governs their existence and function within Indian society.4 When all of the ritualistic process has been carried out, the person enters in the community of the hijras. These members of the community live together for protection purposes and also because they do not interact directly with general society. Many of the hijra women are excluded from outside work, finding much of their income and livelihood stemming from prostitution and sex work.5 "Transgender" is an umbrella term that is used to describe a wide range of identities, hijras (Eunuchs) being one. It is applied to persons whose gender identity does not conform to their biological sex (assigned at birth).6 In a country like India where religion and notions related to certain norms prevails, transgenders thus suffer a grave problem of social exclusion and identity crisis. The main problems that are being faced by the transgender community are of discrimination, unemployment, lack of educational facilities, homelessness, and lack of medical facilities: like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcohol abuse, splenectomy, and problems related to marriage and adoption.7 They are socially stigmatized humans, deprived of their human rights. In the British dominated era, transgender suffered from adverse atrocities and also it was a crime to be a hijra and they could then be arrested without any warrant facing two years punishment.8 In 1994 transgenders got their right to vote, but there was a major issue as to where their gender identity has to be settled as a man or as a woman. Subsequently, they were denied their right to vote, marry and all such legal procedure whereby they were forced to answer as to their gender identity. Not only this, social stigma attached to it leads to indifferent attitude towards the transgender and they are thus not accepted in the community of “the generals”, just two gender community, which leads to homelessness. Due to lack of opportunities and mutual respect among the society members and also due to lack in their education value, they are left unemployed which in turns leads them to begging and prostitution practices. And they are also subjected to violent behavior by the members of their society. They also lack protection from police, this absence means ruffians find Hijras /TG people as easy targets for extorting money and as sexual objects. A 2007 study documented that in the past one year, the percentage of those MSM and Hijras who reported: forced sex is 46%; physical abuse is 44%; verbal abuse is 56%; blackmail for money is 31%; and threat to life is 24%.9 Social welfare schemes all over the country works for the development of the backward reserved category but there is no such welfare scheme that works for the development of the transgender communities in general except few such as providing land for Aravanis in Tamil Nadu and also so is the case there is no awareness among the transgender community. Observing the trends from the history and the present scenario till date, they once did enjoy a respectful status in the society but which is now shredded into bits and pieces. They now are the victim of the inequality, discrimination social stigma and the notion of the society about their gender orientation. The government has shown least concerns towards the transgender and their rights, thus no policies were then formulated in this regard. Subsequently, the transgender communities have themselves secluded further from the society which have increased suicide rates and de-motivated their overall growth and development.


TRANSGENDER RIGHTS UNDER THE CONSTITUTIONAL OF INDIA
Before the independence of India the civil rights of the transgender community had been curtailed by the enactment of the Criminal Tribes Act, 1871.10 In the year 1949, when India got independence the law was then repealed but the rights of transgender is still under mistrust. There were no serious attempts to be made by the legislature of India to remove this mistrust and provide them their basic civil rights. The society treats the transgender community as a total different class because of which they are continuously being deprived of their basic civil rights. Peoples of the society considered the transgender community as generally indulging in the criminal activities like kidnapping, misbehaving with peoples, murdering, involve in prostitution. But the situation is completely different as it is not the transgender community which involves these criminal activities but it is the male and female who mainly does crimes. The State is considered as one who provides the citizen of their basic rights so the question arose here is that aren’t transgender comes under the definition of citizens? Aren’t they have human right? The state ensure the rights of an under trial prisoners or even a convicted person then why don’t it considered the rights of transgender? Is the society or the state is responsible? Being a minority in the society it is unfair to give them access to their basic civil or human rights. In view of the society, it thinks that the rights of transgender are not protected with any sort of legislation or legal protection but it is nothing than a misconception of the society. The Constitution of India has given legal protection to the transgender community by ensuring equality, liberty and social justice to them. Article 14 states that “the state shall not deny to any person equality before the law or the equal protection of the law within the territory of India.”11 It is a fundamental right of any citizen not to be treated unequally on the basis of race, caste, sex, religion, nationality. In other words they are not subject to any sort of discrimination on the basis of their sex, they should get “equality of status” as also mentioned under the Preamble.12 Justice Bhagwati in his landmark judgment of Maneka Gandhi v. Union of India,13 states the “equality is a dynamic concept and it should not be imprisoned within the traditional and doctrinaire limits.”14 Article 15(2) guaranteed them to access shop, public restaurants and places of entertainment.15 The society or the state in some or the other way prohibits the transgender to access to shops, etc. and they were not allowed to use the public well, tanks but due to enactment of Article 15(2) the trans genders got a right to live the life like a normal human being and hence no one is allowed to violate this right. The most important right to be given under the Constitution of India is of Right to life and Personal Liberty,16 which emphasize that “no person shall be deprived of their life and personal liberty except the procedure established by law.”17 It also states that it is not only a duty of the judiciary to protect the rights of the transgender but it is also an obligation on the part of legislature to make laws and proper implementation by the executive. By marginalization of the transgender community from the society the right to live a dignified life is hampered. Supreme Court in its famous judgment in the case of National Legal Services Authority (NALSA) v. Union of India & Ors.18 recognized third gender recognized at par with the male and female. By this judgment, the social frame of only two genders has been coming down since. Human rights are basic rights and freedoms which are guaranteed to a human by virtue of him being a human which can neither be created nor can be abrogated by any government. It includes the right to life, liberty, equality, dignity and freedom of thought and expression.19 Transgender are also deprived from their basic human right and faces identity crisis. State has now working for the upliftment of the transgender community and has been formulating policies since.

