No Acts & Articles mentioned in this case
THE HON’BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON’BLE SRI JUSTICE C.V.BHASKAR REDDY
+ WRIT PETITION (PIL) Nos.44 and 355 of 2018
and 74 of 2020
W.P. (PIL) No.44 of 2018
% Date: 06.07.2023
# V. Vasanta Mogli
… Petitioner
v.
$ The State of Telangana,
Rep.by its Principal Secretary, Social Welfare Department,
Secretariat, Hyderabad.
And others.
… Respondents
! Counsel for the petitioners : Ms. Jayna Kothari,
learned Senior Counsel representing
Mr. K.Sai Sandeep Pareekshit
^ Counsel for respondents : Mr. Andapalli Sanjeev Kumar,
learned Special Government Pleader
< GIST:
HEAD NOTE:
2
? CASES REFERRED:
1. (2014) 5 SCC 438
2. (2017) 10 SCC 1 : 2017 SCC OnLine SC 996
3. 2014 (3) CTC 497
4. AIR 2015 All 124
5. 2015 SCC OnLine Del 12514
6. 2016 4 L.W. 594
7. AIR 1954 SC 300
8. AIR 1963 SC 1295
9. (1970) 1 SCC 248
10. (1978) 1 SCC 248
11. (2016) 7 SCC 761
12. (1976) 2 SCC 521
13. (2014) 1 SCC 1
14. (2018) 10 SCC 1
15. 2009 SCC OnLine Del 1762
3
THE HON’BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON’BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION (PIL) Nos.44 and 355 of 2018
and 74 of 2020
COMMON ORDER : (Per the Hon’ble the Chief Justice Ujjal Bhuyan)
Issue raised in all the three public interest litigations
(PIL) being inter-related, those were heard together and
are being disposed of by this common judgment and
order.
2. We have heard Ms. Jayna Kothari, learned Senior
Counsel appearing for Mr. K. Sai Sandeep Pareekshit,
learned counsel for the petitioners and Mr. Andapalli
Sanjeev Kumar, learned Special Government Pleader for
the respondents.
3. In W.P. (PIL) No.44 of 2018 prayer made is to declare
Telangana Eunuchs Act, 1329 Fasli as ultra vires and
unconstitutional.
4. Petitioners are transgender persons residing in the
State of Telangana.
4
5. Telangana Eunuchs Act, 1329 Fasli previously
referred to as Andhra Pradesh (Telangana Area) Eunuchs
Act, 1329 Fasli was first enacted in the year 1919 and is
applicable to eunuchs as defined under the said Act.
Telangana Eunuchs Act, 1329 Fasli (briefly, ‘the Act’
hereinafter) mandates maintenance of a register of
eunuchs residing in the city of Hyderabad who are
suspected of kidnapping or emasculating boys or of
committing unnatural offences or abetting the same. The
Act permits arrest of transgender persons without a
warrant and punished with imprisonment, if found in
female clothing or ornamented or singing, dancing or
participating in public entertainment in a street or a
public place or where a transgender person is found in the
company of a boy below the age of sixteen years.
6. It is contended that the aforesaid Act is an outdated
legislation and is a complete anachronism with modern
day life and thinking. It is a discriminatory law that
criminalises the transgender community unfairly without
5
any legal basis. Vires of the Act has been questioned on
the ground that it targets the transgender community and
treats them as a distinct class with no reasonable basis
for such classification, besides permitting discrimination
against persons on the basis of their sexual orientation
and gender, thus violating Articles 14 and 15(1) of the
Constitution.
6.1. It is further contended that the Act imposes
arbitrary restriction on the freedom of speech and
expression of the transgender community and also
breaches their fundamental right to privacy. Thus, the
said legislation is violative of Articles 19(1) and 21 of the
Constitution. It is also contended that the said legislation
is against the letter and spirit of the Supreme Court
decision in
National Legal Services Authority (NALSA) v. Union
of India
1 which has declared eunuchs etc., as third gender
and also directing the Central and State Governments to
treat them as socially and educationally backward classes
of citizens. Petitioners have also relied upon the decision
1
(2014) 5 SCC 438
6
of the Supreme Court in K.S.Puttaswamy v. Union of India
2 to
contend that right to privacy is one of the facets of the
right to life and dignity and thus is a cherished right
under Article 21 of the Constitution. Impugned legislation
violates the right to identity, personal autonomy and the
right to be left alone, all facets of the right to privacy of the
transgender people.
7. Petitioners had filed I.A.No.1 of 2018 in W.P. (PIL)
No.44 of 2018 seeking a stay on the operation of the
Telangana Eunuchs Act, 1329 Fasli.
8. This Court vide the order dated 18.09.2018 had
admitted the public interest litigation and passed an
interim direction that no arrest or prosecution shall be
made invoking the provisions of Andhra Pradesh
(Telangana Area) Eunuchs Act, 1329 Fasli, now called the
Telangana Eunuchs Act, 1329 Fasli.
2
(2017) 10 SCC 1 : 2017 SCC OnLine SC 996
7
9. Respondent No.2 i.e., State of Telangana represented
by the Principal Secretar y to Home Department,
Government of Telangana has filed affidavit.
9.1. Adverting to the decision of the Supreme Court in
NALSA (supra), it is stated that following the said decision,
Parliament has enacted the Transgender Persons
(Protection of Rights) Act, 2019. Referring to various
provisions of the Transgender Persons (Protection of
Rights) Act, 2019, it is stated that the said Act is the first
statutory enactment meant for amelioration of the
conditions of the transgenders. The said Act answers all
the contentions raised by the petitioners.
9.2. Insofar challenge to the Telangana Eunuchs Act,
1329 Fasli is concerned, it is the contention of respondent
No.2 that the Central Act i.e., the Transgender Persons
(Protection of Rights) Act, 2019 covers only welfare
measures to transgenders. There is no provision for
specific offences committed usually by transgenders i.e.,
kidnapping or emasculating boys or committing unnatural
8
offences or any other offences abetting the commission of
such offences. The impugned legislation governs and
addresses the same. Petitioners claim for protection in
respect of offences committed by transgenders under the
guise of discrimination is not justified. The issue of
discrimination has been taken care of by the Central Act.
9.3. It is stated that both Parliament and State
Legislatures can legislate on the same subject. Referring to
Section 4 of the Telangana Eunuchs Act, 1329 Fasli, it is
contended that fundamental right is not absolute. It is
subject to reasonable restriction in the collective interest
of the society. It is asserted that the said Act is enacted in
the interest of public order and to identify transgenders
indulging in such acts. There is no discrimination shown
against the transgenders in the Act. In the circumstances,
respondent No.2 seeks dismissal of the public interest
litigation.
9
10. Next comes WP (PIL) No.355 of 2018. The same has
been filed by the petitioners of WP (PIL) No.44 of 2018 and
seek the following reliefs:
a. issue a writ, order or direction to the
respondents to frame a comprehensive policy in the
State of Telangana to secure and protect the rights of
transgender persons, and which will also lay down
guidelines for self-identification of transgender
persons and obtaining legal identity documents in
their self-identified gender;
b. issue a writ, order or direction to the
respondents to constitute a Transgender Welfare
Board within a period of three months, in which
there will be at least 50% representation from the
transgender community;
c. issue a writ, order or direction to the
respondents to provide reservation in admissions in
educational institutions and in public employment
for transgender persons and frame a scheme for such
reservation;
d. issue a writ, order or direction to the
respondents to provide scholarship for education of
transgender persons at all levels of education,
including secondary school and high school
education as well as at the graduate and post-
graduate levels and vocational training institutes;
10
e. issue a writ, order or direction to the
respondents to frame social welfare schemes/
programmes, including but not limited to housing
schemes for the betterment of transgender persons,
financial assistance for self-employment
opportunities, skill development programmes, ration
cards within a period of three months;
f. issue a writ, order or direction to the
State Government to frame schemes for providing
access to free medical care for transgender persons
in all Government Hospitals, including the operation
of HIV centres and provision of related medical care;
g. direct the respondents to provide gender
transition and sex reassignment surgery services
(with proper pre and po st-operation/transition
counselling) for free in public hospitals in Telangana;
h. direct the respondent State Government
to make available the medical facility of Sex
Reassignment Surgery to transgender persons free of
cost in all Government Hospitals;
i. issue a writ, order or direction to the
respondents to provide separate toilets for
transgender persons in educational institutions and
every public utility building including hospitals, bus
stations, railway stations, public toilets etc within a
period of three months;
j. issue a writ, order or direction to the
respondent State Government to implement a
pension scheme for transgender persons;
11
k. direct the respondents to implement
stigma and discrimination reduction measures at
various settings through a variety of ways, including
gender sensitization curriculum in schools, colleges,
universities, mass media awareness for the general
public to focussed training and sensitization for
government officials, public servants, police officials
and health care providers;
l. issue a writ, order or direction to the
State Government to take necessary measures to
create awareness among the public to integrate
transgender persons to be part of family and social
life and further to enable transgender persons to
freely access all public institutions, public spaces,
public toilets, parks, playgrounds, roads, educational
institutional, malls, market places, hospitals, hotels,
restaurants etc without discrimination; and
m. pass such other order(s) as may be seen
fit in the facts and circumstances of the case in the
interest of justice and equity.
11. Petitioners have again relied upon the decision of the
Supreme Court in
NALSA (supra) as well as some of the
decisions of different High Courts in support of the
prayers made. Petitioners have also placed reliance on the
report of the expert committee on the issues relating to
transgender persons published in January, 2014 as well
12
as the report of the National Commission for Backward
Classes dated 15.05.2014 recommending that the
transgender community be tr eated as a socially and
educationally backward class of citizens.
12. It is stated that following the decision of the
Supreme Court in
NALSA (supra), several States including
West Bengal, Rajasthan, Chattisgarh and Maharashtra
have established Transgender Welfare Boards.
Constitution of such a Board in the State of Telangana
would be in the interest of the transgender community.
Reference has also been made to the Karnataka State
Policy on Transgender Persons, 2017 and that of other
States.
13. In this case though notice was issued on
20.11.2018, it appears that no affidavit has been filed by
the respondents.
14. This brings us to the third public interest litigation
being W.P. (PIL) No.74 of 2020.
13
15. In this writ petition filed by Vyjayanti Vasanta Mogli
@ M.Vijay Kumar, petitioner has prayed for the following
reliefs:
For the reasons stated in the accompanying
affidavit filed in support of the present writ petition,
it is therefore prayed that this Hon’ble Court may be
pleased to issue a writ, order or direction more
particularly one in the nature of “writ of mandamus”
(a) direct the respondents herein to provide
free of cost rations, food and nutrition and provisions
including vegetables and fruit to members of the
transgender community from ration shops and also
from other outlets without insisting on the
production of ration card;
(b) direct the respondents herein to provide
free of cost medicines to transgender person
including HIV medications, hormone therapy
medicines, diabetes and other medications to be
made available to transgender persons from primary
health centres and from government and public
hospitals;
(c) direct the respondents herein to allow
transgender persons to apply for and provide the
payment of three months social security pension to
transgender persons under the Aasara Scheme;
(d) direct the respondents herein to provide
free LPG cylinders and waive electricity bill for six
14
months to transgender persons on the lines of similar
assurance for three months under the PM Garib
Kalyan Yojana;
(e) direct the respondents herein to extend the
Aarogyashri government medical insurance to
transgender persons and direct that Aarogyashri
includes health challenges of Covid-19;
(f) direct the respondents herein to take
appropriate action against those who are targeting
the transgender persons by falsely labelling them in
public as the potential carriers of HIV positive and
Corona-virus and consequently direct the
respondents herein to protect the life of transgender
persons in all public places by providing appropriate
security;
(g) direct the respondents to place moratorium
on the collection of rents till the end of June free of
interest and late payment penalty fees and pass
orders directing that landlords should not evict
transgender persons from existing rental premises for
non-payment of rent during the present period;
And pass such other order or orders as may
deem fit and proper in the circumstances of the case.
15.1. Basically, petitioner had sought for relief from the
authorities in the form of ration, health facilities etc.,
during the covid-19 period. Additional prayer made is to
15
provide the benefit of Aasara Scheme to transgender
persons.
15.2. It is stated that during the covid-19 induced lock
down, the transgender community faced extreme hardship
particularly with regard to ration, social security and
access to medication. G.O.Ms.No.17 dated 05.11.2014
was issued by the Panchayat Raj and Rural Development
(RD.I) Department of the Government of Telangana
introducing a new scheme called Aasara Pension Scheme
to provide substantial financial benefits to the most
vulnerable sections of society to ensure a secured life with
dignity for all poor persons. The scheme would be
available to people having HIV/AIDS, widows,
incapacitated weavers and toddy toppers who have lost
their means of livelihood with growing age. The categories
of pensioners entitled to Aasara Pension Scheme are as
under:
(1) old age; (2) widow;
(3) disabled; (4) weavers;
(5) toddy toppers; (6) persons with HIV/AIDS
16
15.3. All such categories of pensioners would be paid
monthly pension of Rs.1,000/-. The above scheme came
into effect from 01.10.2014.
16. On 27.04.2020, this Court had passed the following
order:
This writ petition has highlighted the plight of
transgender population during the Covid-19 lockdown.
Mr. B.S. Prasad, the learned Advocate General is
directed to accept notice on behalf of the respondents.
He is further directed to submit a report with regard to
(i) number of transgenders living in the major cities of
the State, (ii) the concrete steps being taken by the
State Government for ensuring that the members of the
transgender community have ready availability of
foodgrains, consumable items, and medicines as per
their need and requirements, and (iii) the number of
NGOs with which the Government is coordinating in
order to ensure that all the essential commodities do
reach the transgender community through these NGOs.
The State Government is further directed to
ensure that these commodities are given to the
members of the transgender community free of cost
and without insisting on the production of ration
card/white card etc. The report shall be submitted by
the learned Advocate General on or before May 08,
2020.
