Introduction

Every democracy provides the rights to vote to its citizens so that it can equally contribute to decision making. The right was first with men only, then in the present century, it came to female. Now every citizen including a transgender in India has the right to vote.

Voting Rights in India: Constitutional Imperative

The Indian constitution gives equality as a fundamental right to every citizen. This also includes the right to vote. Following are the constitutional provisions in this regard:-

• Article 14 of the Constitution of India 1949 enunciates equality before the law. It says:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.

• Article 15 of the Constitution of India 1949 provides no prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
• Article 326 of the Constitution Of India 1949 provides the right to vote to every citizen of India. It states “Elections to the House of the People and to the Legislative Assemblies of States to be based on adult suffrage. The elections to the House of the People and the Legislative Assembly of every State shall be based on adult suffrage, but is to say, every person who is a citizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election”

Voting Rights and Law

Various laws have been laid down under the Constitution to give equal right of vote. A voter is a citizen whose name is in the electoral roll of the constituency.

• The Citizenship Act, 1955: Section 2 on Interpretation subsection (b) on “citizen” in relation to a country specified in Schedule I, means a person who, under the citizenship or nationality law for the time being in force in that country, is a citizen or national of that country;
• The Representation of the People Act, 1951: Section 2 on Interpretation subsection (e) defines “elector” in relation to a constituency as a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950);

Transgender Voting Rights In India: National Legal Services Authority Judgment

• The Supreme Court in April 2014 recognized hijras, transgender people, eunuchs, and intersex people as a ‘third gender’ in law. This was done by the Supreme Court of India in the landmark case of National Legal Services Authority vs Union Of India & Ors on 15 April 2014. The Author was J. A Sikri and the bench consisted of J. K.S. Radhakrishnan and J. A.K. Sikri.
• Apart from many other issues, it was brought before the Court that in 2003, the Hon`ble High Court of Madhya Pradesh upheld the order of an Election Tribunal which nullified the election of a Hijra, Kamala Jaan, to the post of Mayor of Katni, on the ground that it was a seat reserved for women and that KamlaJaan, being a ‘male’ was not entitled to contest the seat.
• Plaintiff submitted that all the citizens of India have a right to vote and to contest elections. But in the electoral rolls, only two categories of sex are mentioned – male and female. This is unfair to the third sex of India as they are deprived of their statutory right to vote and contest elections.

JUDGMENT

• After considering the entire issue the following broad judgement was given:-

1. 1. 129. We, therefore, declare:

(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 self-identified 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 the third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens 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-surveillance Centres since Hijras/ Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social 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 regain their respect and place in the society which once they enjoyed in our cultural and social life.

• This ensured equal treatment by Governments for all matters relating to transgender including voting rights. The Court also discussed the Report of the Ministry of Social Justice and Empowerment.

• It may be recalled that the Ministry of Social Justice & Empowerment has been dealing with matters relating to Transgender Persons with effect from July 2012. However, the work relating to Transgender Persons was allocated to this Department under the Allocation of Business Rules in the month of May 2016.

• An Expert Committee was constituted to make an in-depth study of the problems being faced by the Transgender Community. The Committee has submitted its report on 27th January 2014, suggesting various measures to ameliorate the condition of transgender persons.

• The Expert Committee has recommended that “Ministry of Social Justice & Empowerment may set up a Standing Coordination Mechanism in the form of an Inter-Ministerial Committee for coordinating the welfare activities being undertaken by the various Ministries and State/UT Governments for transgender community comprising representatives of concerned Central Govt. Ministries and representatives of State Governments.” Accordingly, an Inter-Ministerial Committee has been constituted to discuss these issues. To date, four Inter-Ministerial meetings have been conducted.

• Some of the initiatives have also been taken by the Government of India in this regard like enrolment of the transgender community in the Voter’s list by the Election Commission of India. There is no prohibition against transgender persons for contesting election to the Parliament or State Legislature. Besides, the Registrar General of India, during the Census year 2011 had given the option of “other” for enrolling the persons who did not wish to be recorded as either male or female. UIDAI has also provided an option of “T” for transgender. However, many issues are still to be addressed.

• Based on the Supreme Court direction, the Ministry came out with an Act called The Transgender Persons (Protection of Rights) Act, 2019 on DECEMBER 05, 2019. It provided transgender’s equal rights in many respects.

• Section 3 of the Act says that “No person or establishment shall discriminate against a transgender person on any of the following grounds, namely:—

(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office;

• This Act gives Transgenders the right to contest elections and also vote when read with the Representation of the People Act, 1951.

• The matter was further clarified by the Election Commission of India to the J & K High Court.

• Jammu & Kashmir High Court – Srinagar Bench in the case of Aijaz Ahmad Bund And Others vs State Of J & K And Others on 3 June 2019 noted that-

“We are informed by Mr S. A. Makroo, learned counsel appearing on behalf of Election Commission of India that steps to recognize the transgenders in the records of the Election Commission of India and to enable them to exercise their right to vote have been taken. He further submits that he has received the status report in this regard from the Election Commission of India just today and prays for leave to place the same on record.”

Transgender Voting Rights and the World

• Nepal, Pakistan and Bangladesh have all legally accepted the existence of a third gender, with India, Pakistan and Nepal including an option for them on passports and certain official documents.
• US transgenders are facing challenges to vote due to strict ID Card laws.
• EU is unclear on transgender rights despite the European Parliament adopting a resolution on transgender rights as early as 1989. However, the case law of the European Court of Justice provides some protection by interpreting discrimination on the basis of ‘sex’ to also refer to people who have had ‘gender reassignment.
• Japan is working towards equal rights for the LGBT community. Human Rights Watch is among 116 organisations to have signed a letter calling for Japan to draft and pass an anti-discrimination bill on the basis of sexual orientation or gender identity prior to the rescheduled Tokyo 2020 Olympic and Paralympic Games.
• Most countries have to enact laws for equal rights for the LGBT community.