Patna High Court
Veera Yadav vs The Chief Secretary, Government Of ... on 17 August, 2022
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5627 of 2020
======================================================
Veera Yadav, D/o Jhimi Lal Ray, resident of Hatssarganj, Hajipur, Vaishali,
Bihar.
... ... Petitioner/s
Versus
1. The Chief Secretary, Government of Bihar, Main Secretariat, Patna- 800015.
2. Principal Secretary, Food and Consumer Protection Department,
Government of Bihar, Old Secretariat, PO - Sachivalaya, Patna- 800015.
3. Additional Chief Secretary, Social welfare Department, Government of
Bihar, Main Secretariat, Patna - 800015.
4. Union of India Through the Secretary, Ministry of Home Affairs, Govt. of
India, New Delhi.
5. Ministry of Social Justice and Empowerment Govt. of India, New Delhi
through its Secretary.
6. Bihar State Transgender Welfare Board through its Secretary.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Akash Keshav, Advocate
Mr. Deepak Kumar, Amicus Curiae
For the Union of India : Dr. K. N. Singh, Advocate
Mr. Ratnesh Kumar, CGC
For the State : Mr. Lalit Kishore, Advocate General
Mr. Ajay (G.A. 5)
Mr. Pratik Kr. Sinha, AC to GA 5
For CSBC : Mr. Sanjay Pandey, Advocate
Mr. Binod Kr. Mishra, Advocate
Mr. Vivek Anand Amritesh, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 17-08-2022
Following questions arise for consideration:-
(i) What is the nature of the duty cast upon the State to
assimilate the members of the transgender community
into the main stream of society and, reduce
progressively, and eliminate discrimination against
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022
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such a community?
(ii) Does not the State owe positive duty to create avenues
of employment for transgender persons in a manner
that they are enabled in becoming, in true sense
citizens of the country as recognized by the
Constitution?
2. The present writ petition highlights the extremely
difficult conditions faced by the transgender community within
the State of Bihar during the period of the Pandemic (COVID-
19). The Petitioner drew our attention to various incidents such
as denial of rations to certain persons belonging to the
Transgender Community as also asking the Government to
provide 25kg rations to all members of such community;
monetary assistance of Rs. 5000/-; Rs. 2000/- for rent for a
period of at least six months; set up of a speedy grievance
redressal system; and establish facilitation centre; etc.
3. This Court, appreciating effort taken to highlight the
sorry condition in which people of the transgender community
(hereinafter referred to as TGC), were living within the State of
Bihar, vide order dated 01.05.2020 noted that as per the 2011
census more than 40 thousand people, of TGC living within the
State were facing certain issues. Reference was made to the
Transgender Persons (Protection of Rights) Act, 2019
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022
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(hereinafter referred to as the Act) to underline the responsibility
of the State to undertake welfare measures for people of the
community. Relevant portion of the order dated 01.05.2020 is
quoted hereunder:-
"The Transgender Persons (Protection of Rights)
Act, 2019 (hereinafter referred to as 'the Act') was enacted
to provide for protection of rights of transgender persons
and their welfare and for matters connected therewith and
incidental thereto.
As per the Act, no person or establishment shall
discriminate against a transgender in the matter of
education, employment, occupation, health, enjoyment of
goods, accommodation, services, facilities etc. In fact, by
virtue of the provisions contained in Chapter III thereof,
identity of the transgender persons stands recognized with
a right to have proper record maintained by the authorities.
Section 8 mandates the appropriate authority, which in the
instant case, as per definition (Section 2) would be the
State, is required to take certain welfare measures. For
ready reference Section 8 reads as under:-
"8. (1) The appropriate Government shall take steps
to secure full and effective participation of transgender
persons and their inclusion in society.
(2) The appropriate Government shall take such
welfare measures as may be prescribed to protect the rights
and interests of transgender persons, and facilitate their
access to welfare schemes framed by that Government.
(3) The appropriate Government shall formulate
welfare schemes and programmes which are transgender
sensitive, nonstigmatising and non-discriminatory.
(4) The appropriate Government shall take steps for
the rescue, protection and rehabilitation of transgender
persons to address the needs of such persons.