17
16.1. Thereafter, Mr. B.S.Prasad, learned Advocate
General submitted two reports before the Court, the first
report dated 26.05.2020 and the second report dated
04.06.2020. On consideration of the two reports, this
Court passed the following order on 29.06.2020:
A bare perusal of the report dated 26.05.2020,
clearly reveals that it is a highly vague report. For, in
para 5, the respondents claim that "they are making
efforts to establish two Shelter Homes exclusively for
transgenders". But the details of where these shelter
homes are being constructed, and the capacity of these
shelter homes, are not given in the report.
Similarly, although this Court had asked the
exact figures with regard to the population of the
transgender community in the major cities of the State,
in para 11, a bald statement has been made that "the
Government has identified 2,175 transgenders in the
State of Telangana". Whether this number includes the
transgenders in the major cities of Telangana, or merely
in the GHMC area is unclear.
Similarly, in para 14, it is claimed that
"medicines are also made available as per the
requirement of the transgender community". It is
unclear as to when the medicines were made available?
By whom they were made available? And to whom they
were made available? Therefore, the essential data is
conspicuously missing.
18
Lastly, it is also stated that "dry ration supplies
are arranged for 610 persons through local donors, and
NGOs by reaching out to them". Despite the fact that
the Government claims that it is distributing 5 kg rice,
1 kg tur dal, 200 grams chilli powder, 1 lr sunflower
oil, 250 grams tamarind, 250 grams salt, 1 kg onions,
200 grams turmeric powder, one dettol soap, and one
reusable cloth mask, it is unclear whether the
members of the transgender community are permitted
to buy their foodgrains from the Public Distribution
System, or not?
Learned counsel for the petitioner submits that
many of the transgender community do not have
availability of ration cards, because in the form to be
filled up for seeking ration card, the third gender is not
indicated. In the absence of having valid ration cards,
the transgender community is denied access to the
Public Distribution System. She further submits that
due to the spike in COVID-19 cases in the State,
despite the fact that a member of the transgender
community may be contracting COVID-19, their
medical care requires special attention. For, according
to the learned counsel, it is this community which is
unfortunately neglected, and is ostracized by large
number of people. Until and unless special wards are
designated for housing the transgender community in
the hospitals, there is a grave possibility that the
medical needs, and medical attention of such
transgender persons may be neglected by medical staff,
and even by doctors. Therefore, she prays that a
19
direction should be issued to the Government to
instruct the medical staff, firstly, to have separate ward
for the members of the transgender community, and to
instruct them to take special care of such persons.
This Court directs the learned Advocate General
to immediately bring the two points raised by the
learned counsel for the petitioner to the notice of the
Government. He is also directed to inform this Court on
06.07.2020 as to whether any action has been taken by
the Government on these points, or not?
16.2. When the matter was taken up next on 07.07.2020,
Ms. Kothari, learned Senior Counsel for the petitioners
submitted before the Court that the State had taken a
position that it was not able to distribute foodgrains to the
members of the transgender community who do not have
ration cards in their names. However, she pointed out that
under the Pradhan Mantri Gareeb Kalyan Yojana, Hon’ble
Prime Minister had announced that foodgrains would be
distributed even to those who are not holders of ration
cards. The aforesaid sche me was extended upto
November, 2020. She pointed out that according to the
Central Government, State of Telangana had lifted till then
only one per cent of the foodgrains being distributed
20
under the Central Scheme. Therefore, it was submitted
that the transgender commu nity members who do not
have ration cards in their names should be given the
benefit of the Central Scheme. On such submission, this
Court directed learned Advocate General to instruct the
Commissioner of Civil Supplies Department for extending
the benefit of the Central Scheme not only to the members
of the transgender community but also to others who may
not be holding ration cards in their names. Learned
Advocate General sought for time to file a report with
regard to the distribution of food grains to those members
of the transgender community who were not holders of
ration cards.
16.3. On the next date of hearing i.e., 14.07.2020, learned
Advocate General submitted a report of the Commissioner
of Civil Supplies and ex officio Secretary to the
Government of Telangana dated 10.07.2020. As per the
report, 10 kgs of rice were being provided to each
transgender person free of cost from July to November,
2020 under the Atma Nirbha r Bharat Yojana. However,
21
this Court recorded that it was not clear whether 10 kgs of
rice would be for the entire period from July to November,
2020 or for each month. That apart, this Court noticed
that as per the instructions issued by the Commissioner,
a member of transgender community was subjected either
to medical examination by a doctor or to a physical
examination by the Revenue Tahsildar. Referring to the
decision of the Supreme Court in NALSA (supra), this
Court observed that subjecting a transgender person to
physical examination was not only demeaning but also
amounted to violation of the right to privacy. It was
thereafter that this Court passed the following order on
14.07.2020:
The learned counsel for the petitioner submits
that most of the transgenders do have either the
Aadhaar card or other Government identification
documents with them. These documents would clearly
reveal that they are transgenders.
Therefore, it should be sufficient if the
Government were to direct the Fair Price Shop owners
to distribute 10 kgs of rice per month to the
transgenders, who presents either the Aadhaar Card,
or any other Governmental identification document.
22
The learned counsel further submits that,
according to the instructions, a transgender is required
to go to a Fair Price Shop having ePOS devices, but is
not permitted to pick up 10 kgs of rice from manually
operated Fair Price Shops. According to her, the
inability of transgender to pick up the quantity of rice
from manually operated fair price shop will create
difficulties for the transgender community.
Once these factors have been pointed out to the
learned Advocate General, he seeks time for getting
further instructions from the Government.
This Court directs the respondents to clarify
whether 10 kgs of rice would be available on a monthly
basis or for the complete period of July to November.
2020. Secondly, the Government should consider if the
transgender can receive the said quantity of rice on the
basis of the Aadhaar card, or any other Government
identification document. Thirdly, the Government
should also consider if transgender community
members can pick up the above mentioned quantities
of rice from any of the Fair Price Shops rather than
restricting it only to the shop having ePOS devices.
The learned Advocate General seeks time to
address this Court on the above mentioned directions.
16.4. In the hearing held on 20.08.2020, this Court
noticed that as per report dated 05.07.2020,
Commissioner to the Government of Telangana, Vaidya
23
Vidhana Parishad had issued an order on 02.07.2020
directing Superintendents of all hospitals providing covid-
19 protection not to neglect transgender patients. Another
report dated 22.07.2020 was submitted by the learned
Advocate General which commu nicated that members of
the transgender community would be given 10 kg rice per
month free of cost till November, 2020. Thus, this Court
noted that concerns expressed in the public interest
litigation were taken care of. Nonetheless learned Senior
Counsel for the petitioners made a submission before the
Court to keep the PIL pending so that the Court can
monitor as to whether orders issued by the Government
were being implemented in letter and spirit. Observing
that the concern of the petitioners is a genuine one, this
Court decided to keep the PIL pending.
16.5. In the proceedings held on 04.03.2021, learned
Senior Counsel for the petitioners had submitted that the
PIL would be confined to the question regarding permitting
transgender persons to apply for and to receive social
security pension under the Aasara Scheme and for
24
directing the respondents to extend Arogyasree
Government Medical Insurance to them.
16.6. In the hearing held on 02.02.2022, Mr. Santosh
Kumar, learned counsel appearing for the State submitted
before the Court that th e State was vaccinating
transgender persons irrespective of whether one possessed
Aadhaar card or not. In the light of the above, this Court
directed the State Government to provide a centre in each
district of the State of Telangana in the District Hospital
for vaccination of people belonging to the transgender
community. This Court clarified that while carrying out
vaccination, the said officials would not insist on proof of
Aadhaar card as large number of members of transgender
community do not possess Aadhaar card. As a matter of
fact, learned Government Pleader had given an
undertaking that State would not have any objection in
vaccinating people from the transgender community even
without Aadhaar card. This Court directed the State to
publicize the details of the centres in the media so that
25
people from the transgender community could get
themselves vaccinated.
16.7. In the proceedings held on 20.09.2022, this Court
had passed the following order:
This Public Interest Litigation (PIL) raises
important questions relating to the transgender
community in the State of Telangana.
Though order dated 02.02.2022 was confined to
vaccination of the members of the transgender
community, we are of the view that the prayer made in
the Public Interest Litigation transcends such limited
issue.
On the next date, learned Government Pleader
shall submit the particulars of the Board recently
constituted by the State of Telangana for the
transgender community and also of extension of the
benefit conferred by G.O.Ms.No.17 dated 05.11.2014 to
members of the transgender community.
16.8. This Court observed that though initial thrust of the
PIL was confined to vaccination of the members of the
transgender community, issue raised in the PIL
transcends such limited issue. Learned Government
Pleader was directed to submit particulars of the Board
constituted by the State of Telangana for the transgender
26
community and also for extension of the benefits conferred
by G.O.Ms.No.17 dated 05.11.2014 which introduced the
Aasara Pension Scheme to members of the transgender
community.
16.9. In the hearing held on 19.10.2022, a detailed order
was passed by this Court. First part of the order dated
19.10.2022 dealt with constitution of the State Welfare
Board (briefly, ‘the Board’) for transgender persons in the
State of Telangana. It was held as follows:
Today, learned Advocate General submits that a
report has been submitted by Special Secretary to the
Government of Telangana, WCDA&SC Department. It
is stated that as per Rule 10(1) of the Transgender
Persons (Protection of Rights) Rules, 2020 (briefly ‘the
Rules’ hereinafter), Government of Telangana has
issued G.O.Ms.No.21 dated 19.08.2022 of the
Department for Women, Children, Disabled and Senior
Citizens, Government of Telangana, constituting a
State Welfare Board (briefly ‘the Board’ hereinafter) for
transgender persons in the State of Telangana with the
following members:
1. Hon’ble Minister for Disabled Welfare and Senior
Citizens Department
Chairperson,
Ex-officio
2. Spl.C.S./Prl.Scy/Secy to Government, Departments
of
1. Women, Children, Disabled & Senior Citizens
2. School Education Department
3. Medical & Health Department
27
4. Home Department
5. B.C.Welfare Department
6. Scheduled Castes Development Department.
7. Tribal Welfare Department
8. Minorities Welfare Department
9. Panchayat Raj & Rural Development Department
Ex-officio
Members
3. (2) NGOs working for transgender (as nominated by
the Government)
(1) ANVESHI (Research Centre for Women’s Studies)
(2) MSI (Montford Social Institute)
Members
4. Transgender (6) Members
1. Navadeep Pannala (Tashi Choedup)
2. Meera Sanghamitra
3. Rachana Mudraboyina
4. Kiran Raj Gollapalli
5. Vyjayanti Vasanta Mogli
6. Laila Oruganti
Members
5. Director, Welfare of Disabled and Senior Citizens
Department
Member
Secretary
It is stated that the Board had its first meeting
on 28.09.2022 whereafter, an action plan has been
chalked out which was forwarded to the Government by
the Director, Welfare of Disabled and Senior Citizens
Department on 29.09.2022.
Government of Telangana has approved the
action plan on 17.10.2022 and has also earmarked
Rs.200 lakhs as additional funds for implementation of
the action plan. However, nothing has been stated
regarding extension of the benefits conferred by
G.O.Ms.No.17, dated 05.11.2014 to the members of
transgender community.
16.10. Thereafter, this Court referred to the counter
affidavit filed by the State of Telangana in the Panchayat
Raj and Rural Development Department on 14.10.2022,
wherein it was stated that benefits of the Aasara Pension
28
Scheme contained in G.O.Ms.No.17 dated 05.11.2014 are
being extended to the following categories of persons:
1. Old Age Pensions
2. Widow Pensions
3. Disabled Pensions
4. Weavers Pensions
5. Toddy Tappers Pensions
6. Filaria Pensions
7. HIV Pensions
8. Financial Assistance to Beedi Workers
9. Financial Assistance to Single Women
10. Dialysis Patients.
16.11. It was submitted before the Court by the learned
Advocate General that a transgender person belonging to
any of the above ten categories would be entitled to
benefits under the Aasara Pension Scheme. This Court
referred to the decision of the Supreme Court in NALSA
(supra) and to the Transgender Persons (Protection of
Rights) Act, 2019 as well as to the Transgender Persons
(Protection of Rights) Rules, 2020 and thereafter held as
follows:
It is in the above backdrop that we are
examining the entitlement of the transgender
community including extension of the benefits under
the Aasara scheme. Members of the transgender
community are not seeking benefits as charity. It is
29
their constitutional right under Articles 14 and 21 of
the Constitution of India as upheld by the Supreme
Court in its decision in National Legal Services
Authority v. Union of India (supra).
On the next date, learned Advocate General shall
apprise the Court as to what steps have been taken by
the State of Telangana to comply with the directions of
the Supreme Court in National Legal Services
Authority v. Union of India (supra) and also in terms
of Rule 10(2) of the Rules.
Learned Advocate General shall also inform the
Court as to how the State proposes to reach out to the
members of the transgender community inasmuch as
because of social stigma and various other reasons,
there may be difficulty for members belonging to the
transgender community to come forward for
registration with the said authorities seeking benefit.
Learned Advocate General shall further apprise
the Court about any decision taken by the State for
extension of the benefit conferred by G.O.Ms.No.17
dated 05.11.2014 to members of the transgender
community as a separate class.
16.12. Thus, this Court observed that entitlement of the
transgender community to various benefits including the
benefits under the Aasara Scheme should not be seen as
charity but emanating from their constitutional rights
under Articles 14 and 21 of the Constitution of India as
30
held by the Supreme Court in NALSA (supra). This Court
directed learned Advocate General to apprise the Court as
to what steps State of Telangana has taken to comply with
the directions of the Supreme Court in NALSA (supra) and
also in terms of Rule 10(2) of the Transgender Persons
(Protection of Rights) Rules, 2019 as per which the
appropriate government is under a mandate to review all
existing educational, social security, health schemes,
welfare measures, vocational training and self-
employment schemes to include transgender persons in
order to protect their rights and interests and to facilitate
their access to such schemes and welfare measures.
Learned Advocate General was also directed to apprise the
Court as to how the State proposed to reach out to the
members of the transgender community in as much as
because of social stigma and various other reasons, there
may be difficulty for members belonging to the
transgender community to come forward for registration
with the concerned authorities seeking various benefits.
