Access to justice - In Anita Kushwaha v. Pushap sudan, the Supreme Court held access to justice a facet of rights guaranteed under Article 14 and 21 of the Constitution. The following are the main four facets that constitute the essence of access to justice.
1. The State must provide an effective adjudicatory mechanism;
2. The mechanism so provided must be reasonably accessible in terms of distance;
3. The process of adjudication must be speedy;
4. The litigant's access to the adjudicatory process must be affordable.
Hijras and transgenders are the persons entitled to legal protection - In National Legal Services Authority v. Union of India, the Supreme Court has held that Article 14 does not restrict the word 'person' and its application only to male or female and Hijras/transgender persons who are neither male nor female fall within the expression 'person'. They are entitled to legal protection of laws in all spheres of State activity including employment, health care, education as well as equal civil citizenship rights, as enjoyed by any other citizen of this country. The expression 'sex' under Articles 15 and 16, therefore, includes discrimination of the ground of gender identity. The expression "sex" is not limited to bilogical sex of male or female but intended to included people who consider themselves to be neither male nor female. Transgenders have been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. They are also entitled to reservation in the matter of appointment under Article 16(4). State is bound to take affirmative action to give them due representation in public services.
Article 14 has used the expression "person". Article 15 has used the expression "citizen" and "sex", so also Article 16. Article 21 has used the expression "person". These expressions which are "gender neutral" evidently refer to "human beings". Hence, they take within their sweep Hijras/transgenders and are not as such limited to male or female gender.
The Court made the following declaration:
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 selfidentified 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 Government to take steps to treat them as socially and educationally backward classes of citizen 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-survellance Centre since Hijras/Transgenders face several sexual health issues.
5. Centre and State Governments should seriously address the problems being face by Hijras/Transgenders such as fear, shame, gender dysphoria, socual pressure, depression, suicidal tendencies, socual 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 resign their respect and place in the society which once they enjoyed in our cultural and social life.
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
The transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot.
2(k) "Transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-women (whether or not such peson has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, aravani and jogta.
Sec 3 Prohibition against discrimination - No person or establishment shall discriminate against a transgender person on any of the following grounds, namely:-
a. the denial, or discontinuation of, or unfair treatment in, educational establishments and services thereof;
b. the unfair treatment in, or in relation to, employment or occupation;
c. the denial of, or termination from, employment or occupation;
d. the denial or discontinuation of, or unfair treatment in, healthcare services;
e. the denial or discontinuation of, or unfair treatment with regard to, access to, or provision of enjoyment or use of any goods, accomodation, service, facility, benefit, privilege or opportunity dedicated to the use of general public or customarily available to the public;
f. the denial or discontinuation of, or unfair treatment with regard to the right of movement;
g. the denial or discontinuation of, or unfair treatment with regard to the right of reside, purchase, rent, or otherwise occupy any property;
h. the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office; and
i. the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custofy a transgender person may be.
Sec 9: Non - descrimination in employment - No establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues.
Conclusion: In conclusion, the principle of access to justice, as articulated by the Supreme Court in *Anita Kushwaha v. Pushap Sudan*, underscores the State's obligation to provide an effective, accessible, speedy, and affordable adjudicatory mechanism. Simultaneously, the landmark judgment in *National Legal Services Authority v. Union of India* reinforced the inclusivity of constitutional protections, recognizing Hijras and transgender individuals as equal beneficiaries of rights under Articles 14, 15, 16, and 21 of the Constitution. By affirming their legal recognition and mandating affirmative action, the Court has paved the way for societal transformation.
The Transgender Persons (Protection of Rights) Act, 2019, further institutionalizes these principles, prohibiting discrimination in critical areas such as education, employment, healthcare, and housing, and ensuring equality in public and private spheres. This legal framework is a vital step towards addressing historical injustices and ensuring dignity, social inclusion, and equal opportunity for transgender persons. However, the realization of these rights depends on robust implementation and a sustained commitment to creating an equitable and inclusive society where all individuals, irrespective of their gender identity, can thrive without fear or prejudice.
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