Summer Internship Program 2021

Student’s Name: Shweta Uppal

Enrolment No: 16FLICDDN02058

Batch Name & Year: 2016-21 / 5TH Year

Project Title: Gender Equality

Submitted By: Submitted To:

Shweta Uppal Mr. Sunil Kumar

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TABLE OF CONTENTS

Page no.

CHAPTER 1.................................................................................................... 3-4

Introduction
CHAPTER 2.................................................................................................... 5-8
History of Transgenders in India
CHAPTER 3..................................................................................................... 8-10
Problems faced by transgender in India
CHAPTER 4 .....................................................................................................10-14
Legal protection and recognition of third gender
CHAPTER 5
Present situation of transgender and gender equality………………………….14-25

Conclusion...........................................................................................................25
Bibliography........................................................................................................26

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 CHAPTER 1

INTRODUCTION

Transgender community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis

etc. Eunuchs have existed since 9th century BC. The word has roots in Greek and means "Keeper
of the bed" castrated men were in popular demand to guard women quarters of royal households.
Hinduism, Jainism and Buddhism - and it can be inferred that Vedic culture recognized three
genders. The Vedas (1500 BC - 500 BC) describe individuals as belonging to one of three separate
categories, according to one's nature or prakrti. These are also spelled out in the Kama Sutra ( 4th
century AD) and elsewhere as pumsprakrtistri-prakrti (female-nature), and tritiya-prakrti (third
nature). Various texts suggest that third sex individuals were well known in pre-modern India, and
included male bodied or female-bodied people as well as intersexuals, and that they can often be
recognized from childhood. A third sex is also discussed in ancient Hindu law, medicine,
linguistics and astrology. The foundational work of Hindu law, the Manu Smriti (200 BC - 200
AD) explains the biological origins of the three sexes: "A male child is produced by a greater
quantity of male seed, a female child by the prevalence of the female; if both are equal, a third-sex
child or boy and girl twins are produced; if either are weak or deficient in quantity, a failure of
conception results. Indian linguist Patanjali's work on Sanskrit grammar, the Mahabhaya (200 BC),
states that Sanskrit's three grammatical genders are derived from three natural genders. The earliest
Tamil grammar, the Tolkappiyam (3rd century BC) also refers to hermaphrodites as a third
"neuter" gender (in addition to a feminine category of unmasculine males). In Vedic astrology, the
nine planets are each assigned to one of the three genders; the third gender, tritiya-prakrti, is
associated with Mercury, Saturn and (in particular) Ketu. In the Puranas, there are also references
to three kinds of devas of music and dance: apsaras (female), gandharvas (male) and kinnars
(neuter). Members of the third gender have played a prominent role in Indian culture and were
once treated with great respect. They find mention in the ancient Hindu scriptures and were written
about in the greatest epics Ramayana and Mahabharata. In the great epic Mahabharat‘Shikhandi’,
was a transgender. In medieval India too, they played a prominent role in the royal courts of the
Mughal emperors and some Hindu rulers. Many of them rose to powerful positions. 1 Their fall
from grace started in the 18th Century during the British colonial rule when the Criminal Tribes

1 Dr. Khushboo R. Hotchandani

3
Act of 1871 categorised the entire transgender community as "criminals" who were "addicted" to
committing serious crimes. They were arrested for dressing in women's clothing or dancing or
playing music in public places, and for indulging in gay sex. After Independence, the law was
repealed in 1949, but mistrust of the transgender community has continued. Even today, they
remain socially excluded, living on the fringes of society, in ghettoised communities, harassed by
the police and abused by the public. Most make a living by singing and dancing at weddings or to
celebrate child birth, many have moved to begging and prostitution. In 2003, the Hon`ble High
Court of Madhya Pradesh upheld the order of an Election Tribunal which nullified the election of a
Hijra, Kamala Jaan, to the post of Mayor of Katni, on the ground that it was a seat reserved for
women and that KamlaJaan, being a ‘male’ was not entitled to contest the seat. It is submitted that
all the citizens of India have a right to vote and to contest elections. But in the electoral rolls only
two categories of the sex are mentioned – male and female. This is unfair to the third sex of India
as they are deprived of their statutory right to vote and contest elections.

Assistant Professor (Commerce) N.M.D. College, Gondia,

https://www.academia.edu/33006703/PROBLEMS_OF_TRANSGENDER_IN_INDIA_A_STUDY_FROM_SOCIAL_EXCL
USION_TO_SOCIAL_INCLUSION

4
 CHAPTER 2

EVOLUTION OF TRANSGENDER COMMUNITY IN INDIA

Transgender persons had been part of Indian society for centuries. There was historical evidence
of recognition of “third sex” or persons not confirm to male or female gender in near the
beginning writings of ancient India. The concept of “tritiyaprakriti” or “napumsaka” had been an
integral part of the Hindu mythology, folklore, epic and early Vedic and Puranic literatures. The
term “napumsaka” had been used to denote the absence of procreative ability, presented by
signifying difference from masculine and female markers. Thus, some of the early texts
extensively dealt with issues of sexuality and the idea of third gender which was an established
thought therein. In fact, the Jain text even mentions the concept of “psychological sex”, which
emphasized the psychological make-up of an individual, distinct from their sexual
characteristics. Lord Rama, in the epic Ramayana, was leaving in the forest upon being banished
from the kingdom for 14 years, turns around to his followers and asks all the ‘men and women’
to return to the city. Among his followers, the hijras alone did feel bound by this direction and
decide to stay with him. Impressed with their loyalty, Rama sanctioned them the power to confer
blessings on people on auspicious occasions like child birth and marriage, and also at inaugural
functions which, it was supposed to set the stage for the custom of badhai in which hijras sing,
dance and confer blessings. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offer to
be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war, the
only condition that he made was to spend the last night of his life in marriage. Since no woman
was willing to marry one who was doomed to be killed, Krishna assumes the form of a beautiful
woman called Mohini and married him. The Hijras of Tamil Nadu considered Aravan their
progenitor and call themselves Aravanis.