Learned Advocate General was also directed to apprise the
31
Court about any decision taken by the State for extension
of the benefits confirmed by G.O.Ms.No.17 dated
05.11.2014 to members of the transgender community as
a separate class.
16.13. It was, thereafter that the matter was heard at
length in which Mr. Andapalli Sanjeev Kumar, learned
Special Government Pleader submitted that State has not
taken any decision to include the transgender community
as a class for availing the benefit of Aasara Pension
Scheme in terms of G.O.Ms.No.17 dated 05.11.2014.
17. At this stage, we may briefly advert to the reports
and affidavits filed by various authorities from time to
time in W.P. (PIL) No.74 of 2020.
18. Member Secretary of Telangana State Legal Services
Authority had submitted a co nsolidated report dated
10.07.2020 after compiling the reports received from
District Legal Services Authorities. In his report, Member
Secretary has stated that the common problem of
transgender persons in the State of Telangana is that their
32
family members have necked them out from their houses
or because of societal pressure or humiliation, thereby
they themselves have left the family. As a result, most
transgenders have become shelterless. Compounding the
problem is the disinclination of landlords to rent out
premises to transgenders. In the circumstances, there is a
dire necessity to have shelter homes for transgenders
exclusively. However, the Government has no special
schemes or programmes in this regard. Representations
submitted by persons belonging to the transgender
community for allotting them single bedroom or double
bedroom houses have also not been considered.
18.1. Member Secretary has pointed out that most
transgenders have no fixed source of income. Most
employers are reluctant to provide any employment to
transgenders irrespective of whether it is a private sector
or the public sector. Government is also not providing any
financial assistance to enable the transgenders to have
their own start ups. In this regard, the role played by the
banks has also been found to be wanting. In such
33
circumstances, some transgenders have resorted to either
begging or by acting as sex workers to earn some money
per day. However, there are some NGOs in the State who
have reached out to the transgender community.
Transgenders complain that they have no ration cards or
voter identification cards in their names. One of the
common grievances of the transgenders is regarding grant
of ration cards, voter identification cards etc. by
recognizing them as transgenders. Though some of them
are graduates and postgraduates, they are unable to get
employment.
18.2. Substantial number of transgenders are engaged as
sex workers as a result some of them have been infected
with HIV or other sexually transmitted diseases. Access to
health is a big issue for them. Many hospitals refuse to
give admission to transgenders because the data format
does not provide for a special column for transgenders.
18.3. Even in public toilets, transgenders are not allowed
entry either into toilets meant for men or into toilets
34
meant for women. Therefore, they require separate toilets
earmarked for transgenders. They have stated that they
have been humiliated and facing insults on a daily basis.
As per the report, the number of transgenders could be
identified at 12,233.
19. In his report submitted by the Special Secretary to
the Government of Telangana, Women, Children, Disabled
and Senior Citizens Department dated 18.10.2022, it is
stated that Transgender Persons (Protection of Rights) Act,
2019 and the Transgender Persons (Protection of Rights)
Rules, 2020 are in vogue for protection of the rights of
transgender persons and their welfare. As per Rule 10(1)
of the Transgender Persons (Protection of Rights) Rules,
2020, Government of Telangana vide G.O.Ms.No.21 dated
19.08.2022 has constituted a State Welfare Board for
transgender persons in the State of Telangana (already
referred to as ‘the Board’ hereinabove) with the following
members:
1. Hon’ble Minister for Disabled Welfare and Senior
Citizens Department
Chairperson,
Ex-officio
2. Spl.C.S./Prl.Scy/Secy to Government.,
Departments of
35
1. Women, Children, Disabled & Senior Citizens
2. School Education Department
3. Medical & Health department
4. Home Department
5. B.C.Welfare Department
6. Scheduled Castes Development Department.
7. Tribal Welfare Department
8. Minorities Welfare Department
9. Panchayat Raj & Rural Development Department
Ex-officio
Members
3. (2) NGOs working for transgender (as nominated by
the Government)
(1) ANVESHI (Research Centre for Women’s Studies)
(2) MSI (Montford Social Institute)
Members
4. Transgender (6) Members
7. Navadeep Pannala (Tashi Choedup)
8. Meera Sanghamitra
9. Rachana Mudraboyina
10. Kiran Raj Gollapalli
11. Vyjayanti Vasanta Mogli
12. Laila Oruganti
Members
5. Director, Welfare of Disabled and Senior Citizens
Department
Member
Secretary
19.1. It is stated that State Welfare Board had convened
its first meeting on 28.09.2022 wherein an action plan
was chalked out which was thereafter forwarded to the
Government on 29.09.2022. Government of Telangana in
the Women, Children, Disabl ed and Senior Citizens
Department approved the action plan on 17.10.2022 and
also provided Rs.200 lakh s as additional funds in
relaxation of treasury control for protection and welfare of
transgender persons as per the action plan. A training
programme was conducted for making jute products to
benefit persons belonging to the transgender community.
Government of Telangana is actively working towards
36
welfare of transgender persons by launching various
measures including skill development training to promote
entrepreneurship and employability so that they can lead
a dignified life.
19.2. As per G.O.Ms.No.21 dated 19.08.2022, the function
of the State Welfare Board for transgender persons is to
advise the State Governmen t on the formulation of
policies, programmes, legislation and projects with respect
to transgender persons; to monitor and evaluate the
impact of policies and programmes designed for achieving
equality and full participation of transgender persons; to
review and coordinate the activities of all the departments
of the Government and other Governmental and non-
Governmental organizations which are dealing with
matters relating to transgender persons etc. It further
provided that tenure of the State Welfare Board would be
for a period of two years but it would meet at least once in
six months to advise the State Government on effective
implementation of the Transgender Persons (Protection of
37
Rights) Act, 2019 and to perform such other functions in
relation to transgenders.
20. We may also have a brief look at the action plan
approved by the Government on 17.10.2022 for
implementation of various welfare activities for
transgender persons. The action plan provides for
publicity of the Transgender Persons (Protection of Rights)
Act, 2019 and to carry out awareness campaigns and
sensitization programmes. The action plan also provides
for skill development training and economic rehabilitation
scheme. There is also a provision to set up a help desk for
transgender persons in the Directorate of Welfare of
Disabled and Senior Citizens. It has been proposed to
have a corpus fund and for this, an amount of
Rs.53,05,360-00 has been earmarked. However, it is seen
that to be eligible for undertaking such skill development
training or economic rehabilitation, certain eligibility
criteria have been fixed, such as, having an identity card
issued by the concerned District Collector or a certificate
issued by a competent authority; age proof certificate (age
38
between 21 to 55 years); Aadhaar card; educational
qualification etc. In fact, for availing the benefit of
economic rehabilitation scheme, a transgender person is
also required to furnish recent income certificate issued by
the Tahsildar concerned who has less than Rs.2 lakhs for
urban and Rs.1.5 lakh for rural areas. Action plan also
provides for establishment of homes for transgender
persons.
20.1. It goes without saying that meeting such eligibility
criteria by a transgender person is almost next to
impossible.
21. Secretary to the Government of Telangana, Medical
and Family Welfare Department furnished a report dated
29.11.2022 as to providing health care facilities to
transgender persons. As per the report, Government of
Telangana issued the following orders on 16.11.2022:
(i) Telangana State AIDS Control Society
shall set up separate Human Immunodeficiency
Virus Sero-Surveillance centres to conduct sero-
surveillance for such persons in accordance with the
39
guidelines issued by the National AIDS Control
Organisation.
(ii) Osmania General Hospital, Hyderabad is
hereby designated as the nodal health facility for sex
reassignment surgery and hormonal therapy.
(iii) Osmania General Hospital, Hyderabad
shall provide counselling before and after sex
reassignment surgery and also counselling for
hormonal therapy.
(iv) Director of Medical Education shall bring
out a Health Manual related to sex reassignment
surgery in accordance with the ‘World Professional
Association for Transgender Health’ guidelines.
(v) Director of Medical Education,
Commissioner, Telangana Vaidya Vidhana Parishad
and Director of Public Health shall ensure that
transgender persons are facilitated in the matter of
access in hospitals and other healthcare institutions.
21.1. In accordance with Rule 11(5) of the Transgender
Persons (Protection of Rights) Rules, 2020, Telangana
Police under the supervision of the Director General of
Police has established a Transgender Protection Cell called
“Pride Place” at the State level in the Women Safety Wing
of Telangana Police. The Protection Cell works directly
under the leadership of Additional Director General of
40
Police, Women Safety Wing, Telangana. It is stated that
the following steps are being taken through the Pride Cell:
- Building database of Trans people age wise,
occupation, economic status wise;
- Trainings and sensitisation programmes
planned from time to time for all the police
officers and other stakeholders;
- Awareness campaign taken up by the cell in
collaboration with other stakeholders and
Trans communities regularly;
- Involve the stakeholders like i.e., NGOs, Civil
Society and students who will come forward to
work on the same issue;
- Help in enrolment of transgender in National
Transgender Portal for ID cards
https://transgender.dosje.gov.in/Applicant/
Login/Index
- Conduct counselling to sex workers and
beggars;
- Conduct awareness for job for a dignified life
style;
- Plan to train them to improve their skills
through skilling programme;
- Any personal problem to transgender will be
resolved at desk.
21.2. We further find that as per letter dated 25.11.2022
of the Director and State Commissioner, Welfare of
Disabled and Senior Citizens addressed to the Special
41
Secretary to the Government of Telangana, Department for
Women, Children, Disabled and Senior Citizens, public
awareness steps are being taken to ensure identification of
transgender persons from th e village level. In this
connection, all the District Collectors have been directed
to conduct awareness campai gns for identification of
transgender persons and to expedite the process of issuing
transgender persons survival and identification cards. In
this process, steps have been taken to tabulate real time
data as to the number of transgender persons identified in
the districts, number of applications received, number of
certificates issued etc.
22. Elaborate submissions have been made by learned
counsel for the parties highlighting the plight of persons
belonging to the transgender community and the need for
inclusivity on the basis of constitutional principles.
Submissions made have been duly considered.
23. In NALSA (supra), Supreme Court was examining the
grievance of the members of the transgender community
42
seeking a legal declaration of their gender identity than
the one assigned to them i.e. male or female at the time of
birth. Ventilating such grievances, National Legal Services
Authority moved the Supreme Court contending that non-
recognition of the identity of persons belonging to the
transgender community violates Articles 14 and 21 of the
Constitution. Hijras and eunuchs falling within the
transgender community claimed legal status as a third
gender with all legal and constitutional protection. In the
said judgment, Supreme Court observed that transgender
is generally described as an umbrella term for persons
whose gender identity/gender expression or behaviour do
not conform to their biological sex. Transgender may also
take in persons who do not identify with their sex
assigned at birth, which include hijras/eunuchs. Hijras
are not men by virtue of anatomical appearance and
psychologically, they are also not women; though they are
like women they have no female reproductive organ and
no menstruation. Since hijras do not have reproductive
capacities as either men or women, they are neither men
43
nor women and claim to be third gender. Among hijras,
there are emasculated men, non-emasculated men and
inter-sexed persons i.e. hermaphrodites. Transgender also
includes persons who intend to undergo Sex
Reassignment Surgery (SRS) or have undergone Sex
Reassignment Surgery to align their biological sex with
their gender identity in order to become male or female.
They are generally calle d transsexual persons.
Resultantly, the term ‘transgender’ in contemporary usage
has become an umbrella term that is used to describe a
wide range of identities and experiences including but not
limited to pre-operative, post-operative and non-operative
transsexual people who strongly identify with the gender
opposite to their biological sex: male and female.
23.1. After tracing the history of transgenders in the world
and in India, Supreme Court acknowledged that
transgender people, as a whole, face multiple forms of
oppression in this country. Discrimination is writ large
and pronounced, especially in the field of healthcare,
employment, education, not to speak of social exclusion.
44
Supreme Court referred to the report submitted by United
Nations Development Programme – India, 2010 which
highlighted the extreme necessity of taking emergent steps
to improve the sexual and mental health of transgenders
and also to address the issue of social exclusion. It was
noted that social exclusion and discrimination on the
ground of gender stating that one does not conform to the
binary gender i.e. male or female, strongly prevail in India.
Supreme Court observed that many of them experience
violence and discrimination because of their sexual
orientation or gender identity.
23.2. Supreme Court agreed with the petitioners that
despite constitutional guarantee of equality, hijras/
transgender persons have been facing extreme
discrimination in all spheres of the society. Non-
recognition of the identity of hijras/transgender persons
denies them equal protection of law, thereby leaving them
extremely vulnerable to harassment, violence and sexual
assault in public spaces, at home and in jail. Non-
recognition of identity of hijras/transgender persons
45
results in them facing extreme discrimination in all
spheres of the society, es pecially in the field of
employment, education, healthcare etc. They face huge
discrimination in access to public spaces like restaurants,
cinemas, shops, malls etc. Further, access to public toilets
is also a serious problem which they face quite often.
Since there are no separate toilet facilities for
hijras/transgender persons they have to use male toilets
where they are prone to sexual assault or harassment.
Supreme Court concluded that discrimination on the
ground of sexual orientation or gender identity impairs
equality before law and equal protection of law and
violates Article 14 of the Constitution of India.
23.3. Adverting to Articles 15 and 16 of the Constitution,
Supreme Court observed that both the articles prohibit
discrimination against any citizen on certain enumerated
grounds including on the ground of sex. In fact, both the
articles prohibit all forms of gender bias and gender based
discrimination. After a careful analysis, Supreme Court
opined that the expression ‘sex’ used in Articles 15 and 16
46
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. Supreme Court noted that
transgenders have been systematically denied the rights
under Article 15(2) i.e. not to be subjected to any
disability, liability, restriction or condition in regard to
access to public places. Transgenders have also not been
afforded special provisions envisaged under Article 15(4)
for the advancement of the socially and educationally
backward classes. State is bound to take some affirmative
action for their advancement so that injustice done to
them for centuries could be remedied. Supreme Court has
held that transgenders have also been denied rights under
Article 16(2) and discriminated against in respect of
employment under the State on the ground of sex. They
are 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.
