"If Display Of Affection Between LGBT Partners Isn't Indecent, It Can't Be Bogged Down By Majority Perception:" Allahabad High Court Reinstates LGBT Member In Service

The Bench of Justice Sunita Agarwal noted that in the Counter Affidavit (filed by the officer who had passed the order of cancellation) sexual orientation of the petitioner was stated to be indulgence in untoward activity.

Observing that it is completely in violation of the observations of the Apex Court in Navtej Singh Johar v. Union of India reported in (2018) 10 SCC 1, the Court directed the Commandant General of Home Guards, Head Quarters, U.P. Lucknow to take the petitioner back in service with immediate effect.

The matter before the Court

Vide order dated 11^th June 2019 the appointment of the petitioner to the post of post of Home Guard was cancelled on account of some video of the petitioner which was made viral by someone.

Noting that the Order is in violation of the Navtej Singh Johar ruling, the Court remarked,

"The Apex Court in the said case has held that the sexual orientation of the person is his individual choice and any act of treating it as an offence would be interference in the right of the privacy of the person concerned."

Importantly, the Court said,

"It was held that any display of affection amongst the members of the LGBT community towards their partners in the public, so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception."

Regarding the order passed by District Commandant of Home Guards, Bulandshahar, the Court called it "vindictive in nature". Thus, allowing the Writ Petition, the Court quashed the said Order.

Lastly, the Court directed,

"The respondent No.2 i.e. the Commandant General of Home Guards, Head Quarters, U.P. Lucknow is directed to take the petitioner back in service with immediate effect. The petitioner shall be entitled to all admissible dues and the honorarium shall be paid regularly as and when the same falls due."

Notable orders of other High Courts

Underlining that the transgender communities are required to be accorded equal status as the other prevalent genders of society, the Calcutta High Court last week issued direction that reservation and other benefits for transgenders in Joint CSIR-UGC NET Examinations at all levels be provided immediately.

Recently, the Bihar Government informed the Patna High Court that vide notification dated 14^th January, 2021, it has taken a decision for providing reservation in appointment to the post of Constables/Sub-Inspectors, for the persons belonging to the Transgender Community.

Further, while noting that Transgender Persons (Protection of Rights) Act, 2019 permits a transgender person to have a right to be recognized and such transgender is permitted to have a right to self-perceived gender identity, the Bombay High Court (Aurangabad Bench) on Saturday (02^nd January) allowed a transgender to contest village panchayat polls as a Woman candidate.

The Bench of Justice Ravindra Ghuge allowed the plea filed by Anjali Guru Sanjana Jaan, who challenged an order passed by the returning officer who rejected her nomination for the village panchayat polls.

Also, the Centre has recently informed the Delhi High Court that Transgender shall now be included as a separate gender category in Prison Statistics Report prepared by the National Crime Records Bureau (NCRB).

The Kerala High Court has also observed that "Person cannot be denied a legitimate right only because she is a transgender".

Justice Devan Ramachandran noted this, while hearing a plea filed by a Transwoman, challenging Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution of India.

It may be noted that a Petition has been moved in the Kerala High Court challenging Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent that it excludes the transgender community from enrolment with the National Cadet Corps.

Notably, the High Courts of Karnataka, Jharkhand and Telangana have also ordered the Government to ensure that the Transgender community is provided adequate protection and benefits during the lockdown.

In the month of May, a petition was also filed in the Kerala High Court seeking protection of the community against discrimination in the grant of relief measures during the lockdown.

In the month of June, the Bombay High Court had directed the Principal Secretary to the State Social Justice and Special Assistance Department to consider and dispose of within a fortnight, concerns expressed by an activist working for the transgender community, regarding the plight of the members especially after the lockdown and seeking directions for the formulation of a welfare scheme for the 40,000 members of the community in the State.

Recently, the Karnataka High Court has directed the State Government to take steps for implementation of the relevant provisions of the Transgender Persons (Protection of Rights) Act, 2019 and also extend all kinds of the reservation to members of the community.

In the month of July, the Karnataka High Court had sought a reply from the state government on why it has not included a separate category for the transgender community in its notification for recruitment to the post of Special Reserve Constable Force and Bandsmen.

Case title - Pramod Kumar Sharma v. State Of U P And 2 Others [WRIT - A No. - 8399 of 2020]

Click Here To Download Order

Read Order