5
HISTORICAL EVOLUTION OF TRANSGENDER COMMUNITY IN INDIA

Mughal Period

Hijras played a famous role in the royal courts of the Islamic world, particularly in the
Ottoman empires and the Mughal rule in the Medieval India. They rose to well known
positions as political advisors, administrators, generals as well as guardians of the harems. Hijras
were consider clever, trustworthy and fiercely loyal and had free access to all spaces and sections
of population, thereby playing a crucial role in the politics of empire building in the Mughal era.
The Hijras also occupied high positions in the Islamic religious institutions, especially in
guarding the holy places of Mecca and Medina the person of trust, they were able to influence
state decisions and also received large amount of money to have been closest to kings and
queens. Thus hijra frequently state the role of their status in that period.

British Period

In the beginning of the British period in Indian subcontinent hijra used to accept protections and
benefits by some Indian states through entry into the hijra community. Furthermore, the benefits
incorporated the provision of land, rights of food and smaller amount of money from agricultural
households in exact area which were ultimately removed through British legislation as because
the land was not inherited through blood relation

1. preparation and preservation of a register of the names and places of residence of all
eunuchs residing in the area under his charge and who are reasonably suspected of kidnapping or
emasculating boys or of committing unnatural offences or any other offences or abetting the
commission of such offences.

2. Piling objections by aggrieved eunuchs to the inclusion of his name in the register and for
removal of his name from the register of reasons to be recorded in writing.

6
CRIMINALIZATION UNDER THE COLONIAL RULE

Through the onset of colonial rule from the 18th century onwards, the situation changed
drastically. Accounts of early European travelers showed that they were repulsed by the sight of
Hijras and could not comprehend why they were given so much respect in the royal courts and
other institutions. In the second half of the 19th century, the British colonial administration
vigorously sought to criminalize the hijra community and to deny them the civil rights. Hijras
were considered to be separate caste or tribe in different parts of India by the colonial
administration. The Criminal Tribes Act, 1871, this included all hijra who were concerned in
kidnapping and castrating children and dressed like women to dance in public places. The
punishment for such activities was up to two years imprisonment and a fine or both. This pre-
partition history influences the vulnerable circumstances of hijra in this contemporary world

CRIMINALIZATION AND MARGINALIZATION DURING POST-

INDEPENDENCEERA

However the Act was repealed in 1952 and its legacy continues and many local laws reflected
the prejudicial attitudes against certain tribes, including against Hijras. Recently, the Karnataka
Police Act was amended in 2012 to “provide for registration and surveillance of Hijras who
indulged in kidnapping of children, unnatural offences and offences of this nature” (Section
36A), in a similar vein to the Criminal Tribes Act,1871, According to Section 36A, Karnataka
Police Act, 1964, Power to regulate eunuchs

CONTEMPORARY PERIOD

The transgender in India is possibly the most well known and popular third type of sex in the
modern world. The Supreme Court declared for transgender as third gender. The third genders in
India have emerged as a strong faction in the LGBT rights. In the contemporary time the
Government of India introduced so many welfare policy and schemes such as, census,
documentation, issuing of the citizenship ID Cards, issuing passports, social-economical

7
development and constitutional safeguards for the transgender people 2. The Mahatma Gandhi
National Rural Employment Guarantee Act (MGNREGA) is a major initiative of the 11thFive

Year Plan period which brought employment opportunities for transgender people. The Ministry
of Housing and Urban Poverty Alleviation is the National Urban Livelihood Mission and
Healthcare facilities. The social, economic, political transformation, Housing, legal measures,
Police Reforms, legal and constitutional safeguards to prevent human rights violations of the
transgender community and institutional mechanisms to address specific concerns of transgender
people.

Through, the transgender community was given high position in mughal period and facing many
problems obstacles in British colonial rules. But now to safe guard the transgender communities
there are many policy and schemes implemented by the government. Through this social
economical status of the transgender community will be developed. The government should be
eradicated the stigma, discrimination and human rights violation for the betterment of
transgender community. If all this are brought in their day to day life, it would enlarge the
growth of transgender community in India.

CHAPTER 3

PROBLEMS OF TRANSGENDERS

The transgender fall under the category of LGBT group (Lesbian, Gay, Bisexual
andTransgender). They belong to the marginalized group of the society which faces legal,
social,cultural and economic difficulties.

The problems faced by the Transgender community in India includes -

1. Discrimination- Discrimination is the major problem of Transgender. They

arediscriminated in terms of education, employment, entertainment, justice etc.

2TG Issue Brief, UNDP, VC. Dec. 2010 titled “Hijras/Transgender

women in India:HIV, humanrights and social exclusion”
https://www.academia.edu/33006703/PROBLEMS_OF_TRANSGENDER_IN_INDIA_A_STUDY_FROM_SOCIAL_EXCL
USION_TO_SOCIAL_INCLUSION

8
2. Disrespect- They are disrespected in each and every aspect of life except in few cases
like after the birth of a child for their blessings or to bless the newly wedded couple.
3. Downtrodden- These people are treated badly or oppressed by people in power. They
are prone to struggle for social justice because of their identity as Transgender.

