This case analysis has been written by Vijeta and curated by Anjeeta Rani of Chanakya National Law University.
Writ Petition ©. No. 9890 of 2020 (S)
Bench: Hon’ble Chief Justice M. S. Manikumar & Justice Shaji P. Chaly
Petitioner: Kabeer C Alias Aneera Kabeer
Respondent No.1: Secretary (Dept. of Social Justice, Thiruvananthapuram) State of Kerala
Respondent No. 2: Director (Dept. of Social Justice, Thiruvananthapuram)
Respondent No.3: State Police Chief, Vazhuthacaud, Thiruvananthapuram
Provisions Involved: Articles 14,15 and 21 of Constitution of India
KABEER C ALIAS ANEERA KABEER VS. STATE OF KERALA
Whether the Transgenders specifically discriminated in providing relief measures during lockdown due to the COVID-19 pandemic period & whether Article 14,15,21 were violated by any Arbitrary behaviour of the authorities regarding the matter?
The petitioner who is a Transgender filed a PIL, alleging that the above-mentioned respondents have not properly ensured the distribution of ration, medicines, access to medical treatment etc. to the transgender community in Kerala and discriminated against the transgender community at different levels which have altogether led to the violation of Article 14, 15 and 21 of the Indian constitution.
Arguments by the Petitioner: The Petitioner through learned counsel Adv. Thulasi K. Raj made the following submissions:
That the Petitioner was banished from her parental house at the revel of her identity and suffered disadvantages of her sexual identity since then and now she is a recognised transgender by the State of Kerala and an Identity card has been issued to her.
In her petition, she has referred to the 12th five-year plan that has recommended the empowerment of the transgender community by supporting their education, housing, healthcare, employment etc. Further, she mentions seeking the benefits of SUPRA vs UOI, a precedent that gives the right to the transgenders to self-determine their gender identity.
The Petitioner also mentions about a survey on the transgender community carried out in the year 2015 whose report was submitted to the Director of Dept. of Social Justice that revealed 54% of the transgenders earn less than Rs. 50,000/- a year and 58% are school drop-outs before 10th grade and thus, based on this report a Transgender Policy was made.
However, the petitioner alleges that during lockdown their community has endured severe crises at the hands of the respondents due to lack of essentials like food supply, medicines, aid to medical recourse etc. and also facing threats of torture from Police Authorities.
She also mentioned that several members of her community do not have ration cards and access to food and also they are unable to access community kitchens.
She has also submitted that they do not have money to pay rent and thus suffer risks of eviction and even after being entitled to get unemployment allowances, they are deprived of the financial benefits due to arbitrary attitude of the authorities.
The Petitioner has also stated that a significant number of transgenders are deprived of the necessities as the authorities are still working according to the census of 2011 where the population of transgenders in the state was 3902 whereas now it has reached to 10,000.
Prayer Sought by the Petitioner: In her Prayer, the Petitioner has asked the Court to issue a Writ of Mandamus to Respondent No.1 for –
Distribution of ration, vegetables, medicines (including Hormone therapy medicines) to the transgenders by the Respective Authorities.
Ensuring access to community kitchens and cooking facilities like LPG cylinders.
Providing unemployment allowance to the transgender community till COVID-19 persists.
Arguments by the Respondents: Respondent no. 2 through Adv. Gen. Ranjith Thampan and Snr. Govt. Pleader Surin George by filing an affidavit has taken the following contentions to rebut the allegations of the Petitioner.
The respondent stated that the Govt. has established scholarships and unemployment schemes for transgenders and made a unique identity card system so that they can easily avail the same. Also, the ration cards of transgenders are marked with T and if anyone in the community does not have a Ration card or there is any issue regarding it, they should approach the Nodal officer of the district for the same.
The Respondent further submitted that the Govt. during lockdown is taking enough steps to provide necessities to all without any discrimination and want of ration cards. Further on the non-supply of medicines the Respondent brings it to the notice of the court that only 96 applications were received for the medicines of hormone therapy which were acceptable and due supply was made, all others were incomplete and without a prescription from the medical practitioners and therefore, the demand could not be served.
The Respondent also contended that 4 short homestays are instituted in different districts to accommodate the transgender community where all the basic facilities including medicines are provided to them free of costs.
And the prime contention is that neither the committee nor the dept. has received any complaint regarding the non-supply of necessaries or eviction threats, nor any police atrocities have been specifically reported and in the event of such complaint the authorities will take action without fail.
The Court after scrutinizing the submissions and the contentions of both sides formed a view that the submissions by the Petitioner are general in nature and no specific instance of non-supply of essentials, denial of benefits granted by the Apex Court in SUPRA or any case of police atrocities have been specifically stated in the pleading. Further, the Court observed that indeed there is a list of 5 persons who have not received the essentials but the statement of respondent no.2 filed on affidavit displays that committees have been established for such grievances and any complaints should be registered with them. The State Govt. seems to have taken enough measures for the welfare of the transgender community and Authorities have been established for the purpose, now it is for the members of the community to approach the authorities to claim the rights they are entitled to.
The Court also found in the contentions by the respondent that the medicines could not be supplied without a proper prescription and the authorities are prohibited by law to do the same. Also regarding the identification, the Court opines that the identification of a transgender involves the issue of Right of Privacy guaranteed by Article 21 of Constitution of India and therefore unless a person approaches the authorities, they cannot reveal and recognise the gender identity on their own and without a proper medical examination. Otherwise, there are no reasons to deny facilities to the transgender community.
The Court thus disposed of the Writ Petition with the following guidelines:
The named 5 persons in the petition if approaching the Authority for supplies, they shall be supplied the same and their grievances shall be sorted.
The supply of medicines should be ensured by the state policy.
When any member of the Transgender community approaches the Nodal Officer, appropriate steps must be taken for identification and issuance of identity cards.
Any other issues raised by the transgender community must be addressed properly.
The Decision of the High court simply justifies very old yet prominent feature of the administrative system i.e. Hierarchy must be followed, as it forms the view that in case of any discrepancies or irregularities, a person should first report the Authorities created for the purpose. Also, this decision firmly clarifies that even a person approaching a constitutional court with public interest litigation should provide necessary materials, facts and figures enabling the constitutional court to rely upon the same and issue appropriate directions to the State and its authorities