Wednesday, June 23, 2021
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Constitutional Reality Of Transgender In CAPF

By Kaustubh Shukla

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“Every individual soul is potentially divine”- Swami Vivekananda. Supreme Court in past few decades while recognizing various fundamental rights like Equality (Art 14), Freedom (Art 19), and Personal Liberty (Art 21) has always kept individual as main focus. It’s a rights and dignity of individual citizen which culminates as collective dignity of the society. In a similar way serving nation as a part of a force is a matter of great pride and dignity for a citizen and its family. Realization of the same by an individual transgender and the family of transgender would lead to collective pride and dignity for the whole community of transgender. The word ‘dignity’ finds place in the preamble of our constitution. It also finds place in Article 3 of the Geneva Conventions, Article 7 of International Covenant on Civil and Political Rights, Article 3 of European Convention of Human Rights. 

The recent recommendation of the Central Government to recruit transgender in CAPFs Forces is a step forward to bridge the gap after passing of the landmark judgment by the Supreme Court on transgender rights in 2014 in NLSA Vs UoI. Since the passing of orders, Supreme Court issued questionnaires to governments to ascertain implementation. Many state governments still don’t have welfare board for socio-economic upliftment of transgender community, constitutional mandate for reservation and awareness schemes. In the background of this, the recent decision of central government is a footstep forward in which all other states & UT’s should follow. It’s not just an opportunity to be an officer, its recognition and dignity which the central government is reaffirming to the transgender citizen by providing personal autonomy and self-development.

Few of the transgender achievers are Madhu Bai Kinnar Mayor Raigarh Chhattisgarh in 2003, Kamala Jaan from Katni Madhya Pradesh won Mayor election in the year 1999, Padmini Prakash a news anchor, K Prithika Yashini a police officer, Laxmi Narayan Tripathi represented Asia Pacific at United Nations, Joyita Mandal Judge appointed at LokAdalat in North Bengal, Sathyasri Sharmila first lawyer. There are many such stories and each has their own struggle in absence of a collective societal acceptance by the society. The current move by the central government to include transgender in CAPFs that too as an officer will motivate many others to be an inspirational story.

In the Naz Foundation judgment court held the right by expressly using the word ‘transgender’. It was also cited in Sunil Babu Pant Case by Nepal Supreme Court and also in Bhasim Usmani case by Pakistan Supreme Court. In the landmark NLSA Vs Union of India (2014) Supreme Court while recognizing transgender as third gender in our country with legal and constitutional protection, discussed elaborately various aspect. Applying the psychological test and not biological test on transsexual, Supreme Court held that discrimination and denial of rights, privileges, employment etc is violation of fundamental rights. Supreme Court applied article 14 & 21 of the constitution referring ‘person’ as a gender neutral term and covers transgender and hence entitled legal protection of law in all spheres including employment as citizen. The judgment also states that transgender are also entitled for benefits of reservation available to socially and educationally backward classes (SEBC’s) and they have been denied rights under Article 15(2), 15(4), 16(2), 16(4). Government was also directed to take affirmative action for due representation in public employment. Although discrimination qua transgender is still there, but they are also citizen of our country and entitled for equal opportunity in employment.

In its 2014 decision Supreme Court also applied the principle of Yogyakarta Principles which is also recognized by United Nations and other various international forums. Yogyakarta Principles broadly address the standard of human right qua gender. Yogyakarta Principles was drafted by distinguished groups of human rights guardians in the meeting held at Gadjah Mada University in Yogyakarta Indonesia. Supreme Court while recognizing the fundamental rights of transgender in absence of legislation in India has exhaustively referred to various articles contained in the Universal Declaration of Human Rights, 1948, The International Covenant on Economic, Social and Cultural Rights, 1966, The International Covenant on Civil and Political Rights, 1966 as well as The Yogyakarta Principles. Reference was also made to the legislations enacted in other countries dealing with rights of persons of transgender community. Since there was no legislation in India at that time dealing with transgender, Supreme Court under Article 51 read along with Article 253, relying on various precedents enshrined in its earlier judgments including Vishaka case and has issued directions to various central and state governments to be implemented till the enactment of a legislation.

