,,,
1. Following questions arise for consideration:-,,,
(i) What is the nature of the duty cast upon the State to assimilate the members of the transgender community into the main stream of society and,",,,
reduce progressively, and eliminate discrimination against such a community?",,,
(ii) Does not the State owe positive duty to create avenues of employment for transgender persons in a manner that they are enabled in becoming, in",,,
true sense citizens of the country as recognized by the Constitution?,,,
2. The present writ petition highlights the extremely difficult conditions faced by the transgender community within the State of Bihar during the period,,,
of the Pandemic (COVID-19). The Petitioner drew our attention to various incidents such as denial of rations to certain persons belonging to the,,,
Transgender Community as also asking the Government to provide 25kg rations to all members of such community; monetary assistance of Rs. 5000/-,,,
; Rs. 2000/- for rent for a period of at least six months; set up of a speedy grievance redressal system; and establish facilitation centre; etc.,,,
3. This Court, appreciating effort taken to highlight the sorry condition in which people of the transgender community (hereinafter referred to as TGC),",,,
were living within the State of Bihar, vide order dated 01.05.2020 noted that as per the 2011 census more than 40 thousand people, of TGC living",,,
within the State were facing certain issues. Reference was made to the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to",,,
as the Act) to underline the responsibility of the State to undertake welfare measures for people of the community. Relevant portion of the order dated,,,
01.05.2020 is quoted hereunder:-,,,
“The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as ‘the Act’) was enacted to provide for protection of",,,
rights of transgender persons and their welfare and for matters connected therewith and incidental thereto.,,,
As per the Act, no person or establishment shall discriminate against a transgender in the matter of education, employment, occupation, health,",,,
enjoyment of goods, accommodation, services, facilities etc. In fact, by virtue of the provisions contained in Chapter III thereof, identity of the",,,
transgender persons stands recognized with a right to have proper record maintained by the authorities. Section 8 mandates the appropriate authority,",,,
which in the instant case, as per definition (Section 2) would be the State, is required to take certain welfare measures. For ready reference Section 8",,,
reads as under:-,,,
“8. (1) The appropriate Government shall take steps to secure full and effective participation of transgender persons and their inclusion in society.,,,
(2) The appropriate Government shall take such welfare measures as may be prescribed to protect the rights and interests of transgender persons, and",,,
facilitate their access to welfare schemes framed by that Government.,,,
(3) The appropriate Government shall formulate welfare schemes and programmes which are transgender sensitive, nonstigmatising and non-",,,
discriminatory.,,,
(4) The appropriate Government shall take steps for the rescue, protection and rehabilitation of transgender persons to address the needs of such",,,
persons.,,,
(5) The appropriate Government shall take appropriate measures to promote and protect the right of transgender persons to participate in cultural and,,,
recreational activities.â€,,,
…,,,
Also the State shall consider providing a Facilitation Centre a one Point Centre dealing with all problems- for the members of the community at the,,,
grass root level, which can be similar to the Anganwari system prevalent in the State of Bihar.â€",,,
4. Further, vide order dated 27.08.2020, the Principal Secretary, Social Welfare Department, Government of Bihar, as well as Government of India",,,
were directed to file an affidavit with respect to compliance of the provisions of the Act as also the directions issued by Hon’ble the Apex Court,,,
in National,,,
Legal Services Authority v. Union of India, (2014) 5 SCC 438 and in particular para 135 thereof which reads as under:-",,,
“135. We, therefore, declare:",,,
135.1. Hijras, eunuchs, apart from binary genders, be treated as “third gender†for the purpose of safeguarding their rights under Part III of our",,,
Constitution and the laws made by Parliament and the State Legislature.,,,
135.2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal,,,
recognition of their gender identity such as male, female or as third gender.",,,
135.3. We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and,,,
extend all kinds of reservation in cases of admission in educational institutions and for public appointments.,,,
135. 4. The Centre and State Governments are directed to operate separate HIV serosurveillance centres since hijras/transgenders face several,,,
sexual health issues.,,,
135.5. The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender",,,
dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and",,,
illegal.,,,
135.6. The Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them,,,
separate public toilets and other facilities.,,,
135.7. The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.,,,
S.No.,"Direction of the
Hon’ble Court
passed in NLSA Vs UoI
Case","Steps taken by the
State in the
Compliance of the
Case",Status
1.,"Hijras, Eunuchs, apart
from binary gender, be
treated as “third
gender†for the purpose
of safeguarding their rights
under Part III of our
Constitution and the laws
made by the Parliament
and the State
Legislature.","GAD resolution number
12722 dated
12.09.2014 declares
Hijras, Eunuchs and
those apart from binary
gender as “third
genderâ€.",Complied
2.,"Transgender persons’
right to decide their self-
identified gender is also
upheld and the Centre and
State Governments are
directed to grant legal
recognition of their gender
identity such as male,
female or as third
gender","GAD resolution number
12722 dated
12.09.2014 declares
Hijras, Eunuchs and
those apart from binary
gender as “third
genderâ€.",Complied
3.,"We direct the Centre and
the State Governments to
take steps to treat them
socially and
educationally backward
classes of citizens and
extend all kinds of
reservation in cases of
admission in
educational institutions and
for public appointments.","GAD resolution number
12722 dated
12.09.2014 declares
“third gender†shall
get the beneficial
treatment as backward
class in cases of
admission in Universities
and for appointments to
S t a t e Governments
services. District Council,
Municipal Council, semi-
government services
and public enterprises.",Complied
4.,"Centre and State
Governments are directed
to operate separate HIV
Sero - survellance Centre
since Hijras/Transgender
face
several sexual health
issues.","Letter No. 501 dated
27.02.2019 sent from
SWD to Health Dept.
about proposal outline
prepared regarding.
(i) to operate sep- arate
HIV Sero - survellance
Centres since Hijras/
Trans- gender face
several sexual health
issues.
(ii) To address several
psychological problems","Partly
complied,
remaining
under process
,,,
,,,
5.,"Centre and State
Governments should
seriously address the
problems being faced by
Hijras/ Transgender such
as fear, shame, gender
dysphasia, social pressure,
depression, suicidal
tendencies, social stigma,
etc and any insistence for
SRS for declaring
one’s gender is
immoral and
illegal.","faced by Transgender.
(iii) To provide proper
measure for medical care
to Trans- gender.
In continuation of earlier
letters sent to Heath
Dept. through letter 123
dated
17.01.2018, letter 889
dated 17.04.2018,
letter 56 dated
08.01.2019 and letter
852 dated 15.05.2020
requesting compliance.
>> Sensitization and
awareness training of the
plight of such persons
has been done in SWD
through meeting and
Video Conferencing for
all officials/ workforce of
SWD and its 4
directorates (DSW,
ICDS, DSS, DDE) as
well as State Disability
Commission office. For
remaining State
government officials and
other officers a letter No.
1352 dated 21.05.2019
from
SWD has been sent.",
6.,"Centre and State
Governments should take
proper measures to
provide medical care to
TGs in the hospitals and
also provide them separate
public toilets and other
facilities.",,
7.,"Centre and State
Governments should also
take steps for framing
various social welfare
schemes for their
betterment.","Bihar Rajya Kalyan
Board Rules, 2015
(notification 1378
dated 22.07.2015) covers
this. According to the
decision taken in Bihar
Kalyan Board meeting
dated 21.03.2018 for the
purposes of
recommendations and
suggestions for
transgender welfare, two
committees have been
formed by SWD order
1320 dated
08.06.2018. viz (i)
Executive Committee
and (ii) Advisory
Committee.","Complied
ongoing.
8.,"Centre and State
Governments should take
steps to create public
awareness so that TGs
will feel that they are also
part and parcel of the
social life and be not
treated as untouchables.","Sensitization and
awareness training of the
plight of such persons in
the light of the
observations contained in
W P (Criminal) 76/2016
(before Hon’ble
Supreme Court) has been
done in SWD through
meeting and Video
Conferencing for all
officials/workforce of
SWD and its 4
directorates (DSW,
ICDS, DSS, DDE) as
well as State Disability
Commission office.
For remaining State
government officials and
other officers a letter No.
1352 dated 21.05.2019
from
SWD has been sent. For
Police Officials :
>>Letter no. 2385
dated 02.05.2019
from Deputy Inspector
General of Police
(Personnel) sent to SWD
annexing copy of Letter
no. 5811/400655/X.L.
dated 10.12.2018
which was sent by
Inspector General of
Police (Provision) to apar
P olic e Mahanideshak
(aparadh anusandhan
dept), all Prashetriya
Police Mahanirikshak,, all
Shetriya Police Up-
mahanirikshak, all variya
police adhikshak, all
variya police adhikshak (
Rail Sahit) requesting
them to ensure
compliance with the SC
directions in
WP(Criminal) 76/2016.","Complied
ongoing.