47
23.4. Thus, Supreme Court held that Articles 15(2) and (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 transgenders
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.
23.5. Elaborating further, Supreme Court observed that
right to dignity which is a facet of Article 21 forms an
essential part of our constitutional culture. Recognition of
one’s gender identity lies at the heart of the fundamental
right to dignity. Gender 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 guaranteed under the Constitution.
Determination of gender to which a person belongs is to
be decided by the person concerned. Thus, gender identity
is integral to the dignity of an individual and is at the core
of personal autonomy which is traceable to Article 21.
Thus, hijras and eunuchs have to be considered as third
48
gender over and above the binary genders under our
Constitution and the laws. It was, therefore, concluded
that discrimination on the basis of sexual orientation or
gender identity includes any discrimination, exclusion,
restriction or preference which has the effect of nullifying
or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution.
23.6. In his concurring judgment, Dr A.K.Sikri, J posed
the question as to whether transgenders who are neither
males nor females have a right to be identified or
categorised as third gender? He observed that indubitably,
the issue of choice of gender identity has all the trappings
of human rights. The issue is not limited to the exercise of
choice of gender/sex. Many rights which flow from this
choice also come into play, inasmuch as not giving them
the status of a third gender results in depriving the
community of transgenders of many of their valuable
rights and privileges which other persons enjoy as citizens
of this country. There is also deprivation of social and
cultural participation which results into eclipsing their
49
access to education and health services. Justice Sikri has
mentioned that though in the past transgenders in India
were treated with great respect, that is not the scenario
any longer. Attrition of their status was triggered with the
passing of the Criminal Tribes Act, 1871 which deemed
the entire community of h ijra persons as innately
criminals and adapted to the systematic commission of
non-bailable offences. There could not have been more
hardship caused to this community with the passing of
the aforesaid brutal legislation during the British regime
with the vicious and savage mindset. To add insult to
irreparable injury caused, Section 377 IPC was misused
and abused as there was a tendency in the British period
to arrest and prosecute transgender persons under
Section 377 merely on suspicion. Though there may have
been marginal improvement in the social and economic
condition of transgenders in India, it is still far from
satisfactory. The transgender community continues to face
different kinds of econom ic blockade and social
degradation. They still face multiple forms of oppression in
50
the country. Discrimination qua them is clearly
discernible in various fields including healthcare,
employment, education, social cohesion etc.
23.7. Justice Sikri asserted that transgenders are also
citizens of this country. They have equal right to achieve
their potential as human beings. For this purpose, not
only are they entitled to proper education, social
assimilation, access to public and other places and
employment opportunities as well. Therefore, it was
opined that by recognising transgenders as third gender,
they would be able to enjoy their human rights to which
they are largely deprived of for want of this recognition.
Thereafter, the learned Judge recorded some of the
common and reported problems of people belonging to the
transgender community, such as, harassment at home,
harassment by the police, rape, discrimination, abuse in
public places, lack of educational facilities, lack of medical
facilities, homelessness, unemployment, depression etc.
51
23.8. In the circumstances, Supreme Court declared and
directed as follows:
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 sero-surveillance
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.
52
135.6. The Centre and State Governments should
take proper measures to provide medical care to
transgenders 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
take steps to create public awareness so that
transgenders 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.
23.9. Thus, besides declaring transgenders as third gender
for the purpose of safeguarding their rights, Centre and
State Governments have been directed to grant legal
recognition of the gender identity of the transgenders such
as male, female or third gender. Centre and State
Governments have also been directed to take steps to treat
transgender persons as so cially and educationally
backward classes of citizens and extend all kinds of
53
reservation in cases of admission in educational
institutions and for public appointments.
24. Before we proceed to deal with the next important
judgment of the Supreme Court Puttaswamy (supra), it
would be useful to refer to some of the High Court
judgments dealing with various issues confronting
transgenders.
25. In Nangai v. the Superintendent of Police
3, a single
bench of the Madras High Court posed the question as to
whether it is a sin to be born as a transsexual? Would it
not be violative of Articles 14, 15, 16, 19 and 21 of the
Constitution of India to deny employment to a
transsexual? A learned Single Judge of the Madras High
Court raised the above questions in the peculiar facts of
that case. Petitioner therein identified herself as a female
but the police department where she was serving as a
police constable (women) terminated her from service by
labelling her as a transgender. As a matter of fact, the
medical board reported that petitioner was a transgender
3
2014 (3) CTC 497
54
by birth. When the petitioner challenged her termination
from service, stand taken by the police department was
that since the petitioner did not disclose that she was a
transgender, she was terminated from service as she was
not eligible for appointment as a woman police constable.
Learned Single Judge framed two questions for
consideration:
(1) Whether petitioner was a female and eligible
for appointment as a woman police constable?
(2) Whether termination of the petitioner from
service on the ground that she was a transgender
was sustainable?
25.1. It was in that context, learned Single Judge delved
into the concept of sex and gender as appearing in
different statutes. Learned Single Judge observed that the
term ‘sex’ operates within the classic binary biological
model in which human beings are divided into either male
or female. Transsexuals do not fit in with the said
classification in the domestic Indian laws as they do not fit
in within the binary classification of sex. They feel
completely neglected by the society and by the
government. Learned Single Judge observed that in the
55
Indian scenario, an individual for all practical purposes is
identified either as a male or as a female. Therefore, it was
wrong on the part of the State authority to discard the
description of gender by the petitioner on the basis of
medical report. Learned Single Judge also referred to the
decision of the Supreme Court in NALSA (supra) and
thereafter concluded that since Indian laws did not
recognise third gender and was confined to the binary
classification of male and female, in such a case an
individual who is born as a female but declared as a
transsexual by the medical community cannot be kept out
of the binary classification. Such medically declared
transsexuals are to be treated by the legal community only
by the sexual identity given to them at birth and
recognised by the society. If such medically declared
transsexuals are kept outside the purview of the female
sexual identity, then the State would not be in a position
to provide employment an d other opportunities to
transgenders by treating them as females or as males. In
such circumstances, Madras High Court held that
56
petitioner was a female in the legal parlance and thus
eligible for appointment as a woman police constable.
Consequently, the impugned order of termination from
service was found to be unsustainable and was
accordingly set aside.
25.2. Madras High Court however declared that petitioner
would have the liberty to choose a different sexual or
gender identity as a third gender in future based on
medical declaration if there is any law declaring them as
third gender.
26. A division bench of the Allahabad High Court in
Ashish Kumar Misra v. Union of India
4 examined an important
issue pertaining to availability of food security for
transgenders under the National Food Security Act, 2013.
In this connection, Allahabad High Court referred to
Section 13 of the said Act as well as to the decision of the
Supreme Court in NALSA (supra). Allahabad High Court
referred to the statutory form for submitting applications
under the aforesaid Act and noted that one of the items
4
AIR 2015 All 124
57
required disclosure of gender of the applicant. It was in
that context, Allahabad High Court observed that
reference to gender would be construed to mean either
female or male or other. The expression ‘other’ would
necessarily include a transgender. Object and purpose of
Section 13 was not to exclude transgender. The solitary
purpose underlying the enactment of Section 13 can be
furthered by incorporating a situation where a
transgender can be recognised as the head of an eligible
household. Allahabad High Court emphasised that the
right to live in dignity is traceable to Article 21 of the
Constitution. Incidental to the fundamental right to live in
dignity is the right to access all facilities for development
of the personality including education, employment
opportunities, access to public places etc.
27. A single bench of the Delhi High Court in Shivani
Bhat v. State of NCT of Delhi
5 noted that despite the decision
of the Supreme Court in NALSA (supra) the trauma, agony
and pain which members of the transgender community
5
2015 SCC OnLine Del 12514
58
have to undergo continues unabated. Observing that
transgenders enjoy basic human rights including
protection from violence and discrimination, Delhi High
Court held that transgenders also have the right to dignity
and self-determination. Gender identity and sexual
orientation are fundamenta l to the right of self-
determination and dignity. These freedoms lie at the heart
of personal autonomy and freedom of individuals. A
transgender’s sense or experience of gender is integral to
her core personality and sense of being.
28. In K.Prithika Yashini v. Chairman, Tamil Nadu Uniformed
Services Recruitment Board
6, a division bench of the Madras
High Court noted that in the recruitment process for
appointment of Sub Inspector in the police department,
benchmark was prescribed for such recruitment. The
difference in the benchmark required specification of
gender of the candidate as male or female. There was
absence of any column for third gender. It was in that
context, Madras High Court referred to the decision of the
6
2016 4 L.W. 594
59
Supreme Court in NALSA (supra) and observed that the
discrimination suffered by the transgenders would be
difficult for any of the other two genders to realise. Noting
that there was no other transgender as a candidate in the
selection for recruitment as Sub Inspector, the Court
observed that even if one person was recruited under the
said category, it would be the petitioner. Social impact of
such recruitment cannot be lost sight of. In the
circumstances, Madras High Court directed that petitioner
was entitled to be recruited to the post of Sub Inspector
and hoped that she would carry out her duties with
dedication and commitment to advance the cause of other
transgenders.
29. A division bench of the Uttarakhand High Court in
writ petition criminal No.1794 of 2018 ( Rano v. State of
Uttarakhand) decided on 28.09.2018, examined the
grievance of the petitioners who were transgenders. After
referring to the decision of the Supreme Court in NALSA
(supra), Uttarakhand High Court noted that the State
Government had not implemented the directions issued by
60
the Supreme Court. No reservation had been provided for
public employment as well as in educational institutions.
No proper measures have been provided for medical care
to transgenders. No social welfare schemes have been
framed for the betterment of the transgenders.
Uttarakhand High Court took note of the fact that State of
Odisha has framed a scheme for promotion of transgender
equality and justice and directed the Government of
Uttarakhand to frame social welfare schemes/programmes
for transgenders. State Government was directed to take
steps to provide habitable accessible appropriate houses
to the transgenders including the right to education.
30. We may now deal with th e seminal decision of the
nine-Judge Bench of the Supreme Court in Puttaswamy
(supra). The nine-Judge Bench was constituted to
determine whether privacy is a constitutionally protected
value. In the opening reference, Justice
Dr. D.Y.Chandrachud (as His Lordship then was) speaking
for the Bench observed that the issue reaches out to the
foundation of a constitutional culture based on the
61
protection of human rights and enables the Supreme
Court to revisit the basic principles on which the
Constitution has been founded and their consequences for
a way of life it seeks to protect. It has been observed that if
privacy is to be construed as a protected constitutional
value, it would redefine in significant ways our concepts of
liberty and the entitlements that flow out of its protection.
30.1. Supreme Court observed that privacy in its simplest
sense allows each human being to be left alone in a core
which is inviolable. Supreme Court examined the above
issue in the backdrop of two of its earlier decisions i.e.,
M.P.Sharma v. Satish Chandra
7 and Kharak Singh v. State of
Uttar Pradesh
8 and observed that the Indian Constitution
does not specifically protect the right to privacy. Therefore,
existence of a fundamental right to privacy was in doubt
in view of the aforesaid two decisions. Supreme Court
noted that the decision in M.P.Sharma (supra) and Kharak
Singh (supra) stood abrogated by the judgment in
7
AIR 1954 SC 300
8
AIR 1963 SC 1295
62
R.C.Cooper v. Union of India
9 and the subsequent statement
of doctrine in Maneka Gandhi v. Union of India
10. The right “to
be let alone” represents a manifestation of “an inviolate
personality”, a core of freedom and liberty from which the
human being had to be free from intrusion. The right “to
be let alone” is not so much an incident of property (in
view of advancing technology) as a reflection of the
inviolable nature of the human personality.
30.2. On the above basis, Supreme Court proceeded in its
analysis that privacy is a concomitant of the right of the
individual to exercise control over his or her personality. It
finds an origin in the notion that there are certain rights
which are natural to or inherent in a human being.
Natural rights are inalienable because they are
inseparable from the human personality. The human
element in life is impossible to conceive without the
existence of natural rights. Natural rights are not
bestowed by the State. They inhere in human beings
because they are human. Th ey exist equally in the
9
(1970) 1 SCC 248
10
(1978) 1 SCC 248
63
individual irrespective of class or strata, gender or
orientation.
30.3. Supreme Court, thereafter, made a comprehensive
analysis of all relevant judicial precedents indicating
evolution of the right to privacy in our constitutional
jurisprudence. The analysis indicates the manner in
which the debate on the existence of a constitutional right
to privacy has progressed. The content of the
constitutional right to privacy and its limitations have
proceeded on a case to case basis, each precedent seeking
to build upon and follow the previous formulations.
Thereafter, Supreme Court observed that these decisions
had to weave a jurisprudence of privacy as new challenges
emerged from a variety of sources: wiretapping, narco-
analysis, gender based identity, medical information,
informational autonomy and other manifestations of
privacy. The right to privacy has been traced in the
decisions which have been rendered over the last several
decades to the guarantee of life and personal liberty in
Article 21 and the freedoms set out in Article 19. In
64
addition, India’s commitment to a world order founded on
respect for human rights has been noticed along with the
specific articles of the Universal Declaration of Human
Rights (UDHR) and the International Covenant on Civil
and Personal Rights (ICCPR) which embodied the right to
privacy.
30.4. Thereafter, Supreme Court observed that our
constitutional jurisprudence has recognised the
inseparable relationship between protection of life and
liberty with dignity which as a constitutional value finds
adequate expression in the Preamble. The Preamble
contains the constitutional precepts to facilitate a humane
and compassionate society. The individual is the focal
point of the Constitution because it is in the realisation of
individual rights that the collective wellbeing of the
community is determined. Huma n dignity is an integral
part of the Constitution. Reflections of dignity are found in
the guarantee against arbitrariness (Article 14), the
freedoms (Article 19) and in the right to life and personal
liberty (Article 21).
