Rano and Ors. v. State of Uttarakhand  Writ Petition Criminal Nos. 1794 and 1785 of 2018

On the 28th of September, 2018, a division bench of the Uttarakhand High Court ordered the State government to implement the NALSA[1] directions. In addition to the NALSA directions, the court also gave certain additional directions to the State government with respect to the transgender population. The court granted a six month period for the implementation of these directions (i.e. by the 15th of March, 2019) The writ petitions filed in this case were filed by transgender persons and specifically contended that some private persons were interfering in the area of operation. The petition did not clarify the nature or scope of the interference. The judgment reiterated the ruling in NALSA and took judicial notice of the fact that the directions passed by the Supreme Court in NALSA had not been implemented by the State government. The NALSA directions, in full were as follows:

The directions, in full are as follows:

(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.

(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.

(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.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues.

(5) 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.

(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.

(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.

(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.

Further, the court took judicial notice of a scholarly article called, “Marginalization of Transgender Community: A Sociological Approach” which defined transgender as an umbrella term to denote those persons who exhibit gender non-conforming identities. Presumably, it inferred from the article that the transgender population is vulnerable and occupies a marginalized position in society. It further inferred that this group faces discrimination in health, education, and employment. It further inferred the familial and societal alienation faced by this group, and the fact they face more psychological problems than other social groups. It then took judicial notice of the fact that transgender children are separated from their families upon birth and given over to the Hijra community. There was no ostensible evidence produced for the court to arrive at this conclusion. If the court is taking judicial notice of a matter of fact then it must be careful to only do so when those facts are uncontroversial and so well known that they do not need any evidence in support. If a matter is debatable then judicial notice cannot be correctly taken of it and the court must make inferences from evidence produced. Here, it is arguably debatable that all transgender children (by which the court probably meant intersex children who display the intersex conditions because gender identity is  not discernible at birth) are given over to the Hijra community at birth and therefore the court should not have taken judicial notice of this question of fact.

In conclusion, the court issued the following directions to the State government:

  1. The Senior Superintendent of Police, Dehradun is directed to provide necessary protection to the petitioners in both the petitions.

  2. We direct the State Government to provide reservation in admission in educational institutions and for public appointments to the transgenders by framing a scheme within a period of six months from today.

  3. The State Government is directed to frame various social welfare schemes/programmes for the betterment of transgenders within a period of six months from today.

  4. The State Government is also directed to create public awareness to enable transgenders to come into the main stream and also to take measures to regain their respect and place in the society.

  5. The State Government is also directed to frame a scheme of housing for transgenders by giving suitable accommodation to them within six months from today.

  6. The State Government is also directed to provide financial assistance to the parents of transgenders and also to give scholarship to transgenders upto post-graduate level in order to assimilate them in the main stream.

  7. The State Government is directed to constitute a welfare board for the upliftment of transgenders in the State of Uttarakhand, within a period of six months from today. The representation shall be given to transgenders in the board.

  8. The State Government is also directed to provide free medical access to transgenders in all the hospitals.

  9. We also direct that transgenders shall have free access to public institutions, public places, playgrounds, roads including educational institutions, malls, market places, hospitals, hotels, restaurants etc.

  10. The respondent-State is also directed to provide separate toilets to transgenders in every public utility buildings including hospitals, bus stations, railway stations etc. within a period of six months from today. K. We direct the State Government to ensure that no transgender is separated from the parents and family and we also suggest the State Government to frame law/scheme to ensure that no transgender is separated from the parents/guardians and family within a period of three months from today.

  11. Criminal cases shall be registered against the persons who forcibly remove transgender from their parents/guardians and family.

  12. All the transgenders in the State of Uttarakhand are ordered to be registered by the District Magistrates to recognize them as such.

In an attempt to study the extent to which these directions of the High Court had been implemented by the Uttarakhand Government, I searched on the official website of the State government. On the website, a general search with the keyword “transgender” did not return any search results whereas the Social Welfare department and the Women and Child Welfare department websites of this State also did not carry any specific orders or schemes implementing the High Court directions. Either the Uttarakhand government has not implemented the abovementioned order of the High Court or they have not uploaded the orders to the website. The final possibility is that the old schemes and orders of the government have been modified to reflect these directions, but have not been specifically so advertised such that if one were to read all the government orders on the website, one would find that directions have been implemented. However, arguably this is not the case as a corresponding Google search to determine if Uttarakhand has implemented the directions also yielded no results. Therefore, it can be argued that the Uttarakhand Government has not implemented the directions of the High Court.

[1] National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012.

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