Transwoman Moves Kerala High Court Against Denial Of Medical Treatment In Jail For Undergoing Gender Affirmation Surgery

Justice Johnson John directed the registry to number the petition and the public prosecutor sought time to get instructions on behalf of the State Government, Law Secretary, Director General of Prisons and Correctional Services and Prison Welfare Officer.

The Court observed in the interim order thus, “Considering the fact that the matter relates to the treatment of the petitioner who is in custody, and the submission of the learned counsel of the petitioner that the petitioner will file the required affidavit within one week, the registry is directed to number the petition. Learned public prosecutor takes notice for respondents 1 to 4 and seeks time to get instructions. The learned Public Prosecutor submitted that necessary directions will be given to the jail superintendent of the Sub-Jail, Kakkanad to provide necessary medical aid to the petitioner”.

The petitioner is also a sex worker and was accused of offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for allegedly possessing contraband substances. In her plea, she submitted that a contraband substance was seized from a customer who visited her and that she was unaware that he possessed any contraband substance. The petitioner's bail application was rejected on April 5, 2024.

The petitioner is a transwoman and was undergoing synthetic hormone therapy for three years for undergoing gender affirmation surgery. It is submitted that she was denied medical treatment by the police authorities since the day of her arrest.

The petitioner relied upon the decision in Budhadev Karmaskar v State of West Bengal (2022) to state that despite the direction of the Apex Court, the state government has not drafted policies for the rehabilitation and welfare of sex workers.

It is submitted that it is the responsibility of the State Government to provide healthcare facilities to the prisoners. It is also submitted that the State Government has duty to provide healthcare facilities for transgender persons as per Section 15 of the Transgender Persons (Protection of Rights) Act, 2019.

It is submitted that the denial of medical treatment to the petitioner violates human rights and fundamental rights under Articles 14 (2), 19 (1)(g) and 21 of the Constitution of India.

The petitioner thus seeks immediate medical aid to be provided in jail. The petitioner also seeks compensation of ten lakh rupees from the State Government for denial of medical treatment in prison because of which gender affirmation surgery would be delayed.

Further, the petitioner prays for direction to the State Government for the implementation of rehabilitation policies for the welfare of sex workers as per Budhadev (supra) to ensure the right to live with dignity.

The Plea has been moved by Advocates Padma Lakshmi, Athira CK, Radhika Krishna

Case Title: Ahana v State of Kerala

Case Number: WP (Crl) 519/2024 (filing number)