 |
| LGBT Rainbow Flag |
In the last article, we discussed
about the meaning of the term ‘transgender’, their history during the British
Raj, Difference between Gender Identity and Sexual Orientation and various
conventions, principles, committees and reports on this particular issue. The
present article is an extension of this. This article will talk about -
1. Transgender related
Identities, Cultures and Experience in India
2. HIV Prevalence
3. Constitutional Provisions
4. Important Case Laws
Transgender related Identities,
Cultures and Experience in India (As discussed by the Court)
1. Hijras - Hijras are
biological males who reject their ‘masculine’ identity in due course of time to
identify either as women, or “not-men”, or “in between man and woman”, or
“neither man nor woman”. Hijras can be considered as the western equivalent of
transgender/transsexual (male-to female) persons but Hijras have a long tradition/culture
and have strong social ties formalized through a ritual called “reet” (becoming
a member of Hijra community). There are regional variations in the use of terms
referred to Hijras. For example, Kinnars (Delhi) and Aravanis (Tamil Nadu).
2. Eunuch - Eunuch refers
to an emasculated male and intersexed to a person whose genitals are ambiguously
male-like at birth, but this is discovered the child previously assigned to the
male sex, would be re-categorized as intersexed as a Hijra.
3. “Aravanis and ‘Thirunangi’
- Hijras in Tamil Nadu identify as “Aravani”. Tamil Nadu Aravanigal Welfare
Board, a state government’s initiative under the Department of Social Welfare
defines Aravanis as biological males who self-identify themselves as a woman
trapped in a male’s body.
4. Kothi – Kothis are a
heterogeneous group. ‘Kothis’ can be described as biological males who show varying
degrees of ‘femininity’ which may be situational. Some proportion of Kothis
have bisexual behaviour and get married to a woman.
5. Jogtas/Jogappas - Jogtas
or Jogappas are those persons who are dedicated to and serve as a servant of
goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and Karnataka.
‘Jogta’ refers to male servant of that Goddess and ‘Jogti’ refers to female
servant (who is also sometimes referred to as ‘Devadasi’). A lot of them belong
to the Transgender Community.
6. Shiv-Shakthis -
Shiv-Shakthis are considered as males who are possessed by or particularly
close to a goddess and who have feminine gender expression. Occasionally,
Shiv-Shakthis cross-dress and use accessories and ornaments that are
generally/socially meant for women.
HIV Prevalence
Human Immunodeficiency Virus (HIV)
and Sexually Transmitted Infections (STI) is now increasingly seen in Hijras/Transgenders
population. The estimated size of men who have sex with men (MSM) and male sex workers
population in India (latter presumably includes Hijras/TG communities)
is 2,352,133 and 235,213 respectively. It was stated that no reliable estimates
are available for Hijras/TG women.
HIV prevalence among MSM
population was 7.4% against the overall adult HIV prevalence of 0.36%. It
is also reported in recent studies that Hijras/TG women have indicated a very
high HIV prevalence (17.5% to 41%) among them. Study conducted by NACO
also highlights a pathetic situation.
Constitutional Provisions
There are various conventions and
instruments that stipulate gender equality and discourage discrimination in
this regard. India is also a party to some of these instruments. I already
mentioned the relevant conventions and principles in the previous post. Let us
discuss the provisions mentioned in our Constitution that further these
cherished principles.
1. Article 21 - The Court
said that the Constitution makers could not have envisaged that each and every human
activity be guided, controlled, recognized or safeguarded by laws made by the
legislature. Article 21 has been incorporated to safeguard those rights and a constitutional
Court cannot be a mute spectator when those rights are violated, but is
expected to safeguard those rights knowing the pulse and feeling of that community,
though a minority, especially when their rights have gained universal
recognition and acceptance.
2. Article 253 - It states
that the Parliament has the power to make any law for the whole or any part of
the territory of India for implementing any treaty, agreement or convention.
3. Article 51 of the Directive
Principles of State Policy - Article 51 states that the state shall
endeavour to foster respect for International law and Treaty Obligation. It
also states that the state shall maintain just and honourable relations between
nations.
Important Case Laws as discussed
by the Court
1. Kesavananda Bharati’s Case[1] - It was stated that in view
of Article 51 of the Constitution, the Court must interpret language of the Constitution,
if not intractable, in the light of United Nations Charter and the solemn
declaration subscribed to it by India.
2. Apparel Export Promotion
Council v. A. K. Chopra[2] - It was pointed out that domestic
courts are under an obligation to give due regard to the international
conventions and norms for construing the domestic laws, more so, when there is
no inconsistency between them and there is a void in domestic law.
3. Vishaka’s Case[3] - The court held that any
international convention not inconsistent with the fundamental rights and in
harmony with its spirit must be read into those provisions, e.g., Articles 14,
15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and
to promote the object of constitutional guarantee.
Thus, in the present case, the
court said that “Principles discussed hereinbefore on TGs and the International
Conventions, including Yogyakarta principles, which we have found not
inconsistent with the various fundamental rights guaranteed under the Indian Constitution,
must be recognized and followed, which has sufficient legal and historical
justification in our country.”
The Court also talked about
Article 14, 15 and 16. However, that shall be dealt with in my next post.
No comments:
Post a Comment