(5) The appropriate Government shall take
appropriate measures to promote and protect the right of
transgender persons to participate in cultural and
recreational activities."
...
Also the State shall consider providing a
Facilitation Centre a one Point Centre dealing with all
problems- for the members of the community at the grass
root level, which can be similar to the Anganwari system
prevalent in the State of Bihar."
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4. Further, vide order dated 27.08.2020, the Principal
Secretary, Social Welfare Department, Government of Bihar, as
well as Government of India were directed to file an affidavit
with respect to compliance of the provisions of the Act as also
the directions issued by Hon'ble the Apex Court in National
Legal Services Authority v. Union of India, (2014) 5 SCC 438
and in particular para 135 thereof which reads as under:-
"135. We, therefore, declare:
135.1. Hijras, eunuchs, apart from binary genders,
be treated as "third gender" for the purpose of
safeguarding their rights under Part III of our Constitution
and the laws made by Parliament and the State Legislature.
135.2. Transgender persons' right to decide their
self-identified gender is also upheld and the Centre and
State Governments are directed to grant legal recognition
of their gender identity such as male, female or as third
gender.
135.3. We direct the Centre and the State
Governments to take steps to treat them as Socially and
Educationally Backward Classes of citizens and extend all
kinds of reservation in cases of admission in educational
institutions and for public appointments.
135.4. The Centre and State Governments are
directed to operate separate HIV serosurveillance centres
since hijras/transgenders face several sexual health issues.
135.5. The Centre and State Governments should
seriously address the problems being faced by
hijras/transgenders such as fear, shame, gender dysphoria,
social pressure, depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for declaring one's
gender is immoral and illegal.
135.6. The Centre and State Governments should
take proper measures to provide medical care to TGs in the
hospitals and also provide them separate public toilets and
other facilities.
135.7. The Centre and State Governments should
also take steps for framing various social welfare schemes
for their betterment.
135.8. The Centre and State Governments should
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022
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take steps to create public awareness so that TGs will feel
that they are also part and parcel of the social life and be
not treated as untouchables.
135.9. The Centre and the State Governments
should also take measures to regain their respect and place
in the society which once they enjoyed in our cultural and
social life."
5. Pursuant to the said order, the affidavit filed by the
Ministry of Social Justice and Empowerment, Government of
India, indicated a Helpline number to which Dr. K. N. Singh,
learned Additional Solicitor General, placed a call to verify the
functionality as also enquire about the nature of calls being
received. It was noted that psychological hardship and financial
problems were the main topic upon which help was being
sought and so this Court requested that the matter of economic
assistance to the TGC to be taken up with the Government in the
following terms:-
"We only request Sri Anjani Kumar, learned AAG
IV, to take up the matter with the Government for
enhancing the economic support to the members of the
community who, at this point in time, are suffering acute
hardship, more so on account of the nature of activity to
which they are engaged. For economic sustenance,
noticeably at this point of time, the Government is
extending financial support to Rs.1500/- per person,
perhaps, which amount should be increased considering the
total members of the transgender community in Bihar not
more than 40,000."
6. Vide order dated 21.09.2020, this Court noticed that
ration was now being distributed, as prayed for, without the
requirement of furnishing ration card as also the efforts taken by
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022
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the Government to establish facilitation centre at the District
level with which two members of the community would be
associated, thereby also providing employment as an incidental
benefit to the larger positive effect the centres would have on
the population of TGC. A tabular chart was filed by respondent-
State placing on record the steps taken by the State in realizing
the statutory obligations as noted in earlier orders. The tabular
chart is reproduced hereinbelow for reference:-
S.No. Direction of the Steps taken by the Status
Hon'ble Court passed State in the
in NLSA Vs UoI Case Compliance of the
Case
1. Hijras, Eunuchs, apart GAD resolution Complied
from binary gender, be number 12722 dated
treated as "third 12.09.2014 declares
gender" for the purpose Hijras, Eunuchs and
of safeguarding their those apart from
rights under Part III of binary gender as
our Constitution and the "third gender".
laws made by the
Parliament and the State
Legislature.
