‘Tragedy is society’s blindness’: Madras High Court asks state to correct ‘historical wrongs’ against trans community

The court also highlighted the plight of the trans community, saying, “Transgender persons are not strangers to our social fabric and the tragedy is not in their birth, it is in the blindness of society which, by exclusion and prejudice, has driven them into conditions of extreme marginalisation such as being driven to beg on the streets or to engage in activities inconsistent with societal norms merely to secure their livelihood and thereby deepening their vulnerability and there is total failure of society’s collective conscience to embrace diversity with empathy.”

Justice Ramakrishnan’s April 24 order further issued directions to the state government to “undo, as far as possible, the historical wrongs inflicted upon transgender persons and to secure for them a life of dignity, equality, and meaningful inclusion, integration as equal participants in the social order, and
to alleviate their cosmic sadness”. 

Transgender persons are not strangers to our social fabric, and the tragedy is not in their birth, it is in the blindness of society, Justice K K Ramakrishnan said.

Trans community faces social stigma: Court

• The court cannot remain oblivious to the tragic incident of self-immolation, which shocks the judicial conscience.
• The trans community still struggle to fight the entrenched social stigma that results in deprivation of their basic dignity and livelihood opportunities.
• Transgender persons are not strangers to our social fabric, and the tragedy is not in their birth; it is in the blindness of society.
• The society, with its prejudice of excluding them, has driven them into conditions of extreme marginalisation, such as being driven to beg on the streets or to engage in activities inconsistent with societal norms merely to secure their livelihood.
• Their vulnerability and struggle are a total failure of society’s collective conscience to embrace diversity with empathy.
• The court said that the creator is not the one to be blamed, to evade human responsibility.
• Humans cannot invoke god to evade their responsibility and accountability towards the trans community, and society’s lack of tolerance cannot be the ground to deny people dignity.
• Transgender people deserve to be treated equally, as members of families, and an integral part of the nation, and not to be given theological judgments over the creator by the judiciary.

Noting the need for the judiciary to step up, the court observed that “Where society has failed to cultivate tolerance, compassion, and fraternity, and instead seeks to deflect responsibility, this court cannot be a mute witness to the indignities suffered by a vulnerable class.”

The court, with deep anguish and profound interest, said that these conditions reflect the collective societal failure to uphold the basic values of empathy, equality, and fraternity.

Expressing deep sorrow in citing the inadequacy in delivering justice and prevailing socio-economic conditions of transgender persons, the court issued directions to the State Government to formulate a comprehensive rehabilitation scheme for transgender persons, ensuring avenues for self-employment and sustainable livelihood and to restore dignity. 

Additionally, the court directed the government to ensure the inclusion of transgender persons in society, along with necessary welfare schemes tailored to their specific needs.

Direction to Tamil Nadu Government

• The court, acting under constitutional duty to deilver justices, directed the Tamil Nadu Government to take appropriate steps to correct the historical wrongs inflicted upon the trans community.
• The aim was to restore the dignity infringed by the ongoing injustices.
• The direction sought to secure them a life with dignity, equality and meaningful inclusion.
• The court asked the state to include them in society and grant them equal economic opportunities, education, healthcare, and essential services.
• The court emphasised that trans persons deserve to be treated with dignity and respect, and the goal should therefore be to make trans persons self-reliant. 

The aforementioned directions were given to the state by the court to alleviate the struggles that the trans community faces and to frame and implement effective social welfare measures to enable themselves to attain full development and be brought into the mainstream of society.

Arguments

• Advocate Thayumanasundaram for the petitioner submitted that the petitioner had merely retransmitted the content and that the message did not originate from him. 
• It was contended that no incriminating material was found in the said transmission. 
• Submitted that upon becoming aware of the contents, the petitioner had immediately removed the video and prevented its further dissemination.
• Opposing the petitioner’s contentions, Advocate P Kottaichamy for the state submitted that the petitioner had propagated false information against the police and the government, creating a misleading impression that the grievances of the transgender community were not addressed by the authorities. 
• It was argued that there were serious allegations against certain members of the transgender community regarding illegal extraction of money from the public through intimidation.

Youtube video

• The petitioner was a YouTuber and allegedly published a video on digital media concerning an incident of self-immolation by a transgender individual within the precincts of a police station.
• The petitioner projected that the police allegedly had collected details of transgender persons based on complaints that they were extracting money from the public through coercive means.
• The petitioner said that the incident was not adequately reported in mainstream media, resulting in injustice to the transgender community. 
• Based on the said video, the respondent police registered a case against the petitioner for an offence under Section 353 (statements conducing to public mischief) of the Bharatiya Nyaya Sanhita (BNS).

“The continued inaction on the part of the State undermines the mandate of Articles 14, 15, 16 and 21 of the Constitution of India, which guarantee equality, non-discrimination, equal opportunity, and the right to live with dignity,” the Madras High Court said.

Releasing the YouTuber on anticipatory bail, the court directed the State Government to coordinate with all relevant departments to ensure effective and time-bound implementation of the comprehensive rehabilitation scheme for transgender persons, the order noted on April 24.