65
30.5. Supreme Court referred to its decision in Jeeja Ghosh
v. Union of India
11 which observed that human dignity is a
constitutional value and a constitutional goal. Thereafter,
Supreme Court observed that life is precious in itself. But
life is worth living because of the freedoms which enable
each individual to live a life as it should be lived. The best
decisions on how life should be lived are entrusted to the
individual. The duty of the State is to safeguard the ability
to take decisions i.e., the autonomy of the individual, and
not to dictate those decisions. To live is to live with
dignity. Dignity is the core which unites the fundamental
rights because the fundamental rights seek to achieve for
each individual the dignity of existence. Privacy with its
attendant values assures dignity to the individual and it is
only when life can be enjoyed with dignity can liberty be of
true substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and liberty
is intended to achieve.
11
(2016) 7 SCC 761
66
30.6. It is in that context, Supreme Court repelled the
submission that to recognise the right to privacy would
require a constitutional amendment and cannot be a
matter of judicial interpretation. Supreme Court asserted
that right to privacy is an element of human dignity.
Sanctity of privacy lies in its functional relationship with
dignity. Privacy ensures that a human being can lead a life
of dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises
the autonomy of the individual and the right of every
person to make essential choices which affect the course
of life. In doing so, privacy recognises that living a life of
dignity is essential for a human being to fulfil the liberties
and freedoms which are th e cornerstone of the
Constitution. To recognise the value of privacy as a
constitutional entitlement is not to fashion a new
fundamental right by a process of amendment.
30.7. Supreme Court however noted that in the evolution
of the doctrine of right to privacy and dignity in India
which placed the dignity of the individual and the
67
freedoms and liberties at the forefront, there had been a
few discordant notes. One of them being ADM, Jabalpur v.
Shivakant Shukla
12 was particularly discussed whereafter,
the majority view that the remedy for enforcement of the
right to life or liberty would stand suspended when an
order is issued by the President under Article 359(1) of the
Constitution was found to be seriously flawed and
expressly overruled. The dissenting judgment rendered by
Justice H.R.Khanna that the suspension of the right to
move any court for the enforcement of the right under
Article 21 upon a proclamation of emergency would not
affect the enforcement of the basic right to life and liberty
has been expressly approved. Life and personal liberty are
inalienable to human exis tence. These rights are
primordial rights. They constitute rights under natural
law. The human element in th e life of an individual is
integrally founded on the sanctity of life. Dignity is
associated with liberty and freedom. Supreme Court
declared that the view taken by Justice Khanna was the
12
(1976) 2 SCC 521
68
correct view and accordingly overruled the decision in ADM
Jabalpur (supra).
30.8. Insofar the second decision i.e., Suresh Kumar Koushal
v. Naz Foundation
13 is concerned, we will discuss in detail
the same while analysing the Constitution Bench
Judgment of the supreme Court in Navtej Singh Johar v.
Union of India
14. Suffice it to say, Supreme Court in
Puttuswamy (supra) did not go into the correctness of the
view taken by it in Suresh Kumar Koushal (supra) as at that
point of time challenge to Section 377 of the Indian Penal
Code, 1860 (IPC) was pending consideration before the
Constitution Bench. Nonetheless Supreme Court observed
that sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of
sexual orientation is deeply offensive to the dignity and
self-worth of the individual. Equality demands that sexual
orientation of each individual in society must be protected
on an even platform. The right to privacy and the
protection of sexual orientation lie at the core of the
13
(2014) 1 SCC 1
14
(2018) 10 SCC 1
69
fundamental rights guaranteed by Articles 14, 15 and 21
of the Constitution. Supreme Court also elaborated that
sexual orientation is an essential component of identity.
Equal protection demands protection of the identity of
every individual without discrimination.
30.9. While repelling the submission that privacy is a
privilege for the few, Supreme Court has held that every
individual in society irrespective of social class or
economic status is entitled to the intimacy and autonomy
which privacy protects. Pursuit of happiness is founded
upon autonomy and dignity. Both are essential attributes
of privacy which makes no distinction between the birth
marks of individuals.
30.10. Thereafter, Supreme Court posed the question as
to what does privacy postulate? Answering this question,
Supreme Court held that privacy postulates reservation of
a private space for the individual, described as the right to
be let alone. The concept is founded on the autonomy of
the individual. The ability of an individual to make choices
70
lies at the core of the human personality. The notion of
privacy enables the individual to assert and control the
human element which is inseparable from the personality
of the individual. The inviolable nature of the human
personality is manifested in the ability to make decisions
on matters intimate to human life. Since the observations
of the Supreme Court are ex tremely relevant for our
present discourse, it is important to extract and restate
the same. Supreme Court held as follows:
R. Essential Nature of Privacy:
297. What, then, does privacy postulate?
Privacy postulates the reservation of a private space
for the individual, described as the right to be let
alone. The concept is founded on the autonomy of
the individual. The ability of an individual to make
choices lies at the core of the human personality. The
notion of privacy enables the individual to assert and
control the human element which is inseparable from
the personality of the individual. The inviolable
nature of the human personality is manifested in the
ability to make decisions on matters intimate to
human life. The autonomy of the individual is
associated over matters which can be kept private.
These are concerns over which there is a legitimate
expectation of privacy. The body and the mind are
inseparable elements of the human personality. The
71
integrity of the body and the sanctity of the mind can
exist on the foundation that each individual
possesses an inalienable ability and right to preserve
a private space in which the human personality can
develop. Without the ability to make choices, the
inviolability of the personality would be in doubt.
Recognising a zone of privacy is but an
acknowledgment that each individual must be
entitled to chart and pursue the course of
development of personality. Hence privacy is a
postulate of human dignity itself. Thoughts and
behavioural patterns which are intimate to an
individual are entitled to a zone of privacy where one
is free of social expectations. In that zone of privacy,
an individual is not judged by others. Privacy enables
each individual to take crucial decisions which find
expression in the human personality. It enables
individuals to preserve their beliefs, thoughts,
expressions, ideas, ideologies, preferences and
choices against societal demands of homogeneity.
Privacy is an intrinsic recognition of heterogeneity, of
the right of the individual to be different and to stand
against the tide of conformity in creating a zone of
solitude. Privacy protects the individual from the
searching glare of publicity in matters which are
personal to his or her life. Privacy attaches to the
person and not to the place where it is associated.
Privacy constitutes the foundation of all liberty
because it is in privacy that the individual can decide
how liberty is best exercised. Individual dignity and
privacy are inextricably linked in a pattern woven out
72
of a thread of diversity into the fabric of a plural
culture.
298. Privacy of the individual is an essential
aspect of dignity. Dignity has both an intrinsic and
instrumental value. As an intrinsic value, human
dignity is an entitlement or a constitutionally
protected interest in itself. In its instrumental facet,
dignity and freedom are inseparably intertwined,
each being a facilitative tool to achieve the other. The
ability of the individual to protect a zone of privacy
enables the realisation of the full value of life and
liberty. Liberty has a broader meaning of which
privacy is a subset. All liberties may not be exercised
in privacy. Yet others can be fulfilled only within a
private space. Privacy enables the individual to retain
the autonomy of the body and mind. The autonomy
of the individual is the ability to make decisions on
vital matters of concern to life. Privacy has not been
couched as an independent fundamental right. But
that does not detract from the constitutional
protection afforded to it, once the true nature of
privacy and its relationship with those fundamental
rights which are expressly protected is understood.
Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee
against arbitrary State action. It prevents the State
from discriminating between individuals. The
destruction by the State of a sanctified personal
space whether of the body or of the mind is violative
of the guarantee against arbitrary State action.
Privacy of the body entitles an individual to the
73
integrity of the physical aspects of personhood. The
intersection between one's mental integrity and
privacy entitles the individual to freedom of thought,
the freedom to believe in what is right, and the
freedom of self-determination. When these
guarantees intersect with gender, they create a
private space which protects all those elements
which are crucial to gender identity. The family,
marriage, procreation and sexual orientation are all
integral to the dignity of the individual. Above all, the
privacy of the individual recognises an inviolable
right to determine how freedom shall be exercised.
An individual may perceive that the best form of
expression is to remain silent. Silence postulates a
realm of privacy. An artist finds reflection of the soul
in a creative endeavour. A writer expresses the
outcome of a process of thought. A musician
contemplates upon notes which musically lead to
silence. The silence, which lies within, reflects on the
ability to choose how to convey thoughts and ideas or
interact with others. These are crucial aspects of
personhood. The freedoms under Article 19 can be
fulfilled where the individual is entitled to decide
upon his or her preferences. Read in conjunction
with Article 21, liberty enables the individual to have
a choice of preferences on various facets of life
including what and how one will eat, the way one will
dress, the faith one will espouse and a myriad other
matters on which autonomy and self-determination
require a choice to be made within the privacy of the
mind. The constitutional right to the freedom of
religion under Article 25 has implicit within it the
74
ability to choose a faith and the freedom to express
or not express those choices to the world. These are
some illustrations of the manner in which privacy
facilitates freedom and is intrinsic to the exercise of
liberty. The Constitution does not contain a separate
article telling us that privacy has been declared to be
a fundamental right. Nor have we tagged the
provisions of Part III with an alpha-suffixed right to
privacy: this is not an act of judicial redrafting.
Dignity cannot exist without privacy. Both reside
within the inalienable values of life, liberty and
freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of
the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights
and protects for the individual a zone of choice and
self-determination.
299. Privacy represents the core of the human
personality and recognises the ability of each
individual to make choices and to take decisions
governing matters intimate and personal. Yet, it is
necessary to acknowledge that individuals live in
communities and work in communities. Their
personalities affect and, in turn are shaped by their
social environment. The individual is not a hermit.
The lives of individuals are as much a social
phenomenon. In their interactions with others,
individuals are constantly engaged in behavioural
patterns and in relationships impacting on the rest of
society. Equally, the life of the individual is being
consistently shaped by cultural and social values
75
imbibed from living in the community. This state of
flux which represents a constant evolution of
individual personhood in the relationship with the
rest of society provides the rationale for reserving to
the individual a zone of repose. The lives which
individuals lead as members of society engender a
reasonable expectation of privacy. The notion of a
reasonable expectation of privacy has elements both
of a subjective and objective nature. Privacy at a
subjective level is a reflection of those areas where an
individual desires to be left alone. On an objective
plane, privacy is defined by those constitutional
values which shape the content of the protected zone
where the individual ought to be left alone. The
notion that there must exist a reasonable expectation
of privacy ensures that while on the one hand, the
individual has a protected zone of privacy, yet on the
other, the exercise of individual choices is subject to
the rights of others to lead orderly lives. For instance,
an individual who possesses a plot of land may
decide to build upon it subject to zoning regulations.
If the building bye-laws define the area upon which
construction can be raised or the height of the
boundary wall around the property, the right to
privacy of the individual is conditioned by regulations
designed to protect the interests of the community in
planned spaces. Hence while the individual is
entitled to a zone of privacy, its extent is based not
only on the subjective expectation of the individual
but on an objective principle which defines a
reasonable expectation.
76
30.11. Thus, Supreme Court has explained that privacy of
the individual is an essential aspect of dignity. The family,
marriage, procreation and sexual orientation are integral
to the dignity of the individual. Dignity cannot exist
without privacy. Both reside within the inalienable values
of life, liberty and freedom which the Constitution has
recognised. Privacy is the ultimate expression of the
sanctity of the individual. It is a constitutional value
which straddles across the spectrum of fundamental
rights and protects for the individual a zone of choice and
self-determination.
30.12. Thus, Supreme Court concluded that privacy is a
constitutionally protected right which emerges primarily
from the guarantee of life and personal liberty in Article 21
of the Constitution. Privacy is the constitutional core of
human dignity. Privacy includes at its core the
preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual
orientation. It also connotes a right to be left alone. It
safeguards individual autonomy and recognises the ability
77
of the individual to control vital aspects of his/her life.
However, Supreme Court recognised that privacy is not an
absolute right in the context of Article 21 but invasion of
privacy must be justified on the basis of law which
stipulates a procedure which is fair, just and reasonable.
Privacy has both positive and negative content. The
negative content restrains the State from committing an
intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the State to take
all necessary measures to protect the privacy of the
individual.
31. In Navtej Singh Johar (supra), Constitution Bench of
the Supreme Court was consid ering the constitutional
dimension of the contention that right to sexuality, right
to sexual autonomy and right to choice of a sexual partner
are part of the right to life guaranteed under Article 21 of
the Constitution; the further contention was to declare
Section 377 IPC as unconstitutional. It may be mentioned
that two-Judge Bench of the Supreme Court in Suresh
Kumar Koushal (supra) had overturned the decision
78
rendered by the Delhi High Court in Naz Foundation V.
Government (NCT of Delhi)
15. The correctness of the said
decision was also an issue in Navtej Singh Johar (supra).
31.1. Chief Justice Deepak Misra in the leading judgment
adverted to the Delhi Hi gh Court decision in Naz
Foundation (supra). Delhi High Court had taken the view
that Article 15 of the Constitution prohibits discrimination
on several enumerated grounds including sex. Delhi High
Court preferred an expansive interpretation of the word
‘sex’ so as to include prohibition of discrimination on the
ground of sexual orientation and that sex discrimination
cannot be read as applying to gender simpliciter.
According to the Delhi High Court, Indian Constitution
reflects the value of inclusiveness which is deeply
ingrained in the Indian society and those who are
perceived by the majority as deviants or different are not
to be, on that score, excluded or ostracised. Where a
society displays inclusiveness and understanding, LGBT
(Lesbian, Gay, Bisexual and Transgender) persons can be
15
2009 SCC OnLine Del 1762
79
assured of a life of dignity and non-discrimination. Delhi
High Court opined that the Constitution does not permit
any statutory criminal law to be held captive of the
popular misconception of who the LGBTs are. Social
morality has to succumb or give way to the higher concept
of constitutional morality. On the above reasons, Delhi
High Court declared Section 377 IPC as violative of
Articles 14, 15 and 21 of the Constitution insofar as it
criminalises consensual sexual acts of adults in private.
31.2. The Delhi High Court judgment in Naz Foundation
(supra) was challenged in Suresh Kumar Koushal (supra).
Supreme Court opined that acts which fall within the
ambit of Section 377 IPC can only be determined with
reference to the act itself and to the circumstances in
which it is executed. Section 377 IPC would apply
irrespective of age and consent; it does not criminalise a
particular people or identity or orientation but only
identifies certain acts which, when committed, would
constitute an offence. Such a prohibition regulates sexual
conduct regardless of gender identity and orientation.