2. Transgender persons' GAD resolution Complied
right to decide their number 12722 dated
self-identified gender is 12.09.2014 declares
also upheld and the Hijras, Eunuchs and
Centre and State those apart from
Governments are binary gender as
directed to grant legal "third gender".
recognition of their
gender identity such as
male, female or as third
gender
3. We direct the Centre GAD resolution Complied
and the State number 12722 dated
Governments to take 12.09.2014 declares
steps to treat them "third gender" shall
socially and get the beneficial
educationally backward treatment as backward
classes of citizens and class in cases of
extend all kinds of admission in
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022
7/26
reservation in cases of Universities and for
admission in appointments to State
educational institutions Governments
and for public services. District
appointments. Council, Municipal
Council, semi-
government services
and public enterprises.
4. Centre and State Letter No. 501 dated Partly
Governments are 27.02.2019 sent from complied,
directed to operate SWD to Health Dept. remaining
separate HIV Sero - about proposal outline under
survellance Centre since prepared regarding. process
Hijras/Transgender face (i) to operate sep-
several sexual health arate HIV Sero -
issues. survellance Centres
5. Centre and State since Hijras/ Trans-
Governments should gender face several
seriously address the sexual health issues.
problems being faced (ii) To address
by Hijras/ Transgender several psychological
such as fear, shame, problems faced by
gender dysphasia, social Transgender.
pressure, depression, (iii) To provide
suicidal tendencies, proper measure for
social stigma, etc and medical care to Trans-
any insistence for SRS gender.
for declaring one's
gender is immoral and
illegal. In continuation of
6. Centre and State earlier letters sent to
Governments should Heath Dept. through
take proper measures to letter 123 dated
provide medical care to 17.01.2018, letter 889
TGs in the hospitals and dated 17.04.2018,
also provide them letter 56 dated
separate public toilets 08.01.2019 and letter
and other facilities. 852 dated 15.05.2020
requesting
compliance.
>> Sensitization and
awareness training of
the plight of such
persons has been done
in SWD through
meeting and Video
Conferencing for all
officials/ workforce of
SWD and its 4
directorates (DSW,
ICDS, DSS, DDE) as
well as State
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022
8/26
Disability
Commission office.
For remaining State
government officials
and other officers a
letter No. 1352 dated
21.05.2019from SWD has been sent.
7. Centre and State Bihar Rajya Kalyan Complied Governments should Board Rules, 2015 ongoing.
also take steps for (notification 1378
framing various social dated 22.07.2015)
welfare schemes for covers this. According
their betterment. to the decision taken
in Bihar Kalyan
Board meeting dated
21.03.2018 for the
purposes of
recommendations and
suggestions for
transgender welfare,
two committees have
been formed by SWD
order 1320 dated
08.06.2018. viz (i)
Executive Committee
and (ii) Advisory
Committee.
8. Centre and State Sensitization and Complied
Governments should awareness training of ongoing.
take steps to create the plight of such
public awareness so that persons in the light of
TGs will feel that they the observations
are also part and parcel contained in WP
of the social life and be (Criminal) 76/2016
not treated as (before Hon'ble
untouchables. Supreme Court) has
been done in SWD
through meeting and
Video Conferencing
for all
officials/workforce of
SWD and its 4
directorates (DSW,
ICDS, DSS, DDE) as
well as State
Disability
Commission office.
For remaining State
government officials
and other officers a
letter No. 1352 dated
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 9/26 21.05.2019 from SWD has been sent.
For Police Officials :
>>Letter no. 2385 dated 02.05.2019 from Deputy Inspector General of Police (Personnel) sent to SWD annexing copy of Letter no.
5811/400655/X.L.
dated 10.12.2018
which was sent by
Inspector General of
Police (Provision) to
apar Police
Mahanideshak
(aparadh anusandhan
dept), all Prashetriya
Police
Mahanirikshak,, all
Shetriya Police Up-
mahanirikshak, all
variya police
adhikshak, all variya
police adhikshak
( Rail Sahit)
requesting them to
ensure compliance
with the SC directions
in WP(Criminal)
76/2016.
9. Centre and the State GAD resolution Complied
Governments should number 12722 dated ongoing.
also take measures to 12.09.2014 declares
regain their respect and 'third gender" shall
place in the society get the beneficial
which once they treatment as backward
enjoyed in our cultural class in cases of
and social life. admission in
Universities and for
appointments to State
Government services,
District Council,
Municipal Council,
semi government
services and public
enterprises.
