RAYAT COLLEGE OF LAW

CONSTITUTION PROJECT

TOPIC

CONCEPT OF RULE AND EQUALITY UNDER INDIAN

CONSTITUTION WITH REFERENCE TO RIGHTS OF
TRANSGENDERS

Submitted TO: DR. AKASHDEEP SINGH

Submitted By: SAUMYA JAIN

Class: BCOM LLB

Section: B

Roll No:18618
ACKNOWLEDGEMENT:

I would like to express my special thanks of gratitude to

my teacher who gave me the golden opportunity to do
this wonderful project on the topic Concept Of Cardinal
Utility. This helped me in doing a lot of research work
and I came to know about many new things.
I would also like to thank my parents and friends who
helped me a lot in finishing this project within the limited
period of time. I am not making this project for marks but
to gain knowledge.

Introduction
Every human being is born equally and therefore the makers of the
Indian Constitution had also made provision for equality of the people.
Article 14 is one of the most important Articles of the Indian
constitution and it is also regarded as part of the golden triangle of the
Constitution along with Article 19 and 21.

In India, this right is very important because there has been a

widespread socio-economic difference which has been in existence
from a long time. People have been discriminated on the basis of their
gender or the religion they follow, therefore Article 14 was included in
the Constitution to remove such inequalities and bring all the people
under the equal protection of the law.

Article 14 is the embodiment of equality which has been provided in

the Preamble. Another important point about this Article is that it not
only imposes a duty on the State to abstain from discriminating people
but it also puts a positive duty to take such action by which the
inequalities can be bridged between the people.

Article 14
According to Article 14, the State cannot deny equality before law and
equal protection of law to any person within India. The expression
‘equality before law’ is a negative concept and the State has a duty to
abstain from doing any act which is discriminatory in nature.

Under it, there is an absence of any special privilege to any particular

group of people and regardless of the rank of a person, he is subject to
the same provisions of law. Thus, no person is above the law of the
land/lex loci and all have to abide by it.

The term ‘equal protection of law’ is based on the 14th Amendment of

the US Constitution. It directs that equal protection of the law should
be provided to all the people of India for the enjoyment of their rights
without any privileges or favouritism towards any person. This is a
positive concept because it implies a duty on the State to take actions
for ensuring this right to all the citizens.

Thus both these expressions make the provision of equal treatment

binding on the State. In the case of Sri Srinivas Theatre v. Government
of Tamil Nadu, the Supreme Court explained that both these
expressions may appear to be same but they have different meanings.
The term equality before the law is a dynamic concept with many
aspects, one such aspect being that there should be an absence of any
privilege or a person being above the law.

Equality before Law

Under equality before the law, the principle of like should be treated
alike is followed. It means that the right to sue and be sued for the
same cause of action should be the same for the people who are equals
i.e. the people who are in similar circumstances and such right should
be available to them without any discrimination on the basis of religion,
sex, caste or any other such factor.

In the case of State of West Bengal v. Anwar Ali Sarkar, the court held
that the term ‘equal protection of law’ is a natural consequence of the
term ‘equality before law’ and thus it is very difficult to imagine a
situation in which there has been a violation of equal protection of law
is not a violation of equality before law. So, while they have different
meanings, both the terms are interrelated.

Rule of Law
Dicey had given the concept of the rule of law. Rule of law means that
no person is above the law. Equality of law is part of the Rule of Law
which has been explained by Dicey.

Dicey had given three meanings to this term:

The supremacy of law: It means that the law is supreme and the
Government cannot act arbitrarily. If a person has violated any law, he
can be punished but he cannot be punished for anything else at the
whim of the Government.

Equality before Law: It means that all the people should be subject to
the same provisions of law which is administered by the ordinary courts
of the land. Thus, no person is above the law and has to follow the law.
Dicey had given an exception to the Monarch under this rule because in
England it is believed that the King can do no wrong.

Constitution originates from the ordinary law: It means that the rights
of the people is not granted by the constitution but instead it is the
result of the law of the land which is administered by the courts.

In India, the first and second rule has been adopted but the third rule
has been omitted because the Constitution is the supreme law of the
land and the rights of the people originate from it and all the other laws
which are passed by the Legislature should not violate the provisions of
the Constitution.

An exception to Equality before Law

There is some exception to the rule of equality which has been
provided under the Indian Constitution. Under Articles 105 and 194, the
Members of the Parliament and the State Legislatures respectively are
not held liable for anything which they say within the House.

Under Article 359 when there is a proclamation of Emergency, the

operation of Fundamental Rights including Article 14 can be suspended
and if any violation of this right is done during such proclamation, it
cannot be challenged in the Courts after the proclamation ends.

Under Article 361 the President and the Governors are not liable to any
court for any act which is done by them in exercising their power and
duties of the office.