4. Child Nabbing- This community always searches for those babies/ infants/ children who
are born with this feature of Transgender. Once they come to know, they try to nab the
child from their parents.
5. Prostitution- They are forced to enter the profession of prostitutions by their
community,friends or relatives. Even, in some cases, it is seen that their parents are
involved in it.
6. Forced to leave parental home-Once their identity is identified, they are forced and
pressurize to leave the parental home by the society as they can’t be a part and parcel of
normal community and class.
7. Unwanted attention-People give unwanted attention to the Transgender in public. They
try to create the scene by insulting, punishing, abusing or cursing them.
8. Rejection of entry-They are rejected to get enter in religious places, public places like
hotels, restaurants, theaters, parks etc.
9. Rape and verbal and physical abuse-This is the most common people Transgender
people face. They are prone to face rape followed by physical and verbal abuse.
10. Lack of educational facilities- Like normal people, they are not entitled to take
education in schools and colleges. Even in terms of education, they are treated
differently.
11. STI and HIV AIDS problems: The term „MSM‟ stands for Men who have sex with
Men. Because of this, Transgender are likely to have problems like STI and HIVAIDS.
Most of the Transgender belongs to lower socioeconomic status and have low literacy
level. It seeks to have improper health care.
12. Human trafficking-Transgender belongs to the most neglected group. That’s why, they
are prone to face the problem of human trafficking also.

9
 13. Social Exclusion- The major problem in the whole process is that they are socially
excluded from the society. They are excluded from participating in social, cultural and
economic life. In brief, they are excluded from –

• Economy, employment and livelihood opportunities

• Excluded from society and family

• Lack of protection from violence

• Restricted access to education, health care and personal care

• Limited access to public spaces

•Limited access to collectivization

•Rights of Citizenship

•Excluded from decision-making

•Lack of social security345

CHAPTER 4

LEGAL PROTECTION AND RECOGNITION OF THIRD GENDER

A JOURNEY FROM SOCIAL EXCLUSION TO INCLUSION

The journey of Transgender in a country like India is very struggling and sad. Though, apart
from facing all problems, they are creating their own way and law and order are helping them in
developing their community. The following points highlights the struggling jour ney of
Transgender to become an inclusion part of India -

3 Asmy V.S. Shinu, Nagaraj Dr. P (2015),“Preliminary problems faced

in educating the thirdgender community”,
Asia Pacific Journal of Research Vol: I. Issue XXVII, May 2015, Pp. 20-24
4 Problems Faced by Transgender people in India, available at: https://www.quora.com/What-are-the-
problemsfaced-by-transgender-people-in-India(accessed 4th April 2017)
5 Transgender Rights in India, available at: http://iasscore.in/national-issues/transgender-rights-in-india(accessed
on 6th April 2017)

10
CONSTITUTIONAL PROVISIONS

India is a country where we have well-established framework of Fundamental Rights

embeddedin the constitution. From the point of view of Transgender, just like other two genders,
they are entitled to the four important provisions of Fundamental Rights. Their Fundamental
Rights are –

1. Article 14 – Which states that the State shall not deny any person equality before the law or
the equal protection of laws within the territories of the State.

2. Article 15 – The State shall not discriminate against any citizen on the grounds of race,caste,
religion, sex, place of birth or any of them.

3. Article 19 – All citizens shall have rights of- Freedom of speech and expression;

Freedom of assemble peaceably and without arms;

Freedom to reside and settle in any part of the territory of India;

Freedom to practice any profession or to carry on any occupation, trade or business

4. Article 21 – Right to his life or personal liberty.6

12th FIVE YEAR PLAN AND TRANSGENDER

The Twelfth Five Year Plan (2012-2017)

Proposed empowerment of the Third Gender by providing them education, housing, access to
healthcare services, employment, skill development and financial assistance. In addition to this,
it is also proposed that separate column must be incorporated in all government and non-
government records for the third gender. It will enable the number of Transgender in India. The
Ministry of Social Justice and Empowerment along with Ministry of Statistics and Programme
6 Constitution of india

11
Implementation will map their Socio- economic status to create a better environment for them by
improving their living standards.

AT STATE LEVEL

At State level, the States of Tamil Nadu and Karnataka have implemented the most progressive
and developmental policies for the Transgender in India. As per the recommendations of C.S.
DwarkanathBackward Classes Commission of 2010, the Transgender must be included in the
category of Backward Class to enjoy government benefits. Recently, the State of Tamil Nadu

appointed its first Transgender Police Officer PrithikaYashini to ensure employment to the third
gender. In Tamil Nadu, due to the constant efforts of Transgender community leaders and
activists, Tamil Nadu Transgender Welfare Board was formed to protect the ends and rights of
Transgender including housing, employment education etc.

AT NATIONAL LEVEL

The report of Peoples‟ Union for Civil Liberties (PUCL) recommends that “Civil rights under
law such as the right to get a passport, ration card, make a will, inherit property and adopting
children must be available to all regardless of change in their gender.

SUPREME COURT JUDGEMENT

The Supreme Court has directed Central and State Governments to grant legal recognition of
gender identity whether it is a male, female or third gender. Apart from this, they are also
directed to legally recognize for people who are transitioning within male/female binary. Proper
health and sanitary facilities to Transgender must be ensured by Centre and State. They are asked
to provide various welfare schemes to treat the community as socially and economically
backward classes.

TRANSGENDER COMMUNITY AND HIGHER EDUCATIONAL INSTITUTIONS

On 29th October 2014, the University Grant Commission (UGC) issued a circular to all the Vice
Chancellors of the Universities requesting them to include a column for Transgender Community
in all applications forms. The circular also includes the directions related to the affirmatives

12
actions taken by the Universities to ensure that the Transgender students gets acclimatized
without facing humiliation, fear, stigma or shame. The circulars also included the clauses like
creation of Transgender friendly infrastructure, organization of sensitization programmes and
research activities should be encouraged on them to bring the new issues and their solutions. For
the MBA Maharashtra Common Entrance Test - 2017, Out of 363413 applicants, 9000applicants
belongs to other gender means Third Gender. The column of other than male and female were
incorporated in the form specifically7

RIGHTS OF TRANSGENDER PERSONS BILL, 2014

On 24th April 2016, a private member’s bill entitled “The Rights of Transgender Persons Bills,
2014” was passed by the Rajya Sabha and introduced in the Lok Sabha. The Bill deals with the
different aspects like Social inclusion of Transgender, their rights and entitlements, financial and
legal aids, education and skill development and prevention of abuse, violence and exploitation of
Transgender.