<< Sensitization and
awareness training of
the plight such
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 10/26 persons has been conducted as stated above.
10. An Expert Committee Steps taken as above. State part has already been complied, constituted to make an Reply from SWD to rest on going in-depth study of the Ministry of Social problems faced by the Justice and Transgender community Empowerment, UOI and suggest measures by Gyapank 1789 that can be taken by the dated 05.07.2019 to Government to Letter F.No. P. ameliorate their 13011/7(3)/2019-DP-
problems and to submit III dated 03.06.2019 its report with from GOI. [This letter recommendations also referred to D.O. within three months of No. 17-08-2013-DP-II its constitution . (Vol. II) dated Let the 21.07.2014 sent from recommendations be the Ministry of Social examined based on the Justice and legal declaration made Empowerment to all in this Judgment and CS which provides in implemented within six its ' Annexure II' a months. summary of conclusions and recommendations of the Expert Committee.
7. Certain other points which required further attention were noted and a supplementary affidavit indicating the degree of fulfillment was directed to be filed. The same reads as under:-
"i. Evidently, the proposal for setting up of a separate HIV Surveillance Centre has yet not been established. ii. As per the decision taken in the meeting dated 21.03.2018 by the Bihar Kalyan Board established under the Bihar Rajya Kalyan Board Rules, 2015 two committees were formed for making recommendations and giving suggestions for the welfare of the members of the community. What is its outcome is not known. iii. The process of sensitization of the residents of the State of the plight and problem faced by the members of the transgender community is under process. But details thereof are not disclosed.
iv. What are the steps taken for affording reservation in the Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 11/26 field of education or services is not clear."
8. One of the contentions put forth by the petitioner, by filing an Interlocutory Application No.02 of 2020, was with respect to employment of persons from TGC into the police force creating a separate unit. In supplementary counter affidavit filed on behalf of the Additional Chief Secretary, Home Department, Government of Bihar on 04.08.2021, it was contented by the State that, considering the low population as also the low level of education available to and availed by people of TGC, a separate unit is practical to be created termed as Special Unit (Transgender) at the District Level. An advertisement for such employment was issued. Perusing the copy of the advertisement placed on record, vide order dated 14.12.2020, this Court observed that ...
"The Advertisement in question, issued by the Central Selection Board of Constable, falls short of the Constitutional mandate.
From the Advertisement, it is not clear as to whether persons falling under the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the Act) can even apply for the post or not. The Advertisement only specifies the gender of the applicants to be 'male' or 'female'. Does it imply that the persons hailing from the Transgender Community are precluded from applying at all, or should not the authorities clarify that it shall also be open for such persons to apply?"...
...
Well, at this point, we need not go into the aspect of reservation, but prima facie what we find is that the persons belonging to the Transgender Community are Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 12/26 totally precluded from the process of applying for a post of a constable, much less, agitate their right of reservation.
We need not remind the State of the mandate of the Constitution as also the law laid down by Hon'ble the Apex Court, mandating the State to adopt a pro-active approach in pursuing the causes of persons with disabilities; and more so in the light of the Act.
We are hopeful that the State would adopt a sensitive approach and immediately take remedial measures and the last date to invite applications, for the members of the Transgender Community, shall be extended for such time and period, the State determines it to be feasible and appropriate.
Equally, State shall ensure giving wider publicity of the action taken to reach out to the members of such community, enabling them to apply for the post in question.
Till further orders, the process of finalization of the list of candidates to appear in the examination shall not be finalized by the Central Selection Board of Constable. However, the process of preparation may continue.
...
An affidavit filed by the State does indicate grant of benefit of reservation for certain posts, as a class to the Transgenders, in the category of OBC. If that were so, then how can such a benefit accorded, unless a person applies and not precluded from applying for the post.
It appears that either the officers are working at cross purposes; without co-ordination; or not adequately sensitized, both of law as also the welfare measures undertaken by the State."
9. Pursuant to the above quoted observations, the State Government appreciably with a notification dated 14th January, 2021 took a decision to implement reservation to the position of Constable/Sub-Inspector for people of TGC-one post per five hundred.
