Transgender Activist Moves SC For Third Gender Option In PAN Cards [Read Petition]

Even as the Supreme Court had way back in the year 2014 assured that transgenders be treated as “third gender” and granted legal recognition of their identities, they continue to face hardships in routine affairs such as filing of income tax returns since there is no option for a “third gender” on PAN cards and forms.

Faced with trouble in filing income tax returns, a transgender social activist from Patna, Bihar, has moved the Supreme Court seeking directions to the Centre to create a separate “third gender” category on PAN cards and application forms for PAN to enable transgender persons to get accurate identity proofs.

In her petition filed through Human Rights Law Network, Reshma has challenged the September 19, 2017 order passed by the High Court at Patna dismissing her petition for self-identify as the Third Gender in PAN for the purpose of linking PAN and Aadhaar and to avail of the associated benefits.

Reshma said in her petition that in 2017, she was recognised by the Government of Bihar for her innovative idea of a new start-up known as NaachBaaja.com to provide a platform to transgenders in Bihar and to recognise their skills of dance and music as an art.

Reshma wanted to avail of the financial grants from the state of Bihar for registering her company. She, however, failed to register the same despite several attempts because it required the creation of a Digital Signature Certificate on the website of the Ministry of Corporate Affairs for which identity proofs such as Aadhaar Card and PAN are needed.

Reshma’s counsel Nabila Hasan from HRLN said following the NALSA judgment of 2014, the Aadhaar system was updated and the Aadhaar card/number has since been issued in the category of the third gender/transgender for persons of the third gender community.

The Centre then issued a notification in June 2017 mandating linking of PAN with Aadhaar.

“Petitioner being a law-abiding citizen also made several attempts to get her Aadhaar number linked with the PAN but unfortunately each of her attempts lasted in vain. It appears that the online/offline systems of the Department despite the Judgment passed in the National Legal Services Authority Vs. Union of India & Ors does not recognize the third gender as a separate gender…Even the application for PAN does not have a separate option of ‘third gender’ in the category of gender. PAN cards/numbers to date are being issued with gender as male or female only,” said Ms Hasan in the petition.

She said the anomaly renders linking of Aadhaar with PAN unsuccessful in cases of those third gender individuals whose gender as mentioned in the Aadhaar and PAN card are different.

The petition also cited that the Gujarat government had in 2017 written to New Delhi office for taking steps to include the third category in the application form for obtaining PAN card by forwarding a petition by Lakshya Trust, a charitable organisation.

Reshma’s PAN card was created in 2012 and listed her as male. After the NALSA v UoI (2014) order, Aadhaar included third gender in its rolls and Reshma enrolled in its database under the transgender category.

“But this facility was not extended to PAN cards. Thus, when the government issued the notification making Aadhaar-PAN linkage mandatory, Reshma – and several other transgender persons across the country – could not get this done as her gender on the two cards do not match. As a result of this, Reshma is not able to file income tax returns as a transgender person as a gazette notification from the Ministry of Finance last year asks people to provide their Aadhaar numbers while fixing tax returns,” said the petition.

On August 1, 2017, Reshma had sent a representation to the Chief Commissioner (Bihar and Jharkhand), Department of Income Tax, seeking to change her identity on her PAN card and personally visited their offices but in vain.

The SLP contended that “preventing transgender persons from receiving a PAN card by solely limiting registration to males and females is arbitrary, incongruent with the decision of the Supreme Court in NALSA (2014), and is inconsistent with numerous provisions of the Constitution...”

The matter was listed before the Supreme Court on March 28. The court directed Ms Hasan to serve a copy of the petition on the Attorney General of India and listed the matter after eight weeks.