Equal Protection of Laws

It imposes a duty on the State to take all the necessary steps to ensure
that the guarantee of equal treatment of people is followed. Like
people being treated alike is followed under this rule and another
important point under this rule is that unlike should not be treated
alike. Thus, even if people who are under different position and
circumstances are governed by the same rule then it will also have a
negative effect on the rule of equality.

Importance of transgender protections

The importance of transgender protection arises due to the various
issues faced by the community in almost every field of life. The issues
on the lack of legal protection, poverty, lack of identity documents, and
harassment and stigma form the major problems faced by the
community as a whole and thus, makes it necessary to protect the
transgender community.
It was in the case of Jayalakshmi vs State of Tamil Nadu (2007) 4 MLJ
849 that a transgender was sexually abused in the police station by the
police officials. He was alleged to have committed theft but the
treatment given to him was not the kind given to other thieves.

Further, the amendment of 1986 to the Immoral Traffic Prevention Act,

1956, made both the men as well as transgenders the subjects of
criminal acts in matters of trafficking of children and women. The
possibility of transgenders being a victim of such offense was
completely ruled out.

Also as suggested by a report National Transgender Discrimination

Survey (NTDS), about 15 per cent of the transgender community live in
extreme levels of poverty. Almost 33 per cent of transgenders do not
have their identity documents because of the fear of rejection or
embarrassment which they have to suffer on revealing their truth.

Transgender protection and Sex Discrimination

The laws regulating and protecting the lives of humans are many, but
when it is about the protection of transgender people, there is an
efficacy of the same.

Trans people are the ones who are born with particular sex but their
gender identities do not conform to the same. Such people, in most
cases, are met with discrimination on their sexual orientation and this is
termed transphobia. The number of cases of sexual discrimination met
by the transgender Community goes unreported most of the time.

Kerala being the first state to launch the State Policy of Transgender
has many incidents of sexual discrimination faced by trans people.
Incidents of a trans woman being locked up in a ventilation-less room
for a total of 30 minutes went unreported, the reason being the police
officials also being involved in harassing the transgender under the false
presumption of them being prostitutes.

This ill-treatment met by the transgender community reveals the non-

acceptance of the community by the society and violation of the basic
fundamental rights to a section of people infringing Article 15 of the
Constitution which prohibits any sort of discrimination on the basis of
race, religion, caste, or sex or any of them.

The right to self-identify one’s gender, including as “third gender”-

Constitutional right to live with dignity

The right to live with dignity, provided under Article 21 of the

Constitution of India states that every individual has the right to life and
personal liberty. The ambit of the provision has been widened to a
great extent since its inception and through various judgments,
including the right to live with human dignity and not just an animal
existence.

Considering the situation of the transgender community, they have not

been given the status to enjoy their rights until the 2014 judgment of
the Supreme Court of India in the case of National Legal Services
Authority vs. Union of India, Writ Petition Civil No. 400 of 2012. It was
only after the referred case that the transgender community was given
the recognition of “third gender” having the right to live with human
dignity in society. Prior to the judgment, the community was always
disregarded, not given an equal position in society and neither were
any equal opportunities available to the community as a whole.
The judgment recognized the term ‘person’ as a gender-neutral term
used in the Constitution and therefore, any sort of denial of rights to
the transgender community, recognized as the third gender would be
violative of Article 14 and 21 of the Constitution of India. This ensured
the right of the community to live a dignified life in society lifting up the
fear of being sexually abused or harassed.

The prohibition of sex discrimination under Article 15

The Constitution of India under Article 15 provides for non-
discrimination of persons on the ground of religion, race, caste, sex or
place of birth, or any of them, by the State. It also states that any
citizen shall not be made liable for any restriction, disability, or liability
on the basis of religion, race, caste sex, or place of birth.

Article 15 clearly prohibits discrimination on grounds of sex but the

Transgender Persons (Protection of Rights) Act, 2019 does not comply
with this Constitutional provision. The basic requirement of the
certificate of identity under Section 5 of the Act, 2019 for the legal
recognition of the particular person as a transgender is a violation of
Article 15 of the Indian Constitution. The provision creates a distinction
between the other sexes and transgenders as there is no requirement
of any certificate of identity by the male or female gender, but only the
transgenders have to fulfill the criteria, thus opposing the basic
objective of Article 15 and creating sex discrimination.