NEED FOR REFORMS

There is an urgent need to reform the third gender community of India. Reforms are required to
ensure that the third gender of India is properly justified and is able to live their life freely. The
following suggestions would like to suggest for their betterment –

1. Inclusive approach for Transgender must be planned and adopted by the Government and
Society. Though, policies have been framed but are poorly implemented

2. Focused approach should be there to provide a protective shields to their problems

3. Legal and the law enforcement systems need to be empowered and sensitized on the issues of
Transgender community.

4. Criminal and disciplinary action must be taken against the people who commits violence
against Transgender.
7 Athreye Viji (2015), “The life of Transgender in India” available at:
http://www.mapsofindia.com/my-india/government/the-life-of-transgenders(accessed on 6thApril 2017

13
5. Strict action must be taken against parents who neglect, abuse or leave their child because of
their biological difference.

6. Provision of free legal aid must be ensured for the Transgender community at ground level.

7. School and colleges need to play a supportive and encouraging role in providing education
and value-system to Transgender.

8. Provision of social entitlement must be ensured.

9. Establishment of helpline for career planning and guidance, career opportunities and online
placement system must be empowered.

10. Liberal credit facilities and financial assistance must be ensured to start up their career as
an entrepreneur or businessman.

11. Separate policies related to health care must be framed and communicated in all private
and public hospitals and clinics.

12. Awareness programmes must be organized at mass level to outreach public and this
community.

13. A comprehensive sex-education program should be incorporated in school curriculum

and college syllabus to aware students at ground level.8

CHAPTER 5

PRESENT SITUATION OF TRANSGENDER

EDUCATIONAL STATUS- No formal education for transgender is popular in Indian context.

They are deprived from family and school environment, transgender discontinue their education
and risk their future career opportunities. A close analysis of various reports and discussion with
community and stakeholders suggest that transgender are most uneducated or undereducated,
become reluctant to continue schooling. The average qualification is secondary (Matric) or senior

8 Tiwary Avinash (2016), YKA Exclusive: Are Workplaces Welcoming Of Transgender People InIndia? Available
at:https://www.youthkiawaaz.com/2016/07/trans-people-in-indian-workplace/(accessed on 7th April 2017)

14
secondary level. The enrolment is significantly low and dropout rate at the primary and
secondary level is still very high. They are hardly educated as they are nor accepted by the
society and therefore do not receive proper schooling. Even if they are enrolled in an educational
institute, they face harassment and are bullied every day and are asked to leave the school or they
drop out on their own. It is because of this that they take up begging and sex work. It is
mandatory for the Government to provide inclusive education for transgender students and
provide adult education to them. Beside these some transgender on working reputed place,
ManabiBandyopadhyay working as a principal to a government college in West Bengal and
AmrutaAlpeshSoni as the advocacy officer for the states of Punjab, Haryana and Chhattisgarh
for the National AIDS Control Project. In India, some states work for the betterment of
transgender. Tamil Nadu has been the

only state which has successfully pioneered transgender inclusion by introducing the transgender
(aravani, as they are locally called) welfare policy. According to the policy, transgenders can
access free Male-to-Female Sex Reassignment Surgery (SRS) in the Government Hospital, a free
housing program, various citizenship documents, admission in government colleges with full
scholarship for higher studies, and alternative sources of livelihood through formation of self-
help groups and initiating income generation programmes (IGP). It was also the first state to
form a Transgender Welfare Board in 2008 with representatives from the transgender
community. In
March 2009, Tamil Nadu government set up a telephone helpline called “Manasu” for
transgenders, an initiative which was responsible for the formation of India’s first helpline for the
LGBTQIA community in 2011 at Madurai. The Chhattisgarh government is also making efforts
to empower the transgender community by drafting an action plan for the welfare of around 3000
eunuchs in the state. Tripura government which announced in July an allowance of Rupees 500
per month to the transgender people in the state to ensure their financial independence. The West
Bengal government is not far behind. On October 1st, 2015 the government has requested the
Kolkata Police to recruit transgenders in the Civic Police Volunteer Force (CPVF) to end the
stigma and discrimination against the community.

India has achieved significant growth and development. It has improved on crucial human
development indices such as levels of literacy, education and health. There are indications,

15
however, that not all disadvantaged groups have shared equally the benefits of the growth
process. Among these, the transgender community, one of the marginalized and vulnerable
communities in the country is seriously lagging behind on human development indices including
education (Rajesh
&Naved 2013). What is appalling is that despite affirmative action (reservation policies, Right to
Education, etc.) the disparities remain substantial among the transgender community in India.
Majority of the population is uneducated or undereducated thereby excluding them from
participating in social, cultural, political and economic activities. Along with teachers’ apathy
towards transgender community, exclusion from society, poverty, continued discrimination,
violence are some of the important factors which can be attributed to the poor participation of
transgender persons in educational activities. The life of transgender people is a daily battle as
there is no acceptance anywhere and they are ostracized from the society and also ridiculed.
They face high levels of stigma in almost every sphere of their life such as health,
schools/colleges, employment, social schemes and entitlement. Extreme social exclusion
diminishes self-esteem and sense of social responsibility. The community needs to be included in
the mainstream development program of the country and be protected from all forms of abuse
and exploitation. Transgender is not a term limited to persons whose genitals are intermixed but
it is a blanket term of people whose gender expression, identity or behaviour differs from the
norms expected from their birth sex. Various transgender identities fall under this category
including transgender male, transgender female, male-to-female (MTF) and female to
male(FTM). It also includes cross-dressers (those who wear clothes of the other), gender queer
people (they feel they belonged to either both genders or neither gender) and transsexuals. In
India, there are a wide range of transgender related identities which includes the Hijras,
Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis. In the past, they were treated with great
respect. ‘Hijra’ is a Persian word translated as eunuch which is used in common parlance for
transgender community in India. ‘Aravani’ is a term used for male-to-female transgender who
undergo genital modification through SRS (Sex Reassignment Surgery) or perform Nirwaan
which is a traditional mode of castration. Kothi is used for those who adopt a feminine role in
same sex relationships, but do not live in communes as Aravanis. Jogtas/ Jogappas found in
Maharashtra and Karnataka are male to female transgender who devote themselves to the service
of a particular god. Shiv Shakthis found in Andhra Pradesh are males who are considered