9.,"Centre and the State
Governments should also
take measures to regain
their respect and place in
the society which once
they enjoyed in our cultural
and social life.","GAD resolution number
12722 dated
12.09.2014 declares
‘third gender†shall
get the beneficial
treatment as backward
class in cases of
admission in Universities
and for appointments to
S t a t e Government
services, District Council,
Municipal Council, semi
government services and
public enterprises.
<< Sensitization and
awareness training of the
plight such persons has
been conducted as stated
above.","Complied
ongoing.
10.,"An Expert Committee has
already been constituted to
make an in-depth study of
the problems faced by the
Transgender community
and suggest measures that
can be taken by the
Government to
ameliorate their problems
and to submit its report
with recommendations
within three months of its
constitution .
Let the
recommendations be
examined based on the
legal declaration made in
this Judgment and
implemented within six
months.","Steps taken as above.
Reply from SWD to
Ministry of Social Justice
and
Empowerment, UOI by
Gyapank 1789
dated 05.07.2019 to
Letter F.No. P.
13011/7(3)/2019-DP- III
dated 03.06.2019
from GOI. [This letter
also referred to D.O. No.
17-08-2013-DP-II
(Vol. II) dated
21.07.2014 sent from the
Ministry of Social Justice
and
Empowerment to all CS
which provides in its ‘
Annexure II’ a
summary of
conclusions and
recommendations of the
Expert
Committee.","State part
complied, rest
on going
An affidavit filed by the State does indicate grant of benefit of reservation for certain posts, as a class to the Transgenders, in the category of OBC. If",,,
that were so, then how can such a benefit accorded, unless a person applies and not precluded from applying for the post.",,,
It appears that either the officers are working at cross purposes; without co-ordination; or not adequately sensitized, both of law as also the welfare",,,
measures undertaken by the State.â€,,,
9. Pursuant to the above quoted observations, the State Government appreciably with a notification dated 14th January, 2021 took a decision to",,,
implement reservation to the position of Constable/Sub-Inspector for people of TGC-one post per five hundred.,,,
10. Vide order dated 03.02.2021, this Court took note of affidavit filed by Additional Chief Secretary, Government of Bihar, relevant portion of which",,,
is reproduced hereinunder:-,,,
“3. It is further submitted that as stated above, the total population of transgender community in the State is very low i.e. 0.039% of total population",,,
of the State. Possibility of eligible candidate of transgender community for appointment of constable and sub inspector of Police would also very low.,,,
In above situation, it is considered practical to create a separate unit of Transgender Police Personnel named as Special Unit (Transgender) at the",,,
District Level under the District S.P. Initially, the structure of this unit will be 1-4(One officer-4 Constable/Havildar). As and when during the course",,,
of time the recruited number of transgender personnel increases, the number of units will be increased and convertedinto a squad strength comprising",,,
of 2-8, and subsequently into a platoon strength of 6-24.â€",,,
(Emphasis supplied),,,
11. It was in the light of this affidavit, the process of selection by Central Selection Board of Constables was allowed to continue in terms of the",,,
advertisement. Keeping in view the reformative nature of this inclusive selection process, this Court suggested that the lowest possible application fee",,,
may be charged from applicants from the reserved category.,,,
12. Vide order dated 09.03.2021, the Court noted that the issue to be considered is whether provisions of the Act would apply to people of TGC",,,
seeking appointment within the State. Such benefits stood accorded for recruitment of Constables/Inspectors. In addition to this, the Court suggested",,,
that benefit may also be extended to other Departments within the State considering the small population numbers as also have an overall positive,,,
impact on the community. The relevant portion of the order dated 09.03.2021 is quoted hereinuder:,,,
“Perhaps, the limited issue which arises for consideration is as to whether benefit of the provisions of the Transgender Persons (Protection of",,,
Rights) Act, 2019 would be applying to the transgenders for seeking appointment in the State of Bihar. We are informed that such benefit stands",,,
accorded for recruitment of Constables/Inspectors, Home Department. In fact, considering the total population of the transgender community in Bihar,",,,
which is 0.039% (Approximately 39,000 and odd), perhaps, the Government may consider conferring similar benefit with respect to other",,,
Departments.,,,
A decision in the affirmative would not only uplift the lifestyle and education of the persons, but also going to be a correct step in bringing them into the",,,
mainstream. Perhaps, at this point in time, there may not be very many persons to be even eligible to apply. But then, such benefit would only inspire",,,
persons from such community to undertake education and to become eligible for appointment to such posts. May be, reservation on regular basis can",,,
be confined upto O.B.C. category for transgenders. But then, that is a decision which the Government has to take.â€",,,
13. The State is under constitutional as well as statutory obligation to protect the transgender community from the pervasive discrimination that they,,,
are facing. As citizens of India, they not only have all rights under the golden triangle of the Indian Constitution, i.e. Articles 14, 19 and 21, as",,,
