Gauhati HC Issues Notice On PIL Seeking Direction For Immediate Steps On Appointments To National Council For Transgenders As Per S.16 of Transgenders Act [Read Order]

It states that the Supreme Court in its judgment in National Legal services Authority (NALSA) v. Union of India has issued certain directions to the Centre and the state governments for the welfare of transgender persons. In furtherance of the same, the Ministry for Social Justice and Empowerment enacted the Transgender Persons (Protection of Rights) Act, 2019.

The constitutional validity of the Act in itself is currently under challenge before the Supreme Court, and the move comes across as rushed, especially when the country is facing a pandemic. The Petition states that in the interim the Ministry for Social Justice and Empowerment has constituted a National Council for Transgenders.

The Petitioner alleges that the constitution of the council is arbitrary, since some trans and some non-trans members with a complete lack of expertise have been appointed. The appointment did not follow any standard protocol, and further alleges that such appointment is mala fide and does no service to the transgender community. The notification constituting the council has been challenged on the grounds of Article 14 of the Constitution of India. Article 14 of the Constitution of India guarantees every ciziten equal protection before and of the laws of India. The Petitioners have sought for the gazette notification by the Ministry of Social Justice and Empowerment/Government of India to be quashed, and to look into the constitution of the council by evolving a stakeholder inclusive procedure.

The petition also stresses that the National Council for Transgenders has within its ambit the performance of important functions such as to advise the Central Government on the formulation of policies, programmes, legislations and projects with respect to transgender persons, to review and co-ordinate the activities of all the departments of the government and other governmental and non-governmental organisations which deal with matters related to transgender persons and address their grievances. Section 16 of the Transgender Persons (Protection of Rights) Act, 2019 requires five representatives of the transgender community by rotation, from the north, south, east, west and north-east respectively, and five experts to represent non-governmental organisations or associations working for the welfare of the transgender community, both to be nominated by the Central Government, members.

The petition challenges the inclusion of certain names in the Council as being arbitrary and completely illegal since they are neither representative of the trans community nor are they experts.

The Gauhati High Court has agreed to hear the petition, and issued notice in it. The Petitioner Association has been founded by Swati Bidhan Baruah, India's first transgender lawyer. The public interest litigation has been filed through her and settled by Advocate Jayna Kothari.