 |
| 2013 Rally for Transgender Equality |
In the previous parts (Part I, Part II and Part III), we understood the manner in which court explained the fundamental rights with respect to the Transgenders. The court also discussed the historical and psychological aspects relating to the Transgenders. Let us now get a deeper understanding of the court's views on fundamental rights. While explaining the synthesis between
Fundamental Rights (Part III of the Constitution) and Directive Principles of
State Policy (Part IV of the Constitution), the court also explained following
aspects relating to this issue:
1. “Our thesis is that the dialectics
of social justice should not be missed if the synthesis of Parts 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 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.”[1]
2. The court also said that it
has comprehended diverse aspects in Article 21 such as:
a. Children in
jail entitled to special treatment[2],
b. Health
hazard due to pollution[3],
c. Beggars
interest in housing[4]
d. Health
hazard from harmful drugs[5],
e. Right of
speedy trial[6],
f. Handcuffing
of prisoners[7],
g. Delay in
execution of death sentence
h. Immediate
medical aid to injured persons[8],
i. Starvation deaths[9],
j. The right
to know[10],
k. Right to
open trial[11],
l. Inhuman
conditions an after-care home[12]
3. The court also said that a
remarkable feature of this expansion of Art.21 is that many of the
non-justiciable Directive Principles embodied in Part IV of the Constitution
have now been resurrected as enforceable fundamental rights by the magic wand
of judicial activism. Some of them are:
a.
Right to pollution-free water and air[13]
b. Right to a
reasonable residence[14]
c. Right to
food , clothing, decent environment and even protection of cultural heritage[15]
d. Right of
every child to a full development[16]
e. Right of
residents of hilly-areas to access to roads[17]
4. Thus, the common golden thread
which passes through all these pronouncements is that Article 21 guarantees enjoyment
of life by all citizens of this country with dignity, viewing this human
rights in terms of human development.
5. The court further said that Transgender
people are generally excluded from the society and people think transgenderism
as a medical disease. Much like the disability, which in earlier times was
considered as an illness but later on looked upon as a right based approach. The
question whether transgenderism is a disease is hotly debated in both the
transgender and medical-psychiatric communities. The court cited various books
and authorities on this subject and concluded that a prevalent view regarding
this is that transgenderism is not a disease at all, but a benign normal variant
of the human experience akin to left-handedness.
6. Therefore, gender
identification becomes very essential component which is required for enjoying
civil rights by this community. It is only with this recognition that many
rights attached to the sexual recognition as ‘third gender’ would be available
to this community more meaningfully viz. the right to vote, the right to own property,
the right to marry, the right to claim a formal identity through a passport and
a ration card, a driver’s license, the right to education, employment, health
so on.
[1] Justice
Krishna Iyer in State of Karnataka v. Rangnatha Reddy (AIR 1978 SC 215).
[2] Sheela
Barse vs. Union of India [(1986)3 SCC 596].
[3] Mehta
M.C. v. Union of India [(1987) 4 SCC 463].
[4] Kalidas
Vs. State of J&K [(1987) 3 SCC 430].
[5] Vincent
Panikurlangara Vs. Union of India, AIR 1987 SC 990.
[6] Reghubir
Singh Vs. State of Bihar, AIR 1987 SC 149.
[7] Aeltemesh
Rein Vs. Union of India, AIR 1988 SC 1768.
[8] Parmanand
Katara Vs. Union of India, AIR 1989 SC 2039.
[9] Kishen
Vs. State of Orissa, AIR 1989 SC 677.
[10] Reliance
Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay Pvt. Ltd., AIR 1989
SC 190.
[11] Kehar
Singh Vs. State Delhi Admn., AIR 1988 SC 1883.
[12] Vikram
Deo Singh Tomar Vs. State of Bihar, AIR 1988 SC 1782.
[13] Subhash
Kumar Vs. State of Bihar, AIR 1991 SC 420.
[14] Shantistar
Builders Vs. Narayan Khimalal Totame, AIR 1990 SC 630.
[15] Ram
Sharan Autyanuprasi Vs. UOI, AIR 1989 SC 549.
[16] Shantistar
Builders Vs. Narayan Khimalal Totame, AIR 1990 SC 630.
[17] State
of H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847.
[18] Mohini
Jain Vs. State of Karnataka, AIR 1992 SC 1858.
[19] Unni
Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178.
No comments:
Post a Comment