recognized by Hon’ble the Supreme Court in National Legal Services Authority Judgment (supra), but also, such obligation imposed by an",,,
enactment of statute as well as International Instruments to which, India as a Nation is a signatory. Provisions which necessitate taking of steps for",,,
welfare of this community are reproduced hereinbelow for emphasis.,,,
RELEVANT PROVISIONS,,,
14. After the recognition of transgender persons by Hon’ble the Supreme Court in the celebrated National Legal Services Authority Judgment,,,
(supra), the Union Government has enacted certain laws for the welfare of this hitherto neglected community, the same are being reproduced for",,,
effect:-,,,
The Transgender Persons(Protection of Rights) Act 2019.,,,
15. The object and reasons of clause of this Act reads-,,,
‘An Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental,,,
thereto’.,,,
16. Under Chapter IV of the Act titled as “Welfare Measures By Governmentâ€, the Government is obligated to initiate welfare measures for",,,
persons of the transgender community.,,,
17. Section 8 obligates the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in,,,
society; (2) such welfare measures as may be prescribed to protect the rights and interests of transgender persons, and facilitate their access to",,,
welfare schemes framed by that Government; (3) formulate welfare schemes and programmes which are transgender sensitive, non-stigmatising and",,,
non-discriminatory; (4) take steps for the rescue, protection and rehabilitation of transgender persons to address the needs of such persons; (5) take",,,
appropriate measures to promote and protect the right of transgender persons to participate in cultural and recreational activities.,,,
18. Under Section 22, the Government is empowered to make rules for carrying out the provisions of the Act.",,,
19. The Transgender Persons (Protection of Rights) Rules were notified in 2020. Rule 7 thereof provides for Welfare measures, education, social",,,
security and health of transgender persons by appropriate Government; notifying the general category transgender persons in 'other backward classes',,,
so as to enable them to avail the benefits of vertical reservation provided for the other backward classes; review all existing educational, social",,,
security and health schemes and welfare measures to include transgender persons so as to protect their rights and interests and facilitate their access,,,
to such schemes and welfare measures; formulate educational, social security and health schemes and welfare schemes and programmes in a manner",,,
so as to be transgender sensitive, non-stigmatising and non-discriminatory to transgender persons; review Acts, rules, regulations, codes, bye-laws, and",,,
such statutes for the rescue, protection and rehabilitation of transgender persons to address their needs; create facilities such as separate persons to",,,
participate in cultural activities; carry out awareness campaigns to enlighten and facilitate transgender persons to avail benefits of welfare schemes as,,,
well as to other stakeholders in developing appropriate change in behavior towards transgender persons.,,,
20. In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, Hon’ble the Supreme Court held as under:-",,,
“181. The observation made in Suresh Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that gays,",,,
lesbians, bisexuals and transgenders constitute a very minuscule part of the population is perverse due to the very reason that such an approach would",,,
be violative of the equality principle enshrined under Article 14 of the Constitution. The mere fact that the percentage of population whose,,,
fundamental right to privacy is being abridged by the existence of Section 377 in its present form is low does not impose a limitation upon this Court,,,
from protecting the fundamental rights of those who are so affected by the present Section 377 IPC.,,,
182. The Constitution Framers could have never intended that the protection of fundamental rights was only for the majority population. If such had,,,
been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as “majority persons†or",,,
“majority citizensâ€. Instead, the provisions have employed the words “any person†and “any citizen†making it manifest that the",,,
constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when,,,
the fundamental rights of the majority of citizens get violated.,,,
183. Such a view is well supported on two counts, namely, one that the constitutional courts have to embody in their approach a telescopic vision",,,
wherein they inculcate the ability to be futuristic and do not procrastinate till the day when the number of citizens whose fundamental rights are,,,
affected and violated grow in figures. In the case at hand, whatever be the percentage of gays, lesbians, bisexuals and transgenders, this Court is not",,,
concerned with the number of persons belonging to the LGBT community. What matters is whether this community is entitled to certain fundamental,,,
rights which they claim and whether such fundamental rights are being violated due to the presence of a law in the statute book. If the answer to both,,,
these questions is in the affirmative, then the constitutional courts must not display an iota of doubt and must not hesitate in striking down such",,,
provision of law on the account of it being violative of the fundamental rights of certain citizens, however minuscule their percentage may be.â€",,,
21. In National Legal Services Authority (supra), Hon’ble the Supreme Court held as under:-",,,