A STEP FORWARD TOWARDS THE TRANSGENDER RIGHTS IN INDIA? 
At present it is not the case where Indian laws in toto ignore the rights of the transgender or seclude them the constitution itself. There has been inclusion of the ‘other’ gender in official documents such as identity cards as passport, voter’s card.20 But ghost of past are still horrendous, making the life of transgender a difficult one. Section 36A of Karnataka Police Act, 1964 criminalizes the movement of transgender in child abduction case and laid down procedure for arresting them without bail. Such laws can be traced back to the historical context in the British era. While India has made considerable progress on rights of transgender people in recent years, most remain socially marginalized and deprived of basic rights, including the right to vote, own property, marry, and claim a formal identity through a passport or other government identification. They are frequently publicly ridiculed and excluded from general society, enduring discrimination and humiliation from the police and medical authorities.21 Although the Election Commission of India when took forward a revolutionary step by including a ‘other’ gender on the voter identity card in year 2009, only round about 28,000 voters registered but unfortunately there was less participation which directly shows that there was lack of awareness among the transgender community or conforming to the seclusion by the other two genders. The rights for the Transgender Persons bill, 2014 was passed unanimously by the parliament in year 2015 22 . This bill is indeed a positive step towards restoring equality within the country when the talk is about transgender. Social inclusion and safety by envisaging transgender courts, a separate one-stop crisis helpline for transgender, pension and unemployment allowances, two percent reservation in government jobs, welfare boards at the center and state level, prohibition of all forms of discrimination in employment and the creation of short stay homes.23 The bill provides establishment of National Commission for transgender’s and also affirmative actions in education, financial and legal aid, free cost sex reassignment surgeries, skill development and Transgender’s history museum.24 There is an urgent need to work on the literacy rates of the transgender community. The drop out in school is more because of the everyday harassment and discrimination faced from the peers and teachers. The proportion of those working in the transgender community is also low thirty eight percent only.25 However this situation can be handled with proper implementation of the above mentioned bill. For instance Tamil Nadu has come forward with by forming a welfare board for the transgender which allows the transgender to utilize government schemes more efficiently.

CONCLUSION
The past can’t be amended but this transgender bill has brought fresh waves with it promising a good future ahead, whereby discrimination and seclusion would be properly dealt with. Already the transgender have faced centuries of dominance and injustice done by the other two genders. But this is a high point very the mindset of the society needs to be changed and the identity of the transgender have to looked with sensitivity towards them keeping in mind all the past atrocities faced by them, their sociological and economic status. Media has to feel responsible for bringing out any such persisting atrocities against the transgender community in front of the common masses. Not only this would help the transgender to raise their voice against the injustice but also would help to change the reticular mindset of the society at large. The judiciary has taken a front foot by way of the judgment directing the society about giving transgender their all basic human rights and equal opportunities as the other two genders. The moot point over here is that, nothing can be done just yet until the transgender considers themselves to be a part of this society and take initiative for involving themselves in official forums and making proper use of the laws made for their welfare 

THE END


1 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2845370/, last visited on 15/02/2016 at 02:22 P.M.
2 Available at http://www.newstatesman.com/world-affairs/2008/05/hijras-indian-changing-rights. last visited on 15/02/2016 at 02:22 P.M
3 Ibid.
4 Available at https://soc384masculinities.wordpress.com/2015/04/24/hijras-indias-historical-transgender/, last visited on 15/02/2016 at 02:22 P.M.
5 Patel, Amisha R. 2010. “India’s Hijras: The Case for Transgender Rights.” George Washington International Law Review 42(4):835-863.
6 George D. Cameron III, International Business Law: Cases and Materials.
7 Available at http://m.iasscore.in/national-details-74.html, last visited on 15/02/2016 at 02:22 P.M.
8 Available at http://kristinamayhem.blogspot.in/p/the-hijras-transgenderism-in-india-man.html, last visited on 19/02/2016 at 02:40 P.M.
9 Available athttp://m.iasscore.in/national-details-74.html, last visited on 10/02/2016 at 08:00 P.M.
10 Ibid.
11 Article 14 of the Constitution of India.
12 Preamble of the Constitution of India.
13 AIR 1978 SC 597.
14 Ibid.
15 Article 15(2) of the Constitution of India.
16 Article 21 of the Constitution of India.
17 Ibid.
18 Writ Petition (Civil) No. 400 of 2012] filed in October, 2012.
19 Available at www.ohchr.org/Documents/Publications/Compilation1.1en.pdf, last visited on 20/02/2016 at 08:00 P.M.
20 Soman, A. (2013). Penal Laws and Rights of transgender: International Perspective with Special Reference to Section 377 of the Indian Penal Code, 1860,. In K. Jaishankar& N. Ronel (Eds.), Second International Conference of the South Asian Society of Criminology and Victimology, SASCV 2013, Proceedings (p. 278). Kanyakumari, Tamil Nadu: South Asian Society of Criminology and Victimology (SASCV) & Department of Criminology and Criminal JusticeManonmaniamSundaranar University Abhishekapatthi, Tirunelveli.
21 Available at https://www.hrw.org/news/2015/07/20/india-back-equal-rights-transgender-people, last visited on 20/02/2016 at 08:00 P.M.
22 Available at socialjustice.nic.in/pdf/TGBillFinal.pdf, last visited on 20/02/2016 at 08:00 P.M.
23 Ibid.
24 Available at http://thewire.in/2015/07/18/transgenders-step-up-demand-for-law-in-monsoon-session-6691/last visited on 20/02/2016 at 09:00 P.M.
25 Available at http://timesofindia.indiatimes.com/india/First-count-of-third-gender-in-census-4-9lakh/articleshow/35741613.cms, last visited on 20/02/2016 at 08:00 P.M.

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