Granting relief to a Jalgaon-based transgender, whose nomination to contest gram panchayat elections was rejected by the returning officer (RO), the Aurangabad bench of the Bombay High Court last week said the candidature should be allowed as the person had opted for the female gender in her nomination form.
A single judge bench of Justice Ravindra V Ghuge on January 2 passed the order on a petition filed by the 42-year-old candidate who seeks to contest from Jalgaon district. The court noted that the petitioner, “undisputedly” a transgender, was aggrieved by the rejection of her nomination form by the RO through an order on December 31, 2020.
The petitioner had decided to choose the female gender and hence, had tendered her nomination form for contesting the election from a ward reserved for women in general category. However, the RO rejected the same stating that the petitioner is a transgender and there is no reservation for the community in village panchayat elections.
Advocate A P Bhandari, appearing for the petitioner, while challenging the December 31 order said that this is the first occasion wherein the candidate had opted for the “right to a self-perceived gender identity” and has selecting the female gender for all purposes during her lifetime.
Maintaining that her nomination form should be considered, Bhandari told the court that the petitioner shall not switch over to the male gender under any circumstances in the future.
Additional Government Pleader S B Pulkundwar and advocate A B Kadethankar, appearing for the Maharashtra government and the state election commission, respectively, said that they would not make submissions contrary to the precedent laid down by the Supreme Court in the 2014 National Legal Services Authority vs Union of India case, when it had directed the Centre and states to formulate welfare schemes for transgenders and grant their gender legal recognition such as male, female or third gender.
Justice Ghuge observed, “It is quite apparent that the Returning Officer was handicapped in so far as the knowledge of law was concerned, while deciding the fate of the nomination form of the petitioner.” The bench, while quashing and setting aside the December 31 order, ruled, “Since the nomination form of the petitioner is otherwise complete in all respects, the same stands accepted and she is permitted to contest the election from the ward and category, which she has opted for.”
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