16
married to gods particularly Lord Shiva. They usually work as spiritual healers or astrologers.
Transgender people are individuals of any age or sex whose appearance, personal characteristics,
or behaviours differ from stereotypes about how men and women are “supposed” to be
(Satashivam 2012). Transgender people have existed in every culture, race, and class since the
story of human life has been recorded. Only the term “transgender” and the medical technology
available to transsexual people are new. The Literal meaning of transgender is “beyond gender.”
Transgender and trans-identified are umbrella terms to represent a wide range of gender
identities and expressions (wikipedia). A transgender or trans-identified individual is a person
whose gender identity, outward appearance or gender expression transcend culturally defined
categories of gender. Transgender fall under the LGBT group (lesbian, gay, bisexual and
transgender) (Athreye). According to Indian Census 2011, there are around 4.9 lakh transgender
in the country. Census data also reveals that this community has low literacy levels, just 46 per
cent transgenders are literate, compared to 74 per cent literacy in the general population. This
community comes under the category “disadvantage group” defined by the Right to Education
Act (Indian Express 2014). It means these kids will be eligible for 25 per cent reservation under
the economically weaker section (EWS) and disadvantaged student’s category for admission.
‘Transgender’ does not include sexual orientation or physical sex characteristics, but is in fact a
less clinical term which pertains to gender identity and gender expression. Thus transgender
people encompass those people whose identity and behaviour do not adhere to the stereotypical
gender norms.9

Transgender Persons (Protection Of The Rights) Bill, 2019

India presently does not have a law addressing the rights of the transgender community (TG
Community). In spite of the trauma and agony faced everyday by transgender persons (TG
Person) sometimes on basic necessities such as to receive education, medical care and
employment, little has been done over the years to alleviate their struggles.

The Supreme Court considered it fit to interfere and in 2014 (in National Legal Services
Authority v. Union of India and Others (Judgment) observed that: –

9Athreye Viji (2015), “The life of Transgender in India” available at:

http://www.mapsofindia.com/my-india/government/the-life-of-transgenders(accessed on 6thApril 2017)

17
(i) TG Community has a right to be treated as ‘third gender’; and

(ii) The Central & State Governments (Government) should frame welfare schemes, extend
reservations, take measures to provide medical care to the TG Community etc.

The Judgment received widespread praise and was hailed by the media. To give effect to this
decision and address the previous lacuna, previously different laws were proposed to provide for
the betterment of the TG Community, however, none of them came to fruition.

The Government has now again attempted to fill this void by the Transgender Persons
(Protection of Rights) Bill, 2019 (Bill). The Bill, though is intended to benefit the TG
Community, is being heavily criticized for its fundamental failure to consider existing ground
realities.

• Protection from discrimination. There is now a specific prohibition against discrimination

of a TG Person. A TG Person cannot be discriminated against in the matters of education,
employment, healthcare, right to purchase / reside / occupy property, right to movement,

opportunity to stand for public or private office, access to Government or private

establishment etc.

While this prohibition seems basic and it can be said that the same is already guaranteed under
the Constitution of India, a specific provision will act as a deterrent for any person from
discriminating against TG Persons.

Having said so, no penalty has been prescribed for a person who discriminates against a TG
Person. The TG Person is also not entitled to any monetary compensation if such person faces
discrimination. In the absence of any relief under the Bill, it appears that the protection sought to
be given to TG Persons will be, in reality, quite ineffective.

18
 • Recognition of identity. A TG Person can make an application to receive a certificate of
identity (Certificate). This Certificate can later be modified as well – if the TG Person
changes gender as a male or female.

This process of applying for a Certificateand following of a certain procedure could be said to be
contrary to the spirit of the Judgment – which identifies privacy, self-identity and personal
integrity as fundamental rights of TG Persons. The Judgment specifically states that self-
determination of gender is an integral part of personal autonomy and falls within the realm of
personal liberty guaranteed under the Constitution of India. The Bill does state that a TG Person
will have a right to self-perceived gender identity. It is, however, unclear as to what this right
entails.

The Bill falls short in certain other aspects also while providing the TG Persons a right of
recognition of identity. As certain examples, the Bill does not address the following aspects: –

• What procedure is to be followed / checks (medical or otherwise) need to be undertaken

before issuance of a Certificate?
• Is there any requirement to provide reasons while refusing a Certificate?
• Can a TG Person appeal if the Certificate is refused?
• What is the procedure to rectify defects in a Certificate?

• Residential right. TG Persons have the right to reside in the household with their parents /
immediate family members and to use household facilities without discrimination.
However, Courts can place TG Persons in 'rehabilitation centers’ if: – •
family persons are unable to take care of the TG Person; or
• It is in the interest of a transgender child.

The TG Community views the above provisions as particularly regressive 5 considering the
sociocultural milieu in Indian society. It is commonly known that TG Persons face multiple
challenges with their biological families – such as the pressure to conform to the sex they were
born with, being outcasted and even violence. This provision does not address these issues but
merely requires the Courts to send them to rehabilitation centers. One is compelled to think if
segregation and relocation to rehabilitation centers is really the answer to this issue.