10. Vide order dated 03.02.2021, this Court took note of affidavit filed by Additional Chief Secretary, Government of Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 13/26 Bihar, relevant portion of which is reproduced hereinunder:-
"3. It is further submitted that as stated above, the total population of transgender community in the State is very low i.e. 0.039% of total population of the State. Possibility of eligible candidate of transgender community for appointment of constable and sub inspector of Police would also very low. In above situation, it is considered practical to create a separate unit of Transgender Police Personnel named as Special Unit (Transgender) at the District Level under the District S.P. Initially, the structure of this unit will be 1-4(One officer-4 Constable/Havildar). As and when during the course of time the recruited number of transgender personnel increases, the number of units will be increased and convertedinto a squad strength comprising of 2-8, and subsequently into a platoon strength of 6-24."
(Emphasis supplied)
11. It was in the light of this affidavit, the process of selection by Central Selection Board of Constables was allowed to continue in terms of the advertisement. Keeping in view the reformative nature of this inclusive selection process, this Court suggested that the lowest possible application fee may be charged from applicants from the reserved category.
12. Vide order dated 09.03.2021, the Court noted that the issue to be considered is whether provisions of the Act would apply to people of TGC seeking appointment within the State. Such benefits stood accorded for recruitment of Constables/Inspectors. In addition to this, the Court suggested that benefit may also be extended to other Departments within the State considering the small population numbers as also have Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 14/26 an overall positive impact on the community. The relevant portion of the order dated 09.03.2021 is quoted hereinuder:
"Perhaps, the limited issue which arises for consideration is as to whether benefit of the provisions of the Transgender Persons (Protection of Rights) Act, 2019 would be applying to the transgenders for seeking appointment in the State of Bihar. We are informed that such benefit stands accorded for recruitment of Constables/Inspectors, Home Department. In fact, considering the total population of the transgender community in Bihar, which is 0.039% (Approximately 39,000 and odd), perhaps, the Government may consider conferring similar benefit with respect to other Departments.
A decision in the affirmative would not only uplift the lifestyle and education of the persons, but also going to be a correct step in bringing them into the mainstream. Perhaps, at this point in time, there may not be very many persons to be even eligible to apply. But then, such benefit would only inspire persons from such community to undertake education and to become eligible for appointment to such posts. May be, reservation on regular basis can be confined upto O.B.C. category for transgenders. But then, that is a decision which the Government has to take."
13. The State is under constitutional as well as statutory obligation to protect the transgender community from the pervasive discrimination that they are facing. As citizens of India, they not only have all rights under the golden triangle of the Indian Constitution, i.e. Articles 14, 19 and 21, as recognized by Hon'ble the Supreme Court in National Legal Services Authority Judgment (supra), but also, such obligation imposed by an enactment of statute as well as International Instruments to which, India as a Nation is a Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 15/26 signatory. Provisions which necessitate taking of steps for welfare of this community are reproduced hereinbelow for emphasis.
RELEVANT PROVISIONS
14. After the recognition of transgender persons by Hon'ble the Supreme Court in the celebrated National Legal Services Authority Judgment (supra), the Union Government has enacted certain laws for the welfare of this hitherto neglected community, the same are being reproduced for effect:-
The Transgender Persons(Protection of Rights) Act 2019.
15. The object and reasons of clause of this Act reads- 'An Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto'.
16. Under Chapter IV of the Act titled as "Welfare Measures By Government", the Government is obligated to initiate welfare measures for persons of the transgender community.
17. Section 8 obligates the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in society; (2) such welfare measures as may be prescribed to protect the rights and interests of transgender persons, and facilitate their access to Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 16/26 welfare schemes framed by that Government; (3) formulate welfare schemes and programmes which are transgender sensitive, non-stigmatising and non-discriminatory; (4) take steps for the rescue, protection and rehabilitation of transgender persons to address the needs of such persons; (5) take appropriate measures to promote and protect the right of transgender persons to participate in cultural and recreational activities.