“66. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognising that sex discrimination is a historical fact and needs to be",,,
addressed. The Constitution-makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct",,,
or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalisations of binary genders. Both",,,
gender and biological attributes constitute distinct components of sex. The biological characteristics, of course, include genitals, chromosomes and",,,
secondary sexual features, but gender attributes include one's self-image, the deep psychological or emotional sense of sexual identity and character.",,,
The discrimination on the ground of “sex†under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The",,,
expression “sex†used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider",,,
themselves to be neither male nor female.,,,
67. TGs have been systematically denied the rights under Article 15(2), that is, not to be subjected to any disability, liability, restriction or condition in",,,
regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the,,,
socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC.",,,
State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also,,,
entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are",,,
violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of,,,
employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under",,,
Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.,,,
68. Articles 15(2) to (4) and Article 16(4) read with the directive principles of State policy and various international instruments to which India is a,,,
party, call for social equality, which TGs could realise, only if facilities and opportunities are extended to them so that they can also live with dignity",,,
and equal status with other genders.,,,
74. The recognition of one's gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of",,,
one's sense of being as well as an integral part of a person's identity. Legal recognition of gender identity is, therefore, part of the right to dignity and",,,
freedom guaranteed under our Constitution.,,,
75. Article 21, as already indicated, guarantees the protection of “personal autonomy†of an individual. In Anuj Garg v. Hotel Assn. of India",,,
[(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference",,,
by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in.",,,
Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed,,,
under Article 21 of the Constitution of India.,,,
80. Article 21, as already indicated, protects one's right of self-determination of the gender to which a person belongs. Determination of gender to",,,
which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the",,,
core of “personal autonomy†and “self-determinationâ€. Hijras/eunuchs, therefore, have to be considered as Third Gender, over and above",,,
binary genders under our Constitution and the laws.,,,
81. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude hijras/transgenders from their ambit, but the Indian law on the",,,
whole recognise the paradigm of binary genders of male and female, based on one's biological sex. As already indicated, we cannot accept the",,,
Corbett Principle of “biological testâ€, rather we prefer to follow the psyche of the person in determining sex and gender and prefer the",,,
“psychological test†instead of “biological testâ€. Binary notion of gender reflects in the Penal Code, 1860 for example, Section 8, 10, etc. and",,,
also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NREGA, 2005, etc. Non-recognition",,,
of the identity of hijras/transgenders in the various legislations denies them equal protection of law and they face widespread discrimination.,,,
82. Article 14 has used the expression “person†and Article 15 has used the expression “citizen†and “sex†so also Article 16. Article 19,,,
has also used the expression “citizenâ€. Article 21 has used the expression “personâ€. All these expressions, which are “gender neutralâ€",,,
evidently refer to human beings. Hence, they take within their sweep hijras/transgenders and are not as such limited to male or female gender. Gender",,,
identity as already indicated forms the core of one's personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in",,,
our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.",,,
100. Speaking for the vision of our Founding Fathers, in State of Karnataka v. Ranganatha Reddy [(1977) 4 SCC 471 : AIR 1978 SC 215] , this Court",,,
speaking through Krishna Iyer, J. observed : (SCC p. 496, paras 44-45)",,,
“44. The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine, economic",,,
democracy sans which political democracy is chimerical. We say so because our Constitution, in Parts III and IV and elsewhere, ensouls such a value",,,
system, and the debate in this case puts precisely this soul in peril.",,,
45. … Our thesis is that the dialectics of social justice should not be missed if the synthesis of Part III and Part IV is to influence State action and,,,
court pronouncements. Constitutional problems cannot be studied in a socio-economic vacuum, since socio-cultural changes are the source of the new",,,
values, and sloughing off old legal thought is part of the process of the new equity-loaded legality. A Judge is a social scientist in his role as",,,
constitutional invigilator and fails functionally if he forgets this dimension in his complex duties.â€,,,
(emphasis in original),,,
105. The concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in",,,
