No Reason To Deny Any Basic Human Right To Transgender Community : Kerala HC Directs To Ensure Supply Of Ration Cards, Free Medicines

A bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly directed that, "If and when any member of the transgender community approaches the District Authority or Nodal Officer appointed for the purpose of issuing gender identity card and the ration card, necessary steps shall be taken at the earliest to address the issues, and on being satisfied, to take immediate steps to issue identity card and ration card to such persons."

Also the court directed the state to address properly any issues raised by the transgenders in writing. With regard to the five transgender persons mentioned in the statement filed by the petitioner the court held that :

"If five persons mentioned in the statement filed by the petitioner are approaching the concerned District Authority constituted by the Government for the purpose of addressing the issues of the transgenders, the same shall be looked into and provide necessary articles and medicines to such persons and their grievances shall be alleviated. "

The directions were passed in a writ petition filed by Aneera Kabir.

CONTENTIONS RAISED BY THE PETITIONER :

The petitioner contented for the benefits of the law laid in the Apex Court decision in National Legal Service Authority v. Union of India and Other s [(2014) 5 SCC 438], and presented before the court that the transgender community in Kerala especially in the lock down situation are facing severe crisis in terms of access to essential food supply, medicines and allied treatments. Equally they are facing threat of torture from the part of police authorities.

THE KERALA STATE'S CONTENTION

The State of Kerala through its affidavit had contended that state of Kerala never followed a different treatment towards its people especially in the time of these grave crisis. They have made earnest efforts to protect the rights and interest of the Transgender community. The State of Kerala submitted that, the Kerala state is flamboyant for its transgender policy and and its the first state in the country to implement such a policy for the holistic empowerment of the transgender community.

The state had further stated some of the welfare measure they administered for the benefit of the transgender community, as follows :

• Authorities like transgender justice Board in the state level and a Transgender Justice committee at the District level
• Various Schemes for the overall upliftment and protections of persons belonging to transgender community interms of self employment, marriage assistance, financial aid for self employment and sex rearrangement surgery etc.
• A helpline facility and scholarship for the persons belonging to transgender community. Etc
• Treatment facilities including hormone therapy.
• Short stay homes for the people belonging to the Transgender community under the aegis of the Social Justice Department in four districts (Thiruvananthapuram, Kottayam, Ernakulam and Kozhikode), etc

NO SPECIFIC INSTANCES POINTED OUT

The Court had observed that, no specific instances regarding the violation of the rights of the transgender community were pointed out in the Writ Petition and court had acknowledged the names of five transgender persons filed through a statement in the subsequent stage. The state government had contended through the counter affidavit that the committees constituted for the benefit of the transgender communities in the District and the State levels are functioning effectively and whenever any complaint or representation from any transgender persons are received on account of the inconvenience faced by them due to the non- supply of food or medicines, police atrocities, students grievances etc. the same will be addressed immediately.

The Court observed that :

"We are of the view that when the State Government has taken enough and more steps to provide various facilities and the authorities are appointed for addressing their issues, it is for members of that community or the NGOs or the members representing the transgender community to approach the said authorities and put forth the rights, they are entitled to. Even though it is contended that the members of the transgender community are being harassed by the police, we are unable to act upon such a contention, since no specific instances are pointed out by the petitioner enabling us to direct the respondents to take appropriate action against the police officials."

And the Court further observed that ,

"it is trite and well settled that even a person approaching a constitutional court with a public interest litigation should provide necessary materials, and facts and figures enabling the constitutional court to rely upon the same and issue appropriate directions to the State and its authorities."

PRIVACY ISSUES AND ALLIED ISSUES

The Court had observed that the identification of the transgender community is an issue involving privacy and it is the duty of the concerned authority to provide the documents once the person in need approaches, for the issuance of the same.

The Court held that :

We are also of the view that the issue with respect to the gender identity of the transgender has been considered by the Apex Court in the judgment in National Legal Services Authority (supra), after taking in depth study with respect to the problems and issues faced by the transgenders all over the world. The Apex Court has also held therein that gender identification becomes a very essential component which is required for enjoying the civil rights of the members of the community. It is only with the recognition that many rights attached to the sexual recognition as 'third gender' would be available to this community more meaningfully ie., the right to own property, right to marry, right to claim a formal identity through a passport and a ration card, a driver's licence, the right to education, employment, health and so on. We are also of the view that there are no reasons for denying any basic human right to a member of the transgender community. But, unless and until such efforts are made by the members of the community to secure their rights through appropriate statutory authority constituted by the State Government due to the peculiar nature of the issue, statutory authorities may find it difficult, especially due to the right to privacy, and right to choice, enjoyed by such persons, which are referable to the right of life and liberty enjoyed by the citizens under Article 21 of the Constitution of India.

The court had equally identified the role of the members of the community, or NGO's and others who are working with the transgender community to identify the issues facd by the transgender community and to direct the same to the authorities concerned.

The petitioner was represented by Advocate Thulasi K.Raj and the State ware represented by the Addl.Advocate General Ranjith Thampan and Senior Government Pleader Advocate Surin George IPE

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