18. Under Section 22, the Government is empowered to make rules for carrying out the provisions of the Act.
19. The Transgender Persons (Protection of Rights) Rules were notified in 2020. Rule 7 thereof provides for Welfare measures, education, social security and health of transgender persons by appropriate Government; notifying the general category transgender persons in 'other backward classes' so as to enable them to avail the benefits of vertical reservation provided for the other backward classes; review all existing educational, social security and health schemes and welfare measures to include transgender persons so as to protect their rights and interests and facilitate their access to such schemes and welfare measures; formulate educational, social security and health schemes and welfare schemes and programmes in a manner so Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 17/26 as to be transgender sensitive, non-stigmatising and non- discriminatory to transgender persons; review Acts, rules, regulations, codes, bye-laws, and such statutes for the rescue, protection and rehabilitation of transgender persons to address their needs; create facilities such as separate persons to participate in cultural activities; carry out awareness campaigns to enlighten and facilitate transgender persons to avail benefits of welfare schemes as well as to other stakeholders in developing appropriate change in behavior towards transgender persons.
20. In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, Hon'ble the Supreme Court held as under:-
"181. The observation made in Suresh Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution. The mere fact that the percentage of population whose fundamental right to privacy is being abridged by the existence of Section 377 in its present form is low does not impose a limitation upon this Court from protecting the fundamental rights of those who are so affected by the present Section 377 IPC.
182. The Constitution Framers could have never intended that the protection of fundamental rights was only for the majority population. If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as "majority persons" or "majority citizens". Instead, the provisions have employed the words "any person" and "any citizen" making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 18/26 the catastrophic situation when the fundamental rights of the majority of citizens get violated.
183. Such a view is well supported on two counts, namely, one that the constitutional courts have to embody in their approach a telescopic vision wherein they inculcate the ability to be futuristic and do not procrastinate till the day when the number of citizens whose fundamental rights are affected and violated grow in figures. In the case at hand, whatever be the percentage of gays, lesbians, bisexuals and transgenders, this Court is not concerned with the number of persons belonging to the LGBT community. What matters is whether this community is entitled to certain fundamental rights which they claim and whether such fundamental rights are being violated due to the presence of a law in the statute book. If the answer to both these questions is in the affirmative, then the constitutional courts must not display an iota of doubt and must not hesitate in striking down such provision of law on the account of it being violative of the fundamental rights of certain citizens, however minuscule their percentage may be."
21. In National Legal Services Authority (supra), Hon'ble the Supreme Court held as under:-
"66. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognising that sex discrimination is a historical fact and needs to be addressed. The Constitution-makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalisations of binary genders. Both gender and biological attributes constitute distinct components of sex. The biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one's self-image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of "sex" under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression "sex" used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 19/26
67. TGs have been systematically denied the rights under Article 15(2), that is, not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.
68. Articles 15(2) to (4) and Article 16(4) read with the directive principles of State policy and various international instruments to which India is a party, call for social equality, which TGs could realise, only if facilities and opportunities are extended to them so that they can also live with dignity and equal status with other genders.
74. 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 the right to dignity and freedom guaranteed under our Constitution.
75. Article 21, as already indicated, guarantees the protection of "personal autonomy" of an individual. In Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 20/26 activities to take part in. 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 India.
80. Article 21, as already indicated, protects one's right of self-determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of "personal autonomy" and "self-determination".
Hijras/eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.
81. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude hijras/transgenders from their ambit, but the Indian law on the whole recognise the paradigm of binary genders of male and female, based on one's biological sex. As already indicated, we cannot accept the Corbett Principle of "biological test", rather we prefer to follow the psyche of the person in determining sex and gender and prefer the "psychological test" instead of "biological test". Binary notion of gender reflects in the Penal Code, 1860 for example, Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NREGA, 2005, etc. Non-recognition of the identity of hijras/transgenders in the various legislations denies them equal protection of law and they face widespread discrimination.
82. Article 14 has used the expression "person" and Article 15 has used the expression "citizen" and "sex" so also Article 16. Article 19 has also used the expression "citizen". Article 21 has used the expression "person". All these expressions, which are "gender neutral" evidently refer to human beings. Hence, they take within their sweep hijras/transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one's personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 21/26 the ground of gender identity, including those who identify as third gender.