80
According to the Bench, those who indulge in carnal
intercourse in the ordinary course and those who indulge
in carnal intercourse against the order of nature
constitute different classes. People falling in the latter
category cannot claim that Section 377 IPC suffers from
the vice of arbitrariness and irrational classification. While
holding such a view it was observed that only a minuscule
fraction of the country’s population constitutes LGBT and
in last more than 150 years, less than 200 persons have
been prosecuted under Section 377 IPC and therefore
cannot be made a sound basis for declaring Section 377
IPC ultra vires the provisions of Articles 14, 15 and 21 of
the Constitution. The submission advanced that Section
377 IPC had become a pernicio us tool for perpetrating
harassment, blackmail and torture on those belonging to
LGBT community was repelled by stating that such
treatment is neither mand ated by the Section nor
condoned by it. Mere fact that the section is misused by
police authorities and others cannot be a reflection on the
vires of the Section.
81
31.3. In the context of the above, Supreme Court in Navtej
Singh Johar (supra) observed that while testing the
constitutional validity of Section 377 IPC, due regard must
be given to the elevated right to privacy as has been
proclaimed in Puttaswamy (supra). Within the compartment
of privacy, individual autonomy has a significant space.
Autonomy is individualistic. It is expressive of self-
determination and such se lf-determination includes
sexual orientation and declaration of sexual identity. It is
an inalienable part of an individual’s identity. Supreme
Court observed as under:
161. While testing the constitutional validity of
Section 377 IPC, due regard must be given to the
elevated right to privacy as has been recently
proclaimed in Puttaswamy [K.S. Puttaswamy v. Union
of India, (2017) 10 SCC 1]. We shall not delve in
detail upon the concept of the right to privacy as the
same has been delineated at length
in Puttaswamy [K.S. Puttaswamy v. Union of India,
(2017) 10 SCC 1]. In the case at hand, our focus is
limited to dealing with the right to privacy vis-à-vis
Section 377 IPC and other facets such as right to
choice as part of the freedom of expression and
sexual orientation. That apart, within the
compartment of privacy, individual autonomy has a
82
significant space. Autonomy is individualistic. It is
expressive of self-determination and such self-
determination includes sexual orientation and
declaration of sexual identity. Such an orientation or
choice that reflects an individual's autonomy is
innate to him/her. It is an inalienable part of his/her
identity. The said identity under the constitutional
scheme does not accept any interference as long as
its expression is not against decency or morality. And
the morality that is conceived of under the
Constitution is constitutional morality. Under the
autonomy principle, the individual has sovereignty
over his/her body. He/she can surrender his/her
autonomy wilfully to another individual and their
intimacy in privacy is a matter of their choice. Such
concept of identity is not only sacred but is also in
recognition of the quintessential facet of humanity in
a person's nature. The autonomy establishes identity
and the said identity, in the ultimate eventuate,
becomes a part of dignity in an individual. This
dignity is special to the man/woman who has a right
to enjoy his/her life as per the constitutional norms
and should not be allowed to wither and perish like a
mushroom. It is a directional shift from conceptual
macrocosm to cognizable microcosm. When such
culture grows, there is an affirmative move towards a
more inclusive and egalitarian society. Non-
acceptance of the same would tantamount to denial
of human rights to people and one cannot be
oblivious of the saying of Nelson Mandela — “to deny
people their human rights is to challenge their very
humanity”.
83
31.4. It was observed that after the nine-Judge Bench
decision in Puttaswamy (supra), the challenge to the vires
of Section 377 IPC has become stronger than ever. In
Puttaswamy (supra), it has been held that sexual
orientation is also a facet of a person’s privacy and that
the right to privacy is a fundamental right under the
Constitution of India. Supreme Court opined that the
observations made in Suresh Kumar Koushal (supra) that
LGBT including 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 abridged by the existence
of Section 377 IPC in its present form is low does not
impose a limitation upon the Supreme Court from
protecting the fundamental rights of those who are
affected by Section 377 IPC. After due elaboration,
Supreme Court declared that whatever be the percentage
of LGBTs including the tr ansgenders, Court is not
84
concerned with the number of persons belonging to the
LGBT community. What ma tters 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 the questions is in the affirmative, then
the constitutional Court must not display an iota of doubt
and must not hesitate in striking down such provision of
law on account of it being violative of the fundamental
rights of certain citizens, howsoever minuscule their
percentage may be.
31.5. The entirety of the discussion as to vires of Section
377 IPC may not be relevant for the present purpose.
Suffice it so say that in Navtej Singh Johar (supra), Supreme
Court observed that Section 377 IPC does not criminalise
carnal intercourse between consenting heterosexuals. If it
is so, then it should not be labelled and designated as
unnatural offence under Section 377 IPC. Adverting to the
Criminal Law (Amendment) Act, 2013 and the amendment
introduced in Section 375 IPC, Supreme Court held that if
85
any proclivity amongst the heterosexual population
towards consensual carnal intercourse has been allowed,
such kind of proclivity amongst any two persons including
LGBT community cannot be treated as untenable so long
as it is consensual and it is confined within their private
and intimate spaces. Thereafter, Supreme Court declared
as follows:
238. At the very least, it can be said that
criminalisation of consensual carnal intercourse, be
it amongst homosexuals, heterosexuals, bisexuals or
transgenders, hardly serves any legitimate public
purpose or interest. Per contra, we are inclined to
believe that if Section 377 remains in its present
form in the statute book, it will allow the harassment
and exploitation of the LGBT community to prevail.
We must make it clear that freedom of choice cannot
be scuttled or abridged on the threat of criminal
prosecution and made paraplegic on the mercurial
stance of majoritarian perception.
31.6. After holding so, Supreme Court declared that
Section 377 IPC in its present form abridges both human
dignity as well as the fundamental right to privacy. As
sexual orientation is an essential and innate facet of
privacy, the right to privacy takes within its sweep the
86
right of every individual including that of the LGBT
persons to express their choice in terms of their sexual
inclination without the fear of persecution or criminal
prosecution.
31.7. Supreme Court observed that LGBT community
possesses the same human, fundamental and
constitutional rights as other citizens do since these rights
inhere in every individual as natural and human rights.
Adverting particularly to transgenders, Supreme Court
observed that bigoted and homophobic attitudes
dehumanise the transgenders by denying them their
dignity, personhood and above all, their basic human
rights. Identity and sexual orientation cannot be silenced
by oppression. The very existence of Section 377 IPC
criminalising transgenders cast a great stigma on an
already oppressed and discriminated class of people. This
stigma, oppression and prejudice has to be eradicated and
the transgenders have to progress from their narrow
claustrophobic spaces of mere survival in hiding with their
isolation and fears to enjoying the richness of living out of
87
the shadows with full realisation of their potential and
equal opportunities in all walks of life. This is what the
Supreme Court observed:
264. The very existence of Section 377 IPC
criminalising transgenders casts a great stigma on an
already oppressed and discriminated class of people.
This stigma, oppression and prejudice has to be
eradicated and the transgenders have to progress
from their narrow claustrophobic spaces of mere
survival in hiding with their isolation and fears to
enjoying the richness of living out of the shadows
with full realisation of their potential and equal
opportunities in all walks of life. The ideals and
objectives enshrined in our benevolent Constitution
can be achieved only when each and every individual
is empowered and enabled to participate in the social
mainstream and in the journey towards achieving
equality in all spheres, equality of opportunities in all
walks of life, equal freedoms and rights and, above
all, equitable justice. This can be achieved only by
inclusion of all and exclusion of none from the
mainstream.
31.8. Finally, Supreme Court concluded by overruling its
decision in Suresh Kumar Koushal (supra) and declaring that
Section 377 IPC so far as it criminalises any sexual
relationship between two consenting adults of the same
sex is unconstitutional.
88
31.9. In his concurring judgment, Justice Dr.
D.Y.Chandrachud (as His Lord ship then was) observed
that sexuality is a natural and precious aspect of life, an
essential and fundamental part of humanity. Sexual rights
are entitlements related to sexuality and emanate from the
rights to freedom, equality, privacy, autonomy and dignity
of all people. Individuals belonging to sexual and gender
minorities experience discrimination, stigmatisation and
in some cases denial of care on account of their sexual
orientation and gender identity. Under our constitutional
scheme, no minority group must suffer deprivation of a
constitutional right because they do not adhere to the
majoritarian way of life. LGBT people including
transgender persons are excluded from access to
healthcare due to the societal stigma attached to sexual
identity. Being particularly vulnerable to contraction of
HIV, this deprivation can only be described as cruel and
debilitating. The indignity suffered by the sexual minority
cannot, by any means, stand the test of constitutional
validity. Thereafter, it has been summed up as follows:
89
606. Constitutional morality will impact upon any
law which deprives the LGBT individuals of their
entitlement to a full and equal citizenship. After the
Constitution came into force, no law can be divorced
from constitutional morality. Society cannot dictate
the expression of sexuality between consenting
adults. That is a private affair. Constitutional
morality will supersede any culture or tradition.
607. The interpretation of a right in a matter of
decriminalisation and beyond must be determined by
the norms of the Constitution.
608. LGBT individuals living under the threats of
conformity grounded in cultural morality have been
denied a basic human existence. They have been
stereotyped and prejudiced. Constitutional morality
requires this Court not to turn a blind eye to their
right to an equal participation of citizenship and an
equal enjoyment of living. Constitutional morality
requires that this Court must act as a counter-
majoritarian institution which discharges the
responsibility of protecting constitutionally
entrenched rights, regardless of what the majority
may believe. [Arvind Narrain, “A New Language of
Morality : From the Trial of Nowshirwan to the
Judgment in Naz Foundation”, The Indian Journal of
Constitutional Law, Vol. 4 (2010).] Constitutional
morality must turn into a habit of citizens. By
respecting the dignity of LGBT individuals, this Court
is only fulfilling the foundational promises of our
Constitution.
90
31.10. Thus, it has been held that constitutional morality
will impact upon any law wh ich deprives the LGBT
individuals of their entitlement to a full and equal
citizenship. LGBT individuals living under the threats of
conformity grounded in cultural morality have been
denied a basic human exis tence. They have been
stereotyped and prejudiced. Constitutional morality does
not permit such discrimination and must supersede
cultural morality. In his concurring judgment, Justice Dr.
D.Y.Chandrachud (as His Lordship then was) held and
declared as follows:
618.1. Section 377 of the Penal Code, insofar as it
criminalises consensual sexual conduct between
adults of the same sex, is unconstitutional;
618.2. Members of the LGBT community are
entitled, as all other citizens, to the full range of
constitutional rights including the liberties protected
by the Constitution;
618.3. The choice of whom to partner, the ability
to find fulfilment in sexual intimacies and the right
not to be subjected to discriminatory behaviour are
intrinsic to the constitutional protection of sexual
orientation;
91
618.4. Members of the LGBT community are
entitled to the benefit of an equal citizenship, without
discrimination, and to the equal protection of law;
and
618.5. The decision in Koushal [Suresh Kumar
Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4
SCC (Cri) 1] stands overruled.
31.11. Amongst others and relevant for the present
discourse, it has been held and declared that members of
the LGBT community including transgenders are entitled
as all other citizens are to the full range of constitutional
rights including the lib erties protected by the
Constitution. They are entitled to the benefit of equal
citizenship without discrimination and to the equal
protection of law.
32. Parliament enacted the Transgender Persons
(Protection of Rights) Act, 2019 (briefly, ‘the Transgender
Persons Act’ hereinafter) to provide for protection of rights
of transgender persons and their welfare and for matters
connected therewith and inci dental thereto. It was
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published in the Gazette of India Extraordinary on
05.12.2019.
32.1. Section 2(d) defines “inclusive education” to mean as
a system of education wherein transgender students learn
together with other students without fear of
discrimination, neglect, harassment or intimidation and
the system of teaching and learning is suitably adapted to
meet the learning needs of such students.
32.2. A “transgender person” has been defined in Section
2(k) meaning a person whose gender does not match with
the gender assigned to that person at birth and includes
trans-man or trans-woman (whether or not such person
has undergone Sex Reassign ment Surgery or harmone
therapy or laser therapy or such other therapy), person
with intersex variations, genderqueer and person having
such socio-cultural identities as kinner, hijra, aravani and
jogta.
32.3. Section 3 prohibits discrimination against a
transgender person. It sa ys that no person or
93
establishment shall discriminate against a transgender
person on any of the following grounds – a) denial, or
discontinuation of, or unfair treatment in, educational
establishments and services thereof; b) unfair treatment
in, or in relation to, employment or occupation; c) denial
of, or termination from, employment or occupation;
d) denial or discontinuation of, or unfair treatment in,
healthcare services; e) denial or discontinuation of, or
unfair treatment with regard to, access to, or provision for
enjoyment or use of any goods, accommodation, service,
facility, benefit, privilege or opportunity dedicated to the
use of the general public or customarily available to the
public; f) denial or discontinuation of, or unfair treatment
with regard to the right of movement; g) denial or
discontinuation of, or unfair treatment with regard to the
right to reside, purchase, rent, or otherwise occupy any
property; h) denial or discontinuation of, or unfair
treatment in, the opportunity to stand for or hold public or
private office; and i) denial of access to, removal from, or
94
unfair treatment in government or private establishment
in whose care or custody a transgender person may be.
32.4. Section 4 acknowledges the right of a transgender
person to be recognized as such in accordance with the
provisions of the Transgender Persons Act. Sub-section (2)
of Section 4 makes it abundantly clear that a person
recognized as transgender under sub-section (1) shall
have a right to self-perceived gender identity.
32.5. Sections 5 and 6 deal with certificate of identity of a
transgender person. While Section 5 provides for making
of an application by a transgender person to the District
Magistrate for issuing a certificate of identify, Section 6
requires the District Magistrate to issue such certificate
after following the procedure and in the manner as may be
prescribed. In the said certificate, the gender of the
certificate holder should be indicated as “transgender”,
which shall be recorded in all official documents. Sub-
section (3) of Section 6 clarifies that a certificate of identity
issued to a transgender person by the District Magistrate
95
shall confer rights and be a proof of recognition of his
identity as a transgender person.
