Acceptance of third Gender in Indian Society
The framers of the Indian Constitution, while formulating it, envisaged that
future India would nurture such a society where there would be no discrimination
on the basis of caste, religion, color, sex, region etc. They envisaged the
future of India as a country where there are no caste, religious, gender,
regional etc. based inequalities and egalitarian society is established. To say
that the Indian constitution claims to provide equal opportunity and rights to
every citizen. But in the context of Transgender, this does not seem to be
Transgender have been integral part of Indian history. Transgender have been
mentioned in Indian mythology, myths, Ramayana, Mahabharata etc. Who does not
know the story of Shakuni in Mahabharata? It is also well known fact about
Arjuna that he had to lose his masculinity for some time due to the curse of a
woman. The mention of Transgender also occurs frequently in medieval history.
Especially in Mughal history it is mentioned that the Transgender were used to
serve the Begums of Mughal emperors.
But as far as equal rights of Transgender are concerned, there is no such
mention in Modern Indian history, till recent past. Even after attaining
independence, there was no significant improvement in the condition and working
situation of Transgender .
It is a matter of the recent past decades that if a Transgender baby was born
in a family, then his family members could not keep him/her in their house even
if they wanted to so. After all, what is the fault of the baby for being born as
a Transgender? But due to social unacceptability, Transgender baby had to
abandon his parents' house. Since they were not provided with the means of
education and employment, they were forced to live their lives by doing the job
of sex worker, begging, dancing etc.
It is well known fact that cinema is reflection of Society. Cinema reflects
what happens in Society. In Indian context also same is true. If one observe
display of Transgender in Indian Cinema , their role is majorly limited to act
as dancer, beggar and Sex Worker. Who can forget portrayal of Transgender in
Indian movie like Sadak , Amar, Akbar Anthony etc. At the cost of
repetition , it is asserted that even in Indian Movie, role of Transgender are
Limited to the extent of portrayal of negative characters , which further casts
light on their deteriorating condition in Indian Society.
However, in the last few years, there have been some judgments by the honorable
Indian courts that have increased their social acceptance. But the credit goes
to some social service organizations who fought in the interest of Transgender.
In the year 2014, Honorable Supreme Court of India has delivered a Judgment
National Legal Services Authority vs. Union of India observed that a
transgender is different and distinct from Male or Female and they were referred
as as the ‘Third Gender’.
Prior to this, if someone applied for a job, only the woman or man would come in
place of the applicant's gender. Now at third option is also found at the place
of Applicant's sex, where Other is written. This has been inserted
keeping in mind the interest of Transgender. This result in fair treatment to
transgender at working place, restoring their dignity.
This is an important decision given in favour of Transgender. Changing times has
also witnessed various other developments. Now we hear many news through News
Paper and Television Channels that Transgender are fighting for election. Even
at the municipal levels , Transgender are also elected. It's good sign for
This year, another decision came from the Honorable Kerala High Court, through
which a female Transgender was allowed to Join N. C.C. It was case, where a
female Transgender applied to Join N.C.C.. But N.C.C. refused to do.so by citing
their own rules and regulations that only Male and Female are eligible to apply
for joining N.C.C. and not the transgender. Thus in situation , the female
Transgender was left with no other option , but to approach Honorable Kerala
High Court, where she was allowed to Join N.C.C. This Judgment is also an
important decision taken in favour of social acceptance of Transgender.
Recently, another Petition has been filed in the Hon'ble Supreme Court of
India demanding the Transgender right to donate blood . The Honorable Supreme
Court of India has issued notice on this Petition recently this year. It is
expected that similar more important decisions will come from the Honorable
Courts rendering more social acceptability of Transgender in Indian Society.
In the year 2015, WHO has issues a guideline, which is meant to be applied
throughout world, off course in India also. As per this guideline, no medical or
other wise any discrimination is to be done to the Transgender. Though this
guidelines have come in the year 2015, but yet to find full force in India.
Though Section 377 of IPC is not directly related to Transgender, however it has
been used as tool to harass a Transgender , in the name of Law. The Judgment
which came from Honorable High Court of Delhi, has further given liberal
interpretation of Section 377 of IPC and made life of Transgender more
In the year 2019, The Transgender Persons (Protection of Rights) Bill, 2019 was
introduced in Lok Sabha, which protects the transgender from any kind of
discrimination. However as per this bill, a transgender can avail benefit only
when a transgender is recognized as transgender on the basis of certificate
issued by District Magistrate. This bill also criminalizes begging. Actually no
one opt for begging out of his/her own choice. Instead to passing such
impractical law, the Government should come forward with more practical measure
to improve their condition.
For the sake of name, Government of India has been taking steps to improve their
condition. However actual welfare has been done by the Indian Judiciary by
rendering various useful Judgments. Although there have been some decisions by
the Honorable High Court and the Supreme Court which can be said that the
eunuchs are in their favor, but are they being accepted in the society in the
same way as other citizens?
The reality is that Transgender are still begging at traffic red lights. There
is still no improvement in their education. The means of employment are still
not available for them. Still, on the occasion of marriage, marriage etc.,
Transgender have to earn their livelihood by singing and dancing. Transgender
still have to approach the honorable courts again and again to fight for their
honor and opportunity. Political parties have been making reservations for
protecting their vote bank.
Then why is there no provision for any reservation for these Transgender? Is
welfare schemes and reservations are meant for only those , who are beneficial
to political interest. Is Political interest is the only guiding factors for
welfare schemes or Indian Constitution has some role in it?
Are they not as good citizens of India as others are? Is there no accountability
of the Indian Government towards them? Is it not the job of the Indian
Political system to provide equal opportunities of education and employment to
Transgender ? Or is there not any other way left for the Transgender , but to
go for honorable courts again again in order to fight for social acceptance?
What then remains the justification for the provision of the right to equality
as enshrined in the Indian Constitution?
Written By: Ajay Amitabh Suman
Law Article in India
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