Etymologically the word ‘transgender’ is derived from Latin word ‘trans’ which mean ‘across’ or ‘beyond’. Unlike other countries in India transgender have cultural and historical importance as well referring Shiv-Shakti. Even Arjuna as Brihannala fought valiantly with the Kauravs in The Virata War. Transgender in India historically, were always given much respect but that is no longer the scenario in recent times. After the passing of the NLSA (2014) Judgment the central government enacted The Transgender Persons (Protection of Rights) Act 2019. The act codified various provisions for protection and privileges of transgender. Section 3 of the act prohibits discrimination or denial by person or establishment in employment or service to transgender. It also elaborately discussed many other forms of discrimination and denial as well. Chapter 3 of the act also gives self-perceived gender identity to transgender. Chapter 4 of the act is an obligation on the government to make sure the effective participation of the transgender in all the spheres of society with various welfare scheme and measures. Like government, even obligation is cast upon the establishment to make sure no discrimination happens with Transgender. Section 11 provides a grievance redressal mechanism wherein every establishment shall have complaint officer dealing with any such complaints of discrimination. Chapter 8 of the act deals with the offence and penalties. The chapter is surprisingly silent on punishment for denial of employment by any person or establishment on the ground of being transgender. The act no doubt gives an obligation on the establishment (i.e institute public or private, state and central government) not to deny or discriminate in the matter of employment but there is no punishment for the same if it is not adhered to. The act in many areas requires reconsideration to make it in consonance with the NALSA 2014 judgment of Supreme Court on transgender.

In the recent recommendation by Home Ministry to the CAPFs for including the transgender as Assistant Commandant is a positive move which is also welcomed by CAPFs forces. It is expected that most of the CAPFs forces will accept the MHA recommendation. DoPT (Department of personal and Training) has already asked all central government to include ‘transgender’ as third gender in all application forms in the process of recruitment to various posts. Civil Services Examination Rules 2020 has already notified for inclusion of ‘transgender’ as separate category. Central government establishment no doubt are taking a positive move in the spirit of the Act of 2019 and NALSA Judgment of 2014 but the road is too long. CAPFs forces or army or police force have a different psychological way of administration in comparison to the other civil services.

Recruitment of transgender in CAPFs is no doubt a positive move but the same will face some difficulties due to ground realities and atypical command philosophy. The recommendation to include transgender as assistant commandants will be top down approach, whereby the decision will follow from top to down and in any kind of armed forces when it comes to authority and control, command is very different thing to understand in practical sense. Just by virtue of being an officer by clearing UPSC exam one cannot impose his or her command over soldiers, it is the other way round. In present times a directly appointed officer after completing training goes to his unit where after due familirisation and pre-inductions training with soldiers an officer gets independent command of the company/unit. It is the soldiers who ultimately submits over command to the officer if they find him/her worthy. Otherwise we have seen command failure resulting in mismanagement and in extreme cases fratricides. The question is not about the ability or legal right of transgender it is about a drastic cultural change which may flow from top to bottom. Basic command structure of our forces which comprises of 10th to 12th pass soldiers and the subordinate officer who are graduate and often comes from conservative rural backgrounds which may take this cultural change as an offence on their social and religious belief. It may create resentment in commanding them. In recent we have seen instances  where women as commanding officers  were not accepted by Indian Army but with the passage of time when the idea grew in its pace and with the judgment of supreme court in 2020 the same become reality. The change is very welcome in today’s time, and is very progressive in its outlook and outcome but it should be brought in a very calibrated way so that it may not create resentment and backlash from the conservative section in armed forces who are majority in armed forces (officer to jawans ratio). Before introducing transgender in armed forces it should be implemented effectively in all other section in the society whereby it will get naturalized as part of society over the period of time so that people in general accept transgender as normal citizen e.g. Doctors, Engineers, Collectors, Judges, teachers, professors etc and when they become a common social reality then at last they should be brought in the armed forces and that too starting from constabulary to subordinate command and then to senior command and that to in a healthy span of time. So that it feels natural for transgender and also force personnel to accept transgender to be part of armed forces.

This issue of induction of third gender in CAPF is not just a legal issue, it is a social issue and when it comes to social issues, the Hegelian dialectic works, and there is a thesis which is contradicted by an anti-thesis which is then resolved to create a synthesis which becomes a social reality. The same analogy has to be applied in CAPF before recruiting third gender as officer.

The Author is a Advocate-on-Record, Supreme Court of India.

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