19
 • Medical care. The Government is required to take steps for providing health care
facilities to TG Persons. Such steps include – providing medical care facility, facilitating
access in hospitals, providing hormonal therapy counseling etc.
• However, the Bill does not indicate any timeline for taking such measures. The Judgment
was passed in early 2014 and India still does not have a law providing for the welfare of
the TG Community. The TG Community alleges that the Bill only superficially touches
upon the concept of affirmative actions and provides no real mechanism to improve the
lives of TG Persons.6So unless there is a definite plan with concrete steps to implement
such measures, this may as well only be on paper i.e. a theoretical right.
• Reservation. The Judgment required the Government to treat the TG Community as
socially & educationally backward classes and extend them reservations in admission in
educational institutions & for public appointments. The Bill is silent on this issue
considering the already existing challenges posed by ever-expanding list of sections of
society which are demanding, and also getting, reservation quotas. Given the sensitivity
and perennial controversy around reservations in India, it is unlikely that the TG
Community will be considered in that category any time soon.

• Applicability to private entities. Private entities (such as companies, body corporates,

firms, associations of individuals, cooperative societies etc.) are specifically required to –

not discriminate against TG Persons, provide them certain prescribed facilities, and
designate a compliance officer to deal with complaints in relation to violation of the Bill
when it becomes law.10

However, again, there are no penal consequences in the event such private entities do not
comply with these provisions.

• Penalties. Forcing TG Persons to indulge in bonded labour, denying them the right of
passage, forcing them to leave household / village, harming them or physical / sexual
abuse etc. are some of the specifically recognized offences against TG Persons. These
offences are punishable with imprisonment between 6 months & 2 years and fine.

10 Michelraj M. Historical evolution of transgender community in India. Asian Rev Soc Sci 2015;4:17-9

20
 This punishment has raised eyebrows in the TG Community, more particularly, a 2-year
imprisonment for sexual abuse against a TG Person – when a higher punishment is
prescribed for the same offence against male or female.

• Reservation. The Judgment required the Government to treat the TG Community as

socially & educationally backward classes and extend them reservations in admission in
educational institutions & for public appointments. The Bill is silent on this issue
considering the already existing challenges posed by ever-expanding list of sections of
society which are demanding, and also getting, reservation quotas. Given the sensitivity
and perennial controversy around reservations in India, it is unlikely that the TG
Community will be considered in that category any time soon.11

• Confidentiality. Confidentiality remains conspicuous by its absence. There is no

requirement on any person receiving information for any reason (such as an application
for issuance of Certificate, the procedure followed on receipt of an application etc.) not to
further disclose such information. However, this aspect may be addressed by India’s

proposed data protection regime (namely the Personal Data Protection Bill, 2018) which
classifies transgender & intersex status as ‘sensitive personal data’.

• Other issues. The Bill presently does not address issues pertaining to marriage (either
before issuance of Certificate or in case of change in gender after issuance of the
Certificate), inheritance, parenthood and adoption. Given that these are basic human
rights and that the Judgment recognizes the fundamental rights of TG Community,
abstaining from addressing these issues seems to be a glaring gap with respect to the
rights and welfare of the TG Community.

11 Chettiar A. Problems faced by Hijras (male to female transgenders) in Mumbai with

reference to their health and harassment by the police. Int J Soc Sci Humanity
2015;5:753-9

21
 Journey from Marginal to Mainstream

Within the Third Gender population, one can come across many stories of grit and
determination where a transgender did not allow societal pressure decide their fate. Here,
are a few exceptional examples of transgender individuals who have written their own
success stories with the help of their endowment, hard work, dedication and
perseverance:

• KalkiSubramaniam: With two masters’ degrees, Kalki is a social activist and a

journalist.
She also made her debut as an actress in the movie Narthaki-Life of a Transgender
Woman. Kali has also founded the Sahodari foundation which supports the transgender
community.
• Padmini Prakash: Padmini is a trained Kathak dancer and also a vocal artist. She was
awarded the title of Miss Transgender of India. Padmini acts in TV serials and is a
popular face on a news channel.
• Madhu Bai Kinnar: Madhu was disowned by her parents and expelled from home.
However, destiny had other things in store for her. She became the first citizen of Raigarh
in Chattisgarh. She earns her living as a folk dance performer.
• Bharathi: Again disowned by parents, Bharathi had a tough life after being ostracised by
the society. But sheer will power and grit saw her change the course of her life. She
baptized to Christianity, completed a bachelor’s degree in Theology, and today she is a
pastor at the Evangelist church of India, and conducts weddings.
• ManabiBandyopadhyay: Manabi is the author of a bestseller novel, Endless Bondage,
based on hijras (eunuchs). She is an associate professor in Bengali at Vivekananda
SatobarshikiMahavidyalaya and is soon slated to take charge as the principal of
Krishnanagar Women’s College.12

12 Indian penal code,1860

22
Landmark Cases On Third Gender Right AND DECRIMINALISATION OF
SECTION377

Section 377 OF The Indian Penal Code

Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with 1[imprisonment for life], or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.

Section 377 of the Indian Penal Code is a section of theIndian Penal Codeintroduced in 1861
during theBritish rule of India. Modelled on theBuggery Act of 1533, it makes sexual activities
"against the order of nature" illegal. On 6 September 2018, theSupreme Court of Indiaruled that
the application of Section 377 to consensualhomosexual sexbetween adults was unconstitutional,
"irrational, indefensible and manifestly arbitrary", but that Section 377 remains in force relating
to sex withminors,non-consensualsexual acts, andbestiality.

Portions of the section were first struck down as unconstitutional with respect to gay sex by the
Delhi High Court in July 2009. That judgement was overturned by the Supreme Court of India
(SC) on 11 December 2013 inSuresh Kumar Koushal vs. Naz Foundation. The Court held that

amending or repealing section 377 should be a matter left to Parliament, not the judiciary.On 6
February 2016, a three-member bench of the Court reviewed curative petitions submitted by
theNaz Foundationand others, and decided that they would be reviewed by a five-member
constitutional bench.