Lack of affirmative action measures across the

employment and education sectors
The Transgender Persons (Protection of Rights) Act, 2019 which is
supposed to protect the interests of the Community of Transgender,
works the other way around on certain legal aspects. Firstly, the Act
was never considered from the point of view of the Community and
was formulated on the basis of existing assumptions about the same.
Thus, the practical approach is lacking in the Act, 2019. This is quite
evident after close scrutiny of the provisions of the Act whereby there
are no provisions regarding the reservation to the community and this
poses a serious threat to their employment opportunities, which can
easily be taken away by the corrupt and rich people of the society. With
changes in the form structure of almost every Employment sector to
include “third-gender” as a part of sexual preference can be considered
to be an affirmative move, but the scenario is the real world goes
contrary whereby the transgenders are not preferred for appropriate
posts after their identity gets revealed.

Further, no specification with regards to the education policies of the

trans people also hovers the bitter truth of a theoretical approach
taken for the formulation of the Act. The revelation of the trans identity
creates a sense of fear within the person to get assaulted or harassed
resulting in mental disturbance. Apart from the lack of laws on
education and employment policies, the Act also does not take into
consideration any rules regarding the marriage of the transgender
community. The provisions for adopting a child by a trans person does
not find its place in the Act, which reiterates that the law has been
made without understanding the needs and requirements of the
community.

The laws on inheritance and property are also not a part of the
Transgender Persons (Protection of Rights) Act, 2019, which embarks
that the Act is not sufficient to protect the interests and rights of the
Transgender people and thus, requires reconsideration.
Legislative amendments
The basis of discrimination met by the transgender community was
never formulated in the Nation, as the Constitution of India provides for
the Right to Equality under Article 14 and also prohibits discrimination
under Article 15. But the non-implementation of the provisions gave
way to various levels of abuses faced by the trans people. This paved
way for formulating stronger and special legislation to protect the
rights of the transgender community. Therefore, the Supreme Court of
India recognized the rights of the Transgender Community considering
them to be the “third-gender” in 2014 with the landmark judgment of
National Legal Services Authority vs. Union of India, whereby the Court
directed the formulation of the legislation of Transgender Persons
(Protection of Rights) Act, which came into effect in the year 2019. Prior
to this legislation, there was no law protecting the rights of the
Community.

Apart from the laws of India, the Universal Declaration on Human

Rights provides the definition of ‘Equality’ under Article 1, providing for
equality amongst human beings. Article 16 of the International
Covenant on Civil and Political Rights confer on every individual a right
of recognition as a person before the law, thus curtailing the
discriminatory factor on any grounds.

Further, in the year 2006, Yogyakarta Principles were formulated by

distinguished human rights experts for regulating laws on sexual
orientation and gender equality, considering the utmost requirement to
remove discrimination met by transgender persons.

Landmark Judgements
National Legal Services Authority v Union of India and others

The rights of the transgender community were recognized as a “third-

gender.” Apart from this recognition, the Central and the State
Government was were asked to regulate the social welfare schemes
and other necessary and required provisions for the protection of their
rights leading to the development of the Transgender Persons
(Protection of Rights) Act, 2019.

Suresh Kumar Koushal and another v NAZ Foundation and other

Section 377 was reinstated by the Hon’ble Supreme Court and it was
held to be constitutionally valid, overturning the decision of the High
Court in the case of Naz Foundation vs. Government of NCT, Delhi.

Need for amendments and new laws

The evolution of the Transgender Persons (Protection of Rights) Act,
2019 has provided a platform for the transgender community to evolve
in the global world and showcase their talents, grab the required
opportunities and make a mark in society. But there are many aspects
that need to be reconsidered while the Act is in play. The penal
provisions for punishing the wrongdoers or the ones involved in
sexually abusing the transgender community are not sufficient to
provide justice to the community. Thus, there needs to be an acute
analysis of the penal provisions to penalize the sexual abusers in order
to provide a safe environment for the transgender community.

Further, the absence of provisions with regards to gender-neutral

washrooms for the community also surfaces the loopholes of the
Transgender Persons (Protection of Rights) Act, 2019 which needs to
reconsidered for the proper protection of the rights of the Community.
Conclusion
The laws need to be the same for every individual of the Nation. Any
sort of discrimination prevailing on the grounds of race, religion, colour,
sex, or any other basis creates a threat to the secular and democratic
structure of the country, which is not welcoming for the Nation.
Undeniably, the community of transgender had been facing an
enormous level of discrimination due to an uncontrollable factor of
their sexual orientation. In spite of legislation prohibiting discrimination
amongst people, the practical scenario differs which tends to create an
imbalance in society, and infringes the basic rights of the transgender
community.

Society needs to accept trans people in order to ensure the proper

implementation of the laws made for the community. The lacunas in
the laws exist because of the tendency of the society to not follow the
rules and regulations which go against their personal interests. Once
this psychology of the human mind finds an escape and makes an
attempt of accepting every genre of people, the lacuna will
automatically disappear, and Article 15 of the Constitution of India will
be rightly upheld, prohibiting any form of discrimination.