32.6. Section 7 deals with change in gender. As per
sub-section (1), if after the issue of a certificate under
sub-section (1) of Section 6, a transgender person
undergoes surgery to change gender either as a male or
female, such person may make an application, along with
a certificate issued to that effect by the Medical
Superintendent or Chief Medical Officer of the medical
institution in which that person has undergone surgery, to
the District Magistrate for a revised certificate, in such
form and manner as may be prescribed. Under sub-
section (2), the District Magistrate, on receipt of an
application along with the certificate issued by the Medical
Superintendent or Chief Medical Officer, and on being
satisfied with the corrections of such certificate, issue a
certificate indicating change in gender in such form and
manner and within such time, as may be prescribed.
Sub-section (3) clarifies that the person who has been
issued a certificate of identity under Section 6 or a revised
96
certificate under sub-section (2) shall be entitled to change
the first name in the birth certificate and all other official
documents relating to the identity of such person.
32.7. Section 8 deals with obligation of appropriate
Government to take welfare measures for transgender
persons. As per sub-sect ion (1), the appropriate
Government shall take steps to secure full and effective
participation of transgender persons and their inclusion in
society. Sub-section (2) provides that the appropriate
Government shall take such welfare measures as may be
prescribed to protect the rights and interests of
transgender persons and to facilitate their access to
welfare schemes framed by that Government. Under sub-
section (3) of Section 8, the appropriate Government shall
formulate welfare schemes and programmes which are
transgender sensitive, no n-stigmatising and non-
discriminatory. Further, as per sub-section (4), the
appropriate Government shall take steps for the rescue,
protection and rehabilitation of transgender persons to
address the needs of such persons. Sub-section (5)
97
mandates the appropriate Government to take appropriate
measures to promote and protect the right of transgender
persons to participate in cultural and recreational
activities.
32.8. Section 9 makes it clear that no establishment shall
discriminate against any transgender person in any
matter relating to employment including, but not limited
to, recruitment, promotion and other related issues.
32.9. Under Section 11, every establishment shall
designate a person to be a complaint officer to deal with
the complaints relating to violation of the provisions of the
Transgender Persons Act.
32.10. Section 12 deals with right of residence. As per
sub-section (1), no child shall be separated from parents
or immediate family on the ground of being a transgender,
except on an order of a competent court, in the interest of
such child. As per sub-section (2), every transgender
person shall have – a) a right to reside in the household
where parent or immediate family members reside; b) a
98
right not to be excluded from such household or any part
thereof; and c) a right to enjoy and use the facilities of
such household in a non-discriminatory manner. Sub-
section (3) provides that where any parent or a member of
his immediate family is un able to take care of a
transgender, the competent court shall by an order direct
such person to be placed in rehabilitation centre.
32.11. Section 13 requires every educational institution
funded or recognized by the appropriate Government to
provide inclusive education and opportunities for sports,
recreation and leisure activities to transgender persons
without discrimination on an equal basis with others.
32.12. As per Section 14, the appropriate Government
shall formulate welfare schemes and programmes to
facilitate and support livelihood for transgender persons
including their vocational training and self-employment.
32.13. Under Section 15, the appropriate Government
shall take various measures in relation to transgender
persons including facilitating access to hospitals and
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other healthcare institutions and centres, to provide for
coverage of medical expe nses by a comprehensive
insurance scheme for Sex Reassignment Surgery,
hormonal therapy, laser therapy or any other health
issues of transgender persons.
32.14. That apart, the Central Government in terms of
Section 16 is required to constitute a National Council for
Transgender Persons which shall have the Union Minister
of the Ministry of Social Justice and Empowerment as the
ex officio Chairperson.
32.15. Section 18 deals with offences and penalties. It
says that whoever –
(a) compels or entices a transgender person to
indulge in the act of forced or bonded labour other than
any compulsory service for public purposes imposed by
the Government;
(b) denies a transgender person the right of passage
to a public place or obstructs such person from using or
100
having access to a public place to which other members
have access to or a right to use;
(c) forces or causes a tr ansgender person to leave
household, village or other place of residence;
(d) harms or injures or endangers the life, safety,
health or wellbeing whether mental or physical of a
transgender person or tends to do acts including causing
physical abuse, sexual abuse, verbal and emotional abuse
and economic abuse;
Shall be punishable with imprisonment for a term
which shall not be less than six months but which may
extend to two years and with fine.
33. In exercise of the powers conferred by Section 22 of
the Transgender Persons Act and following the procedure
laid down therein, Central Government has made the
Transgender Persons (Protection of Rights) Rules, 2020
(briefly, ‘the Transgender Persons Rules’ hereinafter).
33.1. Rule 2(i) defines “medical intervention” to include
any gender affirming medical intervention undertaken by
101
an individual to facilitate the transition to their self-
identified gender, including but not limited to counselling,
hormonal therapy, and surgical intervention, if any.
33.2. Rules 3 to 7 deal with application for issue of
certificate of identity and the procedure for issuance of
such certificate.
33.3. In case of rejection of application for issuing a
certificate of identity, the District Magistrate under Rule 8
is required to inform the applicant the reason or reasons
for such rejection within thirty days. However, the District
Magistrate has the power to review the decision of
rejection based on the reply submitted by the applicant on
the reason for rejection.
33.4. However, under Rule 9, against an order of rejection
of application for the certificate of identity, the applicant
has the right to file an appeal before the appellate
authority within a period of ninety days from the date of
intimation of the rejection of the application.
102
33.5. Rule 10 is crucial. It deals with welfare measures,
education, social security and health of transgender
persons by appropriate Government. Sub-rule (1)
mandates the appropriate Go vernment to constitute a
welfare board for the transgender persons for the purpose
of protecting their rights and interests and facilitating
access to schemes and welfare measures framed by the
Government. Sub-rule (2) of Rule 10 provides that the
appropriate Government sh all review all existing
educational, social security, health schemes, welfare
measures, vocational training and self-employment
schemes to include transgender persons to protect their
rights and interests and to facilitate their access to such
schemes and welfare me asures framed by the
Government. As per sub-ru le (3), the appropriate
Government shall formulate educational, social security,
health schemes and welfare schemes and programmes in
a manner which is transgender sensitive, non-stigmatising
and non-discriminatory to transgender persons. Sub-rule
(4) says that the appropriate Government shall take
103
adequate steps to prohibit discrimination in any
Government or private organisation, or private and public
educational institution under their purview and ensure
equitable access to social and public spaces. The
appropriate Government under sub-rule (5) is under a
mandate to create institutional and infrastructure
facilities, including but not limited to rehabilitation centre,
separate wards in hospitals and washrooms in the
establishment within two years from the date of coming
into force of the rules to protect the rights of transgender
persons. That apart, the appropriate Government is
required to carry out an awareness campaign to educate,
communicate and train transgender persons to avail
themselves of the benefits of welfare schemes etc., besides
providing for sensitisation of various establishments
including sensitisation of teachers and faculty members in
educational institutions to foster respect for equality and
gender diversity as well as sensitization of healthcare
professionals etc. Very importantly, as per sub-rule (8) of
Rule 10, all educational in stitutions shall have a
104
committee which shall be accessible for transgender
persons in case of any harassment or discrimination.
Under sub-rule (9) of Rule 10, the appropriate
Government shall create institutional and infrastructure
facilities including but not limited to temporary shelters,
short-stay homes and accommo dation, choice of male,
female or separate wards in hospitals and washrooms in
the establishment within two years of coming into force of
these rules.
32.6. While sub-rule (11) requires the appropriate
Government to take adequate steps to prohibit
discrimination in any Government or private organisation
or establishment including in the areas of education,
employment, healthcare, public transportation,
participation in public life, sports, leisure and recreation
and opportunity to hold public or private office, the
appropriate Government is required to formulate a
comprehensive policy on the measures and procedures
necessary to protect transgender persons in accordance
with the provisions of the Transgender Persons Act. Such
105
a policy shall include preventive administrative and police
measures to protect vulnerable transgender communities.
The appropriate Government shall be responsible for
supervision of timely prosecution of individuals charged
under Section 18 of the Transgender Persons Act or under
any other law for similar offences committed against
transgender persons. Besides that, under Rule 11(5),
every State Government sh all set up a Transgender
Protection Cell under the charge of the District Magistrate
in each District and under the Director General of Police
in the State to monitor cases of offences against
transgender persons and to ensure timely registration,
investigation and prosecution of such offences.
33.7. Under Rule 12(1), every establishment shall
implement all measures for providing a safe working
environment and to ensure that no transgender person is
discriminated in any matter relating to employment etc.
33.8. Rule 13 requires the appropriate Government to
ensure that every establishment designates a complaint
106
officer in accordance with Section 11 to enquire into
complaints received.
34. Annexure II to the Tr ansgender Persons Rules
contains a list of welfare measures to be considered. It
includes access to health, access to education including
providing scholarship for transgender students; access to
housing including providing affordable housing, shelters
and community centres for at risk transgender youths
providing nutritious food and counselling etc, welfare
measures and economic support.
35. After enactment of the Transgender Persons Act and
the Transgender Persons Rules, Government of Telangana
in the Department for Wome n, Children, Disabled and
Senior Citizens issued G.O.Ms.No.21 dated 19.08.2022.
Vide the said G.O.Ms.No.21 proposal submitted by the
Director, Welfare of Disabled and Senior Citizens for
constitution of State Welfare Board for transgender
persons for protecting the rights and interests of
transgender persons in terms of Rule 10(1) of the
107
Transgender Persons Rules was accepted. Whereafter, the
State Welfare Board has been constituted which we have
noted in our order dated 19 .10.2022. While the said
G.O.Ms.No.21 has laid down the functions of the Board,
the tenure of the Board has been made for two years with
the caveat that it would meet once in six months to advise
the State Government on effective implementation of the
Transgender Protection Act and to perform such other
functions in relation to transgender persons. We have also
noted the action plan prepared by the Government of
Telangana for implementation of various welfare activities
for transgenders for the year 2022-23.
36. While we appreciate constitution of the State Welfare
Board and drawing up of action plan, what is required is
that the State Welfare Board should take pro-active steps
for betterment of the transgender population and to
ensure implementation not only of the action plan but also
the provisions of the Transgender Persons Act and the
Transgender Persons Rules. We also feel that having
regard to the mandate of the Legal Services Authority Act,
108
1987, the State should also involve the legal services
authorities while implementing various provisions of the
Transgender Persons Act and the Transgender Persons
Rules as well as the action plan. Involvement of legal
services authorities to implement the aforesaid provisions
would go a long way in providing access to justice for the
transgender persons. There are many transgender persons
in the society and to expect all of them to approach the
district magistrate or the revenue divisional officer for a
certificate of identity would be wholly unrealistic. In
situation such as this, legal services authorities certainly
have a role to play. Instead of asking the transgender
persons to approach the auth orities for certificate of
identity or for various other welfare measures, proactive
steps should be taken to reach out to the members of the
transgender community considering their vulnerability.
37. We further notice that notwithstanding the direction
of the Supreme Court in NALSA (supra) for providing
affirmative action to persons belonging to the transgender
community as socially and educationally backward class
109
no such steps have been taken either by the Central
Government or by the State Government even though
more than nine years have elapsed since delivery of the
aforesaid judgment.
38. We are therefore of the view that till proper
legislation is brought in place, the State Government as
well as the Central Government may issue administrative
instructions providing for reservation to persons belonging
to the transgender community in public employment as
well as in educational institutions. This would go a long
way in bringing the transgender community into the
mainstream fold.
39. We may mention that Go vernment of Telangana in
the Panchayat Raj and Rural Development Department
had issued G.O.Ms.No.17 da ted 05.11.2014 whereby
Government of Telangana as a part of its social safety
need strategy introduced the Aasara Pension Scheme with
a view to ensure secured life with dignity for poor persons.
The object of the scheme is to protect the most vulnerable
110
sections of society in particular “the old and the disabled”
people having HIV/AIDS, widows, incapacitated weavers
and toddy tappers who have lost their means of livelihood
with growing age and in order to support their day-to-day
minimum needs to lead a life with dignity and social
security. Government noted th at in the past social
security pensions provided were meagre and barely
sufficient to cover the basic minimum requirements of the
needy. With a view to combat the ever increasing cost of
living and inflation, the Government introduced the
scheme called “Aasara Pensions” to provide financial
benefit to all the above categories particularly those who
are most needy. The scheme was made effective from
01.10.2014 and initially the following categories were
made eligible for Aasara Pension Scheme:
(1) old age; (2) widow;
(3) disabled; (4) weavers;
(5) toddy toppers; (6) persons with HIV/AIDS
111
39.1. The scheme provides for grant of monthly pension of
Rs.1,000/- per month except for the disabled in which
case it was made Rs.1,500/-.
40. In the affidavit filed by the Secretary to the
Government of Telangana, Panchayat Raj and Rural
Development Department on 14.10.2022, it is stated that
after formation of Telangana State, Government of
Telangana had launched Aasa ra Pension Scheme vide
G.O.Ms.No.17 dated 05.11.2014 wherein detailed
guidelines have been framed for implementation of the
said scheme in the State of Telangana. Society for
Elimination of Rural Poverty is the nodal agency for
implementation of the scheme. As per the affidavit, the
following categories are covered under Aasara Pension
Scheme:
1. Old Age Pensions
2. Widow Pensions
3. Disabled Pensions
4. Weavers Pensions
5. Toddy Tappers Pensions
6. Filaria Pensions
7. HIV Pensions
8. Financial Assistance to Beedi Workers
9. Financial Assistance to Single Women
10. Dialysis Patients.
112
40.1. In the said affidavit, it has been submitted that
transgender persons are eligible for sanction of pension
under the Aasara Pension Scheme provided they fall
within any of the eligible categories mentioned above.
