While fully, firmly and finally upholding the legal rights of transgender on parity with those of others, the Orissa High court on May 20, 2022 has in an extremely laudable, learned, latest and landmark judgment titled Kantaro Kondagiri @ Kajol vs State of Odisha and Others in W.P. (C) No. 4779 of 2022 in the matter of an application under Articles 226 and 227 of the Constitution of India and cited in 2022 LiveLaw (Ori) 90 has ordered grant of family pension to a transwoman who was allegedly discriminated on the basis of her gender while allowing pensionary benefits after the death of her parents. Without mincing any words, the single Judge Bench of Justice Aditya Kumar Mohapatra held that, “…this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon’ble Apex Court in NALSA’s case (supra) and as such the law laid down by the Hon’ble Supreme Court is binding on all.”
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Justice Aditya Kumar Mohapatra sets the pitch in motion by clearly putting forth in para 1 that, “This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).”
“The present writ petition has been filed by the petitioner with a prayer for a direction to the opposite parties to sanction family pension in favour of the petitioner, who is a transgender (women) and unmarried daughter of late Balaji Kondagari within a stipulated period of time.”
So far Rule 56(1) Odisha Civil Services (Pension) Rules, 1992 is concerned, the same provides for pension to specific class of family members of deceased Government employee entering into Government service and was holding a post in a pensionable establishment on or before 01.01.1964 and family pension to specific class of family members of the deceased Government servant, who was a Government servant and retired / died on or before 31.12.1963. Further the Pension Rules, 1992 under Rule 56(5)(d) provides that family pension is also payable in case of any unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that the monthly income of the daughter does not exceed Rs.4,440/- per month from employment in Government, semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.”
since the petitioner belongs to transgender community, the authorities are treating the petitioner in a discriminatory manner and not sanctioning the family pension as is due and admissible to her after the death of her parents. He further submits that such conduct of the authorities are in gross violation of the pension rules as provided under rule 56(5)(d) which states that in case of an unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that the monthly income of the daughter does not exceed four thousand four hundred and forty per months from the employment in Government, Semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.”
As we see, the Bench then mentions in para 9 that, “In course of argument, learned counsel for the petitioner relies upon the judgment of the Supreme Court of India in the case of NALSA vrs. Union of India : reported in (2014) 5 SCC 438 wherein the Hon’ble Supreme Court of India has recognized the right of the transgender community as citizens of the country at par with other citizens. It is alleged by learned counsel for the petitioner that the petitioner has been treated in a way which is in violation of Articles 14 and 21 of the Constitution of India.”
In the judgment of the Hon’ble Supreme Court in NALSA vs. Union of India (supra), has observed that Article 1 of the Universal Declaration of human rights, 1948, states that all human being are born free and equal in dignity and rights. Article 3 of the Universal Declaration of Human Rights states that everyone has a right to life, liberty and security of person. Article 6 of the International Covenant on Civil and Political Rights, 1966 affirms that every human being has the inherent right to life, which right shall be protected by law and no one shall be arbitrarily deprived of his life. Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, 1966 provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment/ punishment. Further it has also been observed in the aforesaid judgment with reference to Paragraph-21 of the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (dated 24.01.2008) specifically deals with protection of individuals and groups made vulnerable by discrimination or marginalization. Para-21 of the Convention states that State are obliged to protect from torture or ill-treatment all person regardless of sexual orientation or transgender identity and to prohibit, prevent and provide redress for torture and ill-treatment in all contests of State custody or control. Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights state that no one shall be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence.” The aforesaid principles have been adopted by many countries including India. Further, the above referred principles adopted by many countries are aimed to protect human rights of transgender people since it has been noticed most clearly that transgenders/transsexuals often face serious human rights violations, such as harassment in workplace, hospital, places of public conveniences, marketplaces, theatres, railways stations, bus-stands and so on.
In the aforesaid reported judgment of Hon’ble Supreme Court of India in the case of NALSA (supra), the Hon’ble Supreme Court has also analyzed Article-14 vis-à-vis rights of transgender in India in Paragraph61 of the judgment reported in (2014) 5 SCC 438, which is quoted herein below:-
“61. Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word “person” and its application only to male or female. Hiraj/transgender persons who are neither male/female fall within the expression “person” and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.”
Most explicitly, the Bench then states in para 11 that, “Further in the context of discriminatory and arbitrary treatment meted out to transgender citizen of India, the Hon’ble Apex court in paragraph-67 in the case of NALSA vrs Union of India (supra) has observed as follows:-
“67. TGs have been systematically denied the rights under Article 15(2), that is, not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, culture and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.”
Lamentably, the Bench then laments in para 11 that, “Further in the context of discriminatory and arbitrary treatment meted out to transgender citizen of India, the Hon’ble Apex court in paragraph-67 in the case of NALSA vrs Union of India (supra) has observed as follows:-
“67. TGs have been systematically denied the rights under Article 15(2), that is, not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, culture and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.”
Most significantly, the Bench then aptly points out in para 12 that, “In the context of the right of a person to have the gender of his/her choice, the Hon’ble Supreme court in the case of NALSA (supra) in paragraph-106 has observed as follows:-
“106. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set-up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspect of self-determination, dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.”
No less significant is what is then stated in para 13 that, “After analyzing the factual scenario and the law both the International and India, the Hon’ble Supreme Court of India in paragraph-135, which contains the declaration of law relating to the transgender in India, specifically in 135.2, which is relevant for the purpose of the present case has been quoted herein below:-
“135.2 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 third gender.”
Finally and far most significantly, the Bench then concludes by holding in para 16 that, “In view of the aforesaid factual position and the analysis of law laid down by the Hon’ble Supreme Court of India and taking into consideration the submissions made by the respective parties, this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon’ble Apex Court in NALSA’s Case (supra) and as such, the law laid down by the Hon’ble Supreme Court is binding on all. Therefore, the present writ petition filed by the petitioner deserves to be allowed and the same is hereby allowed. The Principal Accountant General (A&E), Odisha, Bhubaneswar (Opposite Party No.5) is directed to process the application of the petitioner as expeditiously as possible preferably within a period of six weeks from the date of communication of certified copy of this order. The Opposite Party No.5 is further directed to immediately calculate, sanction and disburse the family pension as is due and admissible to the petitioner within the aforesaid stipulated period of time. Accordingly, writ petition is allowed. However, there shall be no order as to cost.”
In sum, the Orissa High Court has made it indubitably clear that transgender has every right to choose gender. The Court also deserves due credit rightly for ordering the family pension to be given to the transwoman who was being earlier denied the same. There can certainly be just no denying it!
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