On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under
the Constitution in the landmarkPuttuswamyjudgement. The Court also called for equality and
condemned discrimination, stated that the protection of sexual orientation lies at the core of the
fundamental rights and that the rights of the LGBT population are real and founded on

23
constitutional doctrine.This judgement was believed to imply the unconstitutionality of section
377.

In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation
judgment. On 6 September 2018, the Court ruled unanimously inNavtej Singh Joharv. Union of
Indiathat Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct
between adults of the same sex".The judgment was given by a five judges bench comprising the
then Chief Justice of India DipakMisra, Justices R F Nariman, D Y Chandrachud, A M
Khanwilkar and Indu Malhotra.13

1- National Legal Services Authority v Union of India and Others (Writ Petition No.
400of 2012 with Writ Petition No. 604 of 2013) is a landmark decision by theSupreme
Courtof India, which declaredtransgenderpeople to be a 'third gender', affirmed that
thefundamental rightsgranted under theConstitution of Indiawill be equally applicable to
transgender people, and gave them the right to self-identification of their gender as male,
female or third-gender. This judgement is a major step towards gender equality in India.
Moreover, the court also held that because transgender people were treated as

socially and economically backward classes, they will be grantedreservationsin

admissions to educational institutions and jobs.14
2- Navtej Singh Johar&Ors. v. Union of India thr. Secretary Ministry of Law andJustice
is a landmark decision of theSupreme Court of Indiain 2018 that decriminalised all
consensual sex among adults in private, including homosexual sex

13 Radhakrishnan KS. In the supreme court of India Civil original jurisdiction Writ petition (civil) No. 400 of
2012 National legal services authority. Judgment 2013. Available from:
http://www.prsindia.org/uploads/media/Transgender/Transgender%20rights%20case%20(NALSA%20 vs.
%20UoI).pdf. [Last accessed 2017 Oct 30]
14 Available from: https://www.en.wikipedia.org/wiki/National_Legal_Services_Authority_v._Union_of_India.
[Last accessed on 2017 Oct 28

24
 The court was asked to determine the constitutionality ofSection 377 of the Indian
PenalCode, acolonial-eralaw which, among other things, criminalised homosexual acts as
an "unnatural offence". While the statute criminalises allanal sexandoral sex, including
between opposite-sex couples, it largely affected same-sex relationships.On 6 September
2018, the court unanimously declared the law unconstitutional "in so far as it criminalises
consensual sexual conduct between adults of the same sex". The verdict was hailed as a
landmark decision forLGBT rights in India, with campaigners waiting outside the court
cheering after the verdict was pronounced.

Portions of Section 377 relating to sex withminors,non-consensualsexual acts such

asrape, andbestialityremain in force

3- Vishaka&ors. v/s state of Rajasthan is a case which deals with the evil of Sexual
Harassment of a women at her workplace. It is a landmark judgment case in the history of
sexual harassment which as being decide by Supreme Court. Sexual Harassment means
an uninvited/unwelcome sexual favor or sexual gestures from one gender towards the
other gender. It makes the person feel humiliated, offended and insulted to whom it is
been done 4- The Court held in NALSA that all the state's laws and policies must let
individuals to decide their own gender and record this as “male”, “female” or “third
gender”. Another important judgment on sex discrimination was CharuKhurana and
Ors v. Union of India andOrs15

CONCLUSION
Each being in this Universe is indeed unique, and an integral part of Nature. It
would thus be wrong to judge and discriminate people who may be different from
the stereotype, which again is man-made. It is time that India realised that every
individual in this country has equal rights and privileges, and follow the policy of
“live and let live.”

15 Radhakrishnan KS. In the supreme court of India Civil original jurisdiction Writ petition (civil) No. 400 of
2012 National legal services authority. Judgment 2013. Available from:
http://www.prsindia.org/uploads/media/Transgender/Transgender%20rights%20case%20(NALSA%20 vs.
%20UoI).pdf. [Last accessed 2017 Oct 30]

25
“The biggest lacuna in the system is that nobody knows the real definition of a
transgender. Sensitisation will not help until people are ready to accept change and
acceptance can come only through education.” Each being in this Universe is indeed
unique, and an integral part of Nature. It would thus be wrong to judge and discriminate
people who may be different from the stereotype, which again is man-made. It is time
that India realised that every individual in this country has equal rights and privileges,
and follow the policy of “live and let live.” Thus the first and the foremost right
transgender are deserving of is the Right to Equality under Article 14. Article 15 speaks
about the prohibition of discrimination on the ground of religion, caste, sex or place of
birth. Article 21, ensures right to privacy and personal dignity to all the citizens and
article 21 (A) ensures education is a fundamental right to every Indian. The constitution
provides for the fundamental rights to the equality and tolerates no discrimination on the
grounds of sex, caste, creed or religion. The constitution also guarantees political rights
and other benefits to every citizen. Despite such laws in the constitution of India, the
other sex (transgender) continues to be ostracized. Transgender people faced
discrimination and harassmentat family, school and community forces them to move to
the other places. The nature of the harassment includes verbal, physical and sexual abuse
which has serious impact on the mental health as well. In a democratic country like India
Transgender has no access to the social and political rights. They are not the part of any
welfare scheme. Keeping in view the above findings it can be concluded that there is an
immense need to intervene at individual, community and policy level to safeguard the
rights of transgender.

Through, the transgender community was given high position in mughal period and
facing many problems obstacles in British colonial rules. But now to safe guard the
transgender communities there are many policy and schemes implemented by the
government. Through this social economical status of the transgender community will be
developed. The government should be eradicated the stigma, discrimination and human
rights violation for the betterment of transgender community. If all this are brought in
their day to day life, it would enlarge the growth of transgender community in India.

