Madras High Court Directs TN Govt To Provide Reservation To Transgender Persons In Local Body Elections

"The 1st respondent / District Collector, Cuddalore District is directed to initiate all appropriate actions under the Tamil Nadu Panchayats Act, 1994 for removal of the President and the Members of the Nainarkuppam Village Panchayat by following the procedures," the court said.

Justice SM Subramaniam also highlighted that the transgender persons have a right to reservation and it is time for the Tamil Nadu government to initiate steps to provide reservation to Transgender persons in the local body to ensure their inclusion in the mainstream society and for their democratic participation. As an initial measure, the court directed the Cuddalore District Collector to ensure that reservation is granted to Transgender persons in the local body.

"It is also important to hear the voices of this community...In order for this, the reservation for Transgenders must extend to forums of law making institutions. It is in these law making forums, where Transgender persons can express their views and discuss their rights. More so, Transgender persons have a Right to Reservation, owing to the fact that “they are socially Backward Class," the judge said.

In the previous hearing, the court had asked the Panchayat President ND Mohan to produce the transphobic resolution. While producing the same, Mohan admitted that the resolution was passed without knowing the rights of the transgender persons and sought to withdraw the petition which he had filed as a result of inaction for the Collector upon the resolution.

Noting that allowing such withdrawal would mean an "acceptance of the social evil caused at the instance of the elected body", the court said that the constitutional courts could not fail their duty to protect the constitutional mandate.

"The Constitutional Courts are failing in its duty to protect the Constitutional Mandates, Philosophy and Ethos, if the petitioner is permitted to withdraw the writ petition. Therefore, the petitioner cannot be allowed to walk away simply by withdrawing the writ petition filed seeking a direction to the District Collector not to grant patta to the Transgender persons in their Village under the Government schemes," the court observed.

Observing that it was necessary to remove the social stigma attached to Transgender persons, the court said that each and every being is a gift and the mental and social pressure being faced by the Trans community could only be understood by a empathetic mind. The court also observed that though differences are inevitable, an understanding of this diversity is essential for a harmonious societal structure

"Each and every living being is a gift. Gifts may be wrapped in various colours, designs and appearances and these gifts springs up with countless surprises. It is the same with each one of us. The level of mental and social pressures faced by such distinctive community of people can only be understood by an empathetic mind. They have been ostracised by this very society for centuries. THIS SOCIAL OSTRACISATION IS THE ANTI-THESIS OF HUMANITY," the court said.

The court further observed that the same society which considered the community as a bringer of good luck also treated them with contempt. The court also noted that though State was bringing social welfare schemes to support the community, they were often not implemented by the bottom rung of the Executive, who were in direct contact with the people.

Thus, the court also directed the District Collector to ensure that Transgender persons are granted free house site patta based on eligibility and that the Transgender persons are allowed to participate in Village festivals and conduct worship in all religious institutions.

Case Title: The President v The District Collector

Citation: 2023 LiveLaw (Mad) 240