100. Speaking for the vision of our Founding Fathers, in State of Karnataka v. Ranganatha Reddy [(1977) 4 SCC 471 : AIR 1978 SC 215] , this Court speaking through Krishna Iyer, J. observed : (SCC p. 496, paras 44-45) "44. The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine, economic democracy sans which political democracy is chimerical. We say so because our Constitution, in Parts III and IV and elsewhere, ensouls such a value system, and the debate in this case puts precisely this soul in peril.
45. ... Our thesis is that the dialectics of social justice should not be missed if the synthesis of Part III and Part IV is to influence State action and court pronouncements. Constitutional problems cannot be studied in a socio-economic vacuum, since socio- cultural changes are the source of the new values, and sloughing off old legal thought is part of the process of the new equity-loaded legality. A Judge is a social scientist in his role as constitutional invigilator and fails functionally if he forgets this dimension in his complex duties."
(emphasis in original)
105. The concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognise the right of one and all amongst the citizens of these basic essentials designed to flower the citizen's personality to its fullest. The concept of equality helps the citizens in reaching their highest potential. Thus, the emphasis is on the development of an individual in all respects.
106. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set-up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 22/26 which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognise the right of a human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspect of self-determination, dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity."
OBLIGATION UNDER INTERNATIONAL LAW
22. In keeping with Article 51 of the Constitution of India which relates to fostering respect for international law and treaties, it is pertinent to mention in light of the expanded scope of the petition vide order dated 20.05.2020, that we must also obligations of the state under international law, which will serve as a markers of the direction in which our efforts, collectively as institutions of a democracy, should proceed.
23. Article 4 (1) of the International Covenant for Civil and Political Rights to which India is a signatory, imposes an obligation upon the State, even in times of emergency, to not discriminate. The text of the Article is reproduced hereunder-
"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 23/26 sex, language, religion or social origin."
24. Article 26 of International Covenant for Civil and Political Rights reads as under:-
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
25. This has been echoed by Hon'ble the Apex Court in Navtej Singh Johar (supra).
26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights reads as under:-
"The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
27. Article 11 of this Covenant recognizes that everyone has a right of an adequate standard of living, in the following terms-
"1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 24/26 fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed..."
28. The UN Fact Sheet on 'International Human Rights Law and Sexual Orientation & Gender Identity' puts it succinctly and directly as-
"The equality and non-discrimination guarantee provided by international human rights law applies to all people, regardless of sex, sexual orientation and gender identity or "other status."
There is no fine print, no hidden exemption clause, in any of our human rights treaties that might allow a State to guarantee full rights to some but withhold them from others purely on the basis of sexual orientation and gender identity."
29. From the holding and observations of Hon'ble the Supreme Court in the above judgments as also the statutory as well as the International obligations referred to above, the duty of the State cannot be given further emphasis to. As a welfare State, it is first and foremost responsibility of the State to ensure the well being of all citizens. In case of the transgender community, not only were the eyes of the State shut, but also the prejudices so engrained were continued without thought.
30. Significantly now, since the institution of this public interest litigation, the State has taken a number of appreciable steps which will/are having a positive impact on the community. It is hope which we hereby express, that the State will continue Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 25/26 making efforts and breaking new ground in realization of all rights to the TGC as they are entitled under the Constitution of India.
31. Beneficial treatment to members of TGC stands granted in compliance of directions of the Hon'ble Supreme Court in National Legal Services Authority (supra) as per the chart reproduced above. However, systemic discrimination shall not be cured only by employment opportunities. Other than welfare measures directed at TGC, the State must take steps to root out discrimination from within the general public. That may include awareness, sensitization programmes; educational reforms, training for educators; etc.
32. Apart from the steps that already stands taken, we direct that the steps labelled as pending in the chart referred to above, if still continue in the same status, be expedited.
33. Considering that much time has passed since the last order of the Court, we further direct the Additional Chief Secretary, Social Welfare Department, Government of Bihar to convene a meeting, seek updates on the welfare measures and issue appropriate directions to ensure that further, all possible steps are taken for benefit of this community without any further delay.
Patna High Court CWJC No.5627 of 2020 dt.17-08-2022 26/26
34. Issues are answered accordingly.
35. This petition as also the associated interlocutory applications stand disposed of with the above observations and directions.
(Sanjay Karol, CJ) ( S. Kumar, J) Sunil/ sujit/-
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