26
 Bibliography

Books referred-
• Constitution of india
• Transgender Challenges in India by S. Nanjundaswamy M.R
GangadharWEBSITE REFFERED-

https://en.wikipedia.org/wiki/National_Legal_Services_Authority_v._Union_of_Indiahttps://w

ww.thebetterindia.com/topics/transgender/https://en.wikipedia.org/wiki/Section_377_of_the_In

dian_Penal_Code

https://www.youthkiawaaz.com/2017/12/t-for-transgender-a-life-of-struggle-

foridentityequalitydignityacceptance-and-love-

2/https://en.wikipedia.org/wiki/Hijra_(South_Asia)https://www.ippf.org/stories/respect-and-

acceptance-transgender-people-india

https://www.indiatoday.in/education-today/gk-current-affairs/story/list-of-transgenders-

firstswho-made-it-big-in-their-fields-1276415-2018-07-03https://iasscore.in/national-

issues/transgender-rights-in-indiahttps://www.hrw.org/news/2019/07/23/india-transgender-bill-

raises-rights-concerns

Summer Internship Program 2021

27
 Student’s Name: Shweta Uppal

Enrolment No: 16FLICDDN02058

Project Title: Case analysis of the Dehradun

Valley case

Submitted By: Submitted To:

Shweta Uppal Mr. Sunil Kumar

Case Study
Citation

Supreme Court of India

Rural Litigation and Entitlement Kendra &Ors. Vs. State of Uttar Pradesh &Ors.

28
 AIR 1987 SC 359, 1986 (2) SCALE 1083, 35ttra1986 Supp (1) SCC 517, 1987 1 SCR 641, 1987
(1) UJ 132 SC

Date of judgement: 13th August, 1988

Bench: Bhagwati, P.N. Sen, AmarendraNath (J) MisraRangnath

Facts of the case

In 1983, the Rural Litigation and Entitlement Kendra sent a letter of complaint to the Supreme
Court against progressive mining which affected the Mussoorie tree and forest cover and
accelerated soil erosions resulting in landslides and blockage of ground water. The court treated
the letter as a writ petition under article 32. More than 100 mines joined this and the litigation
became complex. The Supreme Court conducted a review of the need for mining operations and
provided for funding and administrative oversight of the reforestation of the region. It was
contended by the mining operators that the case should be dismissed by the court and the issue
should be left to the administrative authorities under the Environment Protection. The counsel for
the miners relied on the following statement of a 1986 opinion issued in the case: It is for the
government and the nation and not for the court to decide whether the deposits should be
exploited at the cost of ecology and the environmental consideration or the industrial requirement
should be otherwise satisfied.

Issues

1. Whether such activity be allowed to operate in such area.

2. Whether the lease renewal is affected by the new act.
3. Whether the mining activity was too crucial to be completely stopped.

Decision

The court held -

1. Closure of all mines

2. Reforestation of valley
3. Priority to the lessees and the workers left unemployed from this order in some other area.

29
 Reasoning behind the rulings

 In the Dehradun Valley Litigation case, the Central Government had become concerned about
the destructive mining operations in the Valley at the same time when the Supreme Court took up
the issue. In 1983, the Government of India appointed a Working Group to inspect the limestone
quarries in the Dehradun- Mussoorie area. The same individual, D.N. Bhargava, headed both the
government’s Working Group and the court’s committee came to similar conclusions as to the
harmful effect of the mines on the environment. The Working Group also prepared reports for the
court on the few mining operations, which were allowed to remain open.
 During the course of the litigation, in 1986, Parliament enacted the Environment Protection Act.
The mining operators contended that as because the Act provides procedures to deal with the
situation at issue, the court should dismiss the case and leave the issue to administrative
authorities under the Environment Protection Act. The counsel for the miners relied on the
following statement of a 1986opinion issued in the case:
It is for the Government and the Nation and not for the court to decide whether the deposits
should be exploited at the cost of ecology and environmental consideration or the industrial
requirement should be otherwise satisfied.
The Court rejected the miners’ arguments the ground that the litigation had already commenced
and significant orders had been issued by the court before the adoption of the Environment
Protection Act.
 There was no conflict in the opinions of the court and the Central Government in the instant
case. After the Courts’ ruling, the centre designated the Valley as an ecologically fragile area
under the Environment protection Act. In addition, it appointed a Doon Valley Board, under the
chairmanship of the Minister for Environment and Forests, which was charged with conserving
and restoring degraded areas of the Valley.
 The Supreme Court concluded that mining in reserved forests in the Dehradun valley violated the
Forest Conservation Act. However, the Forest Conservation
Act only prohibits non-forest activities on forest lands that do not have the approval of the
Central Government.
 In addition to ecological integrity and national interests, the Supreme Court was also concerned
with the welfare of mine operators and labourers left unemployed by closure of the Dehradun

30
Valley operations.
The Court issued the following directions to try to mitigate the effects of closing the mines:
(a) Orders that mine lessees whose operations were terminated by the court would be given
priority for leases in new areas open to limestone mining; and
(b) Orders that the Eco-task Force of the central department of Environment reclaim and reforest
the area damaged by mining and that workers displaced by mine closure be given priority for jobs
with the Eco-Task Force operations in the region.
The Constitution of India guarantees the Right to wholesome environment as a fundamental right
under Article 21. Industrialization leads to development which further leads to the degradation of
environment. To resolve this issue, the doctrine of sustainable development has come up. i.e.,
there must be balance between development and ecology. Environmental degradation is not
justified on the stake of national interest. According to the socio-economic needs of the country,
administrative and legislative strategies for harmonizing environmental and developmental values
should be formulated.
Courts play a very crucial role in determining the scope of the powers and functions of
administrative agencies and in striking a balance between the environment and development. The
need of the hour is to strike a balance between the two i.e., development on one side and pollution
free environment on the other.
A process by which development can be sustained for generations by improving the quality of
human life while at the same time living in harmony with nature and maintaining the carrying
capacity of life supporting eco-system. Its main focus is the integration of developmental and
environmental imperatives. Thus, sustainable development is the only answer and administrative
actions ought to proceed in accordance therewith.

31