the Preamble, clearly recognise the right of one and all amongst the citizens of these basic essentials designed to flower the citizen's personality to its",,,
fullest. The concept of equality helps the citizens in reaching their highest potential. Thus, the emphasis is on the development of an individual in all",,,
respects.,,,
106. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set-up. Democracy",,,
requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method,,,
by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on,,,
peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to",,,
recognise the right of a human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspect of,,,
self-determination, dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic",,,
growth; it is human dignity.â€,,,
OBLIGATION UNDER INTERNATIONAL LAW,,,
22. In keeping with Article 51 of the Constitution of India which relates to fostering respect for international law and treaties, it is pertinent to mention",,,
in light of the expanded scope of the petition vide order dated 20.05.2020, that we must also obligations of the state under international law, which will",,,
serve as a markers of the direction in which our efforts, collectively as institutions of a democracy, should proceed.",,,
23. Article 4 (1) of the International Covenant for Civil and Political Rights to which India is a signatory, imposes an obligation upon the State, even in",,,
times of emergency, to not discriminate. The text of the Article is reproduced hereunder-",,,
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the",,,
present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of,,,
the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination",,,
solely on the ground of race, colour, sex, language, religion or social origin.â€",,,
24. Article 26 of International Covenant for Civil and Political Rights reads as under:-,,,
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall",,,
prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex,",,,
language, religion, political or other opinion, national or social origin, property, birth or other status.â€",,,
25. This has been echoed by Hon'ble the Apex Court in Navtej Singh Johar (supra).,,,
26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights reads as under:-",,,
“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without,,,
discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.â€",,,
27. Article 11 of this Covenant recognizes that everyone has a right of an adequate standard of living, in the following terms-",,,
“1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family,",,,
including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to",,,
ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.",,,
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and",,,
through international co-operation, the measures, including specific programmes, which are needed…â€",,,
28. The UN Fact Sheet on ‘International Human Rights Law and Sexual Orientation & Gender Identity’ puts it succinctly and directly as-,,,
“The equality and non-discrimination guarantee provided by international human rights law applies to all people, regardless of sex, sexual orientation",,,
and gender identity or “other status.†There is no fine print, no hidden exemption clause, in any of our human rights treaties that might allow a",,,
State to guarantee full rights to some but withhold them from others purely on the basis of sexual orientation and gender identity.â€,,,
29. From the holding and observations of Hon’ble the Supreme Court in the above judgments as also the statutory as well as the International,,,
obligations referred to above, the duty of the State cannot be given further emphasis to. As a welfare State, it is first and foremost responsibility of the",,,
State to ensure the well being of all citizens. In case of the transgender community, not only were the eyes of the State shut, but also the prejudices so",,,
engrained were continued without thought.,,,
30. Significantly now, since the institution of this public interest litigation, the State has taken a number of appreciable steps which will/are having a",,,
positive impact on the community. It is hope which we hereby express, that the State will continue making efforts and breaking new ground in",,,
realization of all rights to the TGC as they are entitled under the Constitution of India.,,,
31. Beneficial treatment to members of TGC stands granted in compliance of directions of the Hon’ble Supreme Court in National Legal Services,,,
Authority (supra) as per the chart reproduced above. However, systemic discrimination shall not be cured only by employment opportunities. Other",,,
than welfare measures directed at TGC, the State must take steps to root out discrimination from within the general public. That may include",,,
awareness, sensitization programmes; educational reforms, training for educators; etc.",,,
32. Apart from the steps that already stands taken, we direct that the steps labelled as pending in the chart referred to above, if still continue in the",,,
same status, be expedited.",,,
33. Considering that much time has passed since the last order of the Court, we further direct the Additional Chief Secretary, Social Welfare",,,
Department, Government of Bihar to convene a meeting, seek updates on the welfare measures and issue appropriate directions to ensure that",,,
further, all possible steps are taken for benefit of this community without any further delay.",,,
34. Issues are answered accordingly.,,,
35. This petition as also the associated interlocutory applications stand disposed of with the above observations and directions.,,,