41. We are afraid the State has not appreciated the
judgments of the Supreme Court and different High
Courts as well as proceedings of this Court in the correct
perspective. If widows, disabled persons, beedi workers,
single woman, HIV persons etc., are entitled to the benefit
under the Aasara Pension Scheme as a class, we fail to
understand as to why and how transgender persons can
be excluded from such benefits as a class. As we have
discussed above, transgender community is one of the
most deprived, neglected and discriminated against
communities in the State and in the country. They have
been held to be belonging to socially and economically
backward class. They fulfil eligibility requirement under
the Aasara Pension Scheme. We are, therefore, of the view
that benefit of G.O.Ms.No.17 dated 05.11.2014 as
113
amended from time to time should be made available to
the members belonging to the transgender community.
42. This brings us to the Telangana Eunuchs Act, 1329
Fasli. Earlier it was called the Andhra Pradesh (Telangana
Area) Eunuchs Act, 1329 Fasli. Following reorganisation
of the combined State of Andhra Pradesh into the States of
Telangana and Andhra Pradesh following the Andhra
Pradesh Reorganisation Act, 2014, the aforesaid Act came
to be known as ‘Telangana Eunuchs Act, 1329 Fasli”.
42.1. Section 1-A defines the word ‘eunuch’. It says that
the word ‘eunuch’ shall for the purpose of the Act include
all persons of the male sex who admit to be impotent or
who clearly appear to be impotent on medical inspection.
This definition of eunuch is not only repugnant to the
definition of transgender person under Section 2(k) of the
Transgender Persons Act but also opposed to the
interpretation given by the Supreme Court to the word
‘transgender’ in NALSA (supra) and subsequent judgments.
114
42.2. As per Section 2, the Government shall cause a
register to be kept of the names and place of residence of
eunuchs residing in the city of Hyderabad. A person who
may feel aggrieved by an entry made or proposed to be
made in the aforesaid register, may lodge a complaint
before the registering authority either when the register is
first made or subsequently. Upon lodging of such
complaint, the aforesaid officer shall either enter, remove
or retain the name of such person in the register as he
thinks fit. However, every order for removal of the name of
such person from the register shall contain the grounds of
the removal thereof. The concerned District Magistrate has
been conferred the power to review such an order.
42.3. As per Section 4, every registered eunuch found in
female dress or ornamented in a street or a public place or
in any place with the intention of being seen from a street
or public place or who dances or plays music or takes part
in any public entertainment in a street or public place
may be arrested without warrant and shall be punished
115
with imprisonment for a term which may extend to two
years or with fine or with both.
42.4. Section 5 provides that any registered eunuch who
has with him or in his house or under his control a boy of
less than sixteen years of age shall be punished with
imprisonment for a term which may extend to two years or
with fine or with both. In such an event, the District
Magistrate has been empowered to direct that such a boy
be delivered to his parents or guardian, if they can be
discovered and if they are not eunuchs; if they cannot be
discovered or the parents or guardian are eunuchs, the
Magistrate may make such arrangement as he thinks
necessary for the maintenance, education of such boy and
may direct that the whole or any part of a fine inflicted
under Section 5 may be applied for such arrangement.
42.5. Section 7 provides for penalty for emasculation or
abetting thereof. It says that any person who emasculates
himself or any other person with or without his consent or
abets in emasculation shall be punished with
116
imprisonment for a term which may extend to seven years
and shall also be liable to fine.
43. It may be mentioned that the colonial British
Government had enacted the Criminal Tribes Act, 1871 for
registration of criminal tribes and eunuchs. The preamble
to the said Act states that it was expedient to provide for
registration, surveillance and control of certain criminal
tribes and eunuchs.
43.1. Thus, from the preamble itself, it is seen that the
said Act had grouped together certain tribes declared as
criminal tribes and eunuchs under a single classification.
Therefore, the Act proceeded on the assumption that
eunuchs as a class were criminal. As per Section 2, if the
local government had reason to believe that any tribe,
gang or class of persons was addicted to the systematic
commission of non-bailable offences, it would report the
case to the Governor General in Council requesting his
permission to declare such tribe, gang or class to be a
criminal tribe.
117
43.2. Section 3 mandated furnishing of reasons in the
report as to why such tribe, gang or class was considered
to be addicted to the systematic commission of non-
bailable offences etc. While rest of the provisions provide
for the procedure to deal with such tribe, gang or class
declared as criminal tribes, it is Part II of the said Act
which has relevance to the present discourse.
43.3. Part II comprising of Sections 24 to 31 deal with
eunuchs. Section 24 provided for maintenance of a
register containing the names and residences of all
eunuchs residing in any town or place who were
reasonably suspected of kidnapping or castrating children
or committing offences under Section 377 IPC or abetting
the commission of any of the said offences. A register of
property of such registered eunuchs were also required to
be maintained. The term ‘eunuch’ was defined for the
purpose of the Criminal Tribes Act, 1871 to include all
persons of the male sex who admitted themselves or on
medical inspection clearly appeared to be impotent.
118
43.4. Section 25 provides for lodging of complaint by a
person on his name being entered in the register of
eunuchs. The officer entertaining such a complaint could
enter such person’s name or erase it or retain it, as he
deemed fit. However, every order for eraser of such
person’s name should st ate the grounds for such
erasement.
43.5. Section 26 penalised any registered eunuch who
appeared dressed or ornamented like a woman in a public
street or place, or in any other place with the intention of
being seen from a public street or place or who danced or
played music or took part in any public exhibition in a
public street or place or for hire in a private house. Such a
eunuch could be arrested without warrant and punished
with imprisonment of either description for a term which
could extend to two years or with fine or with both.
43.6. Section 27 imposed penalty on a registered eunuch
who had in his charge or kept in his house or under his
control any boy who had not completed the age of sixteen
119
years. The penalty prescribed was imprisonment for a
term which could extend to two years or with fine or with
both.
43.7. Section 28 mandated the jurisdictional magistrate to
return such boy to the parents or guardian, if they could
be discovered. However, if they could not be discovered,
the magistrate was required to make such arrangements
as he thought necessary for the maintenance and
education of such boy, in which event the whole or any
part of the fine inflicted under Section 27 would be
employed in defraying the cost of such arrangements.
43.8. As per Section 29, no registered eunuch was capable
of or being or acting as guardian to any minor; or of
making a gift; or of making a will, or of adopting a son.
Power to require information as to register a eunuch’s
property was provided in Section 30. Any officer
authorised by the local government in this behalf could
direct any eunuch so required to furnish information as to
the property whether movable property or immovable
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property which he possessed or entitled or which was held
by him. If any eunuch intentionally omitted to furnish
such information or furnished information which he had
reason to believe to be false was deemed to have
committed an offence under Section 176 IPC or under 177
IPC.
44. Pausing here for a moment, we find that provisions
of the Telangana Eunuchs Act, 1329 Fasli are almost in
pari materia to the provisions contained in Part II of the
Criminal Tribes Act, 1871 comprising Sections 24 to 31
which we have discussed.
45. After India became independent, a high level
committee was constituted to examine the Criminal Tribes
Act, 1871, as amended from time to time. Following its
recommendations, the Crimin al Tribes Act, 1871 was
repealed in 1952. It was one of the most draconian laws
enacted by the colonial Government. Under the aforesaid
law, people belonging to various tribes were declared as
criminal tribes and were put under continuous
121
surveillance. We have already noticed above that eunuchs
were categorised with such tribes declared as criminal
tribes. Such an enactment was not only arbitrary but had
stigmatised entire communities including the eunuchs as
criminals. Once a tribe was declared as a criminal tribe or
in case of eunuch, they were presumed to be criminal and
police had the power of surveillance over them, to arrest
them and to monitor their day-to-day lives.
46. Supreme Court in NALSA (supra) observed that
during the British rule, a legislation was enacted to
supervise the hijras/transgender community called the
Criminal Tribes Act, 1871 which deemed the entire
community of hijra persons as innately ‘criminal’ and
addicted to the systematic commission of non-bailable
offences. Supreme Court held as under:
18. We notice that even though historically,
hijras/transgender persons had played a prominent
role, with the onset of Colonial rule from the 18th
century onwards, the situation had changed
drastically. During the British Rule, a legislation was
enacted to supervise the deeds of hijras/TG
community, called the Criminal Tribes Act, 1871,
122
which deemed the entire community of hijra persons
as innately “criminal” and “addicted to the systematic
commission of non-bailable offences”. The Act
provided for the registration, surveillance and control
of certain criminal tribes and eunuchs and had
penalised eunuchs, who were registered, and
appeared to be dressed or ornamented like a woman,
in a public street or place, as well as those who
danced or played music in a public place. Such
persons also could be arrested without warrant and
sentenced to imprisonment up to two years or fine or
both. Under the Act, the Local Government had to
register the names and residence of all eunuchs
residing in that area as well as of their properties,
who were reasonably suspected of kidnapping or
castrating children, or of committing offences under
Section 377 IPC, or of abetting the commission of any
of the said offences. Under the Act, the act of keeping
a boy under 16 years in the charge of a registered
eunuch was made an offence punishable with
imprisonment up to two years or fine and the Act
also denuded the registered eunuchs of their civil
rights by prohibiting them from acting as guardians
to minors, from making a gift deed or a will, or from
adopting a son. The Act has, however, been repealed
in August 1949.
46.1. In his concurring judgment, Justice Sikri also
referred to the Criminal Tribes Act, 1871 as follows:
116.1. Though in the past TGs in India were treated
with great respect, that does not remain the scenario
123
any longer. Attrition in their status was triggered
with the passing of the Criminal Tribes Act, 1871
which deemed the entire community of hijra persons
as innately “criminal” and “adapted to the systematic
commission of non-bailable offences”. This
dogmatism and indoctrination of the Indian people
with aforesaid presumption, was totally capricious
and nefarious. There could not have been more harm
caused to this community with the passing of the
aforesaid brutal legislation during the British Regime
with the vicious and savage mind-set. To add insult
to the irreparable injury caused, Section 377 of the
Penal Code was misused and abused as there was a
tendency, in the British period, to arrest and
prosecute TG persons under Section 377 merely on
suspicion. To undergo this sordid historical harm
caused to TGs of India, there is a need for incessant
efforts with effervescence.
47. On a comparative analysis, it is evident that
Telangana Eunuchs Act, 1329 Fasli is pari materia to Part
II of the Criminal Tribes Act, 1871. While Criminal Tribes
Act, 1871 as amended from time to time, has been
repealed by the Central Government, the Telangana
Eunuchs Act, 1329 Fasli co ntinues to remain in the
statute book though this Court vide the order dated
18.09.2018 had stayed its implementation.
124
48. Following the law laid down by the Supreme Court in
NALSA (supra) and in subsequent judgments in Puttaswamy
(supra) and Navtej Singh Johar (supra), there can be no iota
of doubt that such an enactment is anathema to our
constitutional philosophy as explained by the Supreme
Court in the above judgments. This is not only arbitrary
and unreasonable but is also manifestly arbitrary in as
much as it criminalises the entire community of eunuchs.
49. This legislation is violative of the human rights of the
third gender community besides it is an intrusion into
their private sphere as well as an assault on their dignity.
It is thus offensive of both the right to privacy and the
right to dignity of transgender persons. It is not only
violative of Article 14 but is also clearly violative of Article
21 of the Constitutional of India. Such an enactment can
no longer continue to find a place in our statute book. It is
accordingly declared as unconstitutional.
50. In NALSA (supra), Supreme Court had issued a series
of directions besides declaring that hijras/eunuchs etc. be
125
declared and treated as third gender. Supreme Court had
directed the Central and State Governments to treat
persons belonging to the third gender is socially and
educationally backward class of citizens and to extend all
kinds of reservation in cases of admission to educational
institutions and in appointments. Though Parliament had
enacted the Transgender Persons Act whereafter the
Central Government has framed the Transgender Persons
Rules, no reservation has been provided for to the
transgender community in matters of admission to
educational institutions and for recruitment to public
services. It is high time steps are taken in this regard.
51. We are therefore of the view that till the Telangana
Legislative Assembly enacts any law providing for such
reservation, State of Telangana may issue necessary
Government orders/administrative instructions providing
for such reservation to persons belonging to transgender
community in respect of admission to educational
institutions and in recruitment to public services.
126
52. Having regard to the discussions made above, we
feel that the State Welfare Board for transgender persons
should be made a permanen t body though the Members
may have a tenure of two years. It shall be the duty of the
said Board to monitor various steps taken by the State
Government for implementation of the directions of the
Supreme Court in NALSA (supra) as well as the steps taken
by the State Government fo r upliftment of persons
belonging to the transgender community. It should also
oversee the proper implementation of the Transgender
Persons Act and the Transgender Persons Rules. We feel
that having regard to the mandate of such a Board, it
would be useful to involve Telangana State Legal Services
Authority in its functioning. We are therefore of the view
that the State Government should co-opt the Member
Secretary of Telangana State Legal Services Authority as a
Member of the State Welf are Board for transgender
persons.
53. Summing up our discussions, we issue the following
directions:
127
(1) The Telangana Eunuch s Act, 1329 Fasli is
declared as ultra vires the Constitution of India and
accordingly is struck down as unconstitutional;
(2) The benefits of Aasara Pension Scheme
introduced by the Governme nt of Telangana vide the
G.O.Ms.No.17 dated 05.1.2014 shall be extended to the
transgender persons as a class;
(3) State of Telangana is directed to issue
government orders/administrative instructions providing
for reservation to persons belonging to the transgender
community in matters of admission into educational
institutions and recruitment to Government and public
services;
(4) State Welfare Board for transgender persons,
Telangana State shall co-opt Member Secretary,
Telangana State Legal Services Authority as one of its
members. It shall be a permanent body though individual
members may have a limited tenure; and
(5) State Welfare Board for transgender persons,
Telangana State shall monitor the various steps taken by
128
the Government of Telangana for upliftment of the
transgender community including the proper and effective
implementation of the Transgender Persons (Protection of
Rights) Act, 2019 and the Transgender Persons (Protection
of Rights) Rules, 2020.
54. With the above directions, all the three public
interest litigations are disposed of.
Miscellaneous applications, if any pending, shall
stand closed.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
C.V.BHASKAR REDDY, J
06.07.2023
Note: LR copy be marked.
By order
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