‘Is it possible for transgenders to be legal and free?’ - The Daily Guardian
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‘Is it possible for transgenders to be legal and free?’

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Transgender is an umbrella term for persons whose gender identity is different from the sex identities assigned at the time of birth. The meaning of the prefix ‘trans’ is across or beyond and the gender of a person is culturally and socially constructed. From the afore-mentioned meaning of the two terms, it can be construed that the term transgender is beyond the assigned sex identity at the time of birth. To be more specific, it is the opposite of standard forms of sex, i.e., male and female. Sex is in conformity with chromosomes, hormone prevalence, and external and internal anatomy. Gender relates to socially assigned roles of men and women that are set up in the society. People who identify themselves neither as men nor women are in contrast to the socially set up roles of gender. They are considered different by the people who identify themselves as straight men and women. And this is the reason that they are called ‘transgender’.

Transgender people have existed since ancient times. There are various traces of the trans people found in different books, pictures, arts, crafts, works, mythological stories, epics, culture, songs, poems and different other identified and unidentified sources. These sources from the past make clear that transgender people have historical background in various countries all over the world and existed since ages. The phenomenon is not new but is highlighted in all the ages including today. Archaeological and historical studies are continuously making efforts to understand the literature from the remains of past. These studies assist the present researches grow better and reasonable. The surveys conducted by archaeologists are making the transgender studies objective, concrete and empirical. The contribution of historical background cannot be ignored to understand the problems and issues that exist in the society at present. If the issues concerning the origin, problems and behavioral patterns of the trans community are studied from the past, it will help the new researches to be analytical, free of prejudices, scientific, fact-based, observational, logical, data-oriented and statistically examined. This will help in removal of socially constructed patriarchies. History binds, shapes, create and helps in understanding the issues of society. The gender identity related to trans people can be studied through previous researches and interpretations of people in the books, mythologies, epics, incidents and various other forms of art and literature. As per the above-mentioned article of Prof. Whittle, German sexologist Magnus Hirschfeld has used the word ‘transvestite’ in the year 1910. Magnus later developed the Berlin Institute where the very first ‘sex change’ operations took place. The term ‘transsexual’ was not coined until 1949, ‘transgender’ not until 1971 and ‘trans’ (a very British term) not until 1996. For instance, Prof Stephen Whittle has outlined a brief history of transgender issues and highlighted the origin of several terms of transgender vocabulary in an article for The Guardian.

If we look deep into the transgender community and their position in India, this community existed in India even in the Hindu epics of Ramayana and Mahabharata. Trans people have also played an important role during medieval era. Muslim rulers of Mughal Empire in the 15th to 19th centuries were considered patrons of third gender Indians. They were employed to take care of the harems and queens.

Inspite of all this presence of the trans people in the human history, the community faces challenges at different levels in the society. These people have to undergo discrimination at all facets of life. Starting from their homes to the place they work, they only manage to survive with a number of pressing difficulties; the community has to face discrimination at large. Trans people are not treated as normal human beings. They too have basic life processes, including respiration, digestion, urination and excretion. This is somewhat similar to the set categories of sex, i.e., male and female. But unlike the straight people, the community has not been accepted by the regressive society, they are ill-treated and have economic backwardness.

They are alienated from the mainstream of society. This alienation of the trans people from the mainstream is violative of Article 14, 15, 19 and 21 of the Indian Constitution. The fact that they have right to life is not recognized even after several revolutionary judgments by the Supreme Court of India. Trans people are treated as socially unfit and are deprived of the basic fundamental rights. However, these rights should not be only limited to male and female; and should be made accessible for everyone including the trans persons also. The approach of the trans society towards the trans community is regressive and is breaking the constitutional values of equality, liberty and justice. The society should make efforts to protect the rights of dispossessed class of society including the trans people. But, the biased thinking of the so-called straight people is breaking the basic soul of Constitutional values by treating them as different people, making them feel discriminated, restricting their freedom and infringing their right to life and personal liberty. Fundamental rights are the basic to an individual; they are needed for survival and to lead the life. When these basic rights are denied either by legislation or by any social group, nothing can be worse than that.

In general, if a family is not welcoming a transgender child, they go to live with their community. Unlike straight community, they are not given humanitarian behavior by their family. But as per the provisions of the said Act, if a family does not welcome a transgender child to their own family, the Court will decide further the residence and send that child to the rehabilitation Centre. Basically, rehabilitation centers are for getting someone’s life to normally, if a person has become abnormal due to any kid of disease, accident or situation. Now the question that arises here is: Are transgender people abnormal? The idea against the argument is that the day they are considered as abnormal species, they are included in the category of abnormal human beings and so they are discriminated by the society. They breathe like normal human beings; their basic life processes are similar to the straight community. They eat, breathe and lead their lives. The legislation is showing that they are abnormal beings and thus creating differences among the human beings.

This segregation of the trans people, though a product of patriarchally hegemonistic social structure, has been normalized. This normalization of the alienation of the transgenders has been perpetrated by the ideological institutions of society such as family, marriage, university, film, literature, etc. Through these propagandist tools, straight people have been regarded as the standard, while the trans population has been scoffed at, ridiculed, and relegated to the peripheral subaltern positions. This otherization of the trans has encompassed every point of the human society. It has been culturally transmitted to the succeeding generations and it is almost impossible to shatter this canonized hierarchy of heterosexual binary of males and females. Anything that goes against the fixed notion of sex binaries has been sidelined as something irreligious and blasphemous.

Despite this coerced normalization of the transgenders segregation some bright light is entering the dark chambers of the stratified social structure. French legal system has maintained humanitarian aids to trans people upto some extent. It can be noted that adoption by a single individual is permitted in France. Civil rights are basic for any democracy, and opening up the possibility of adoption by a single homosexual can be called a revolutionary step. European Court of Human Rights opined that it will not be reasonable to advance the treatment regarding the applicant’s sexual orientation as it would amount to discriminatory practices.

Under the laws of United Kingdom, lesbian, gay, bi and trans people are protected from discrimination. Equality Act, 2010 provides provisions that an adoption agency must assess the trans person fairly using the same criteria as is designed for the straight male and female community. The authorities could not turn down the application for adoption based on their sexuality.

Not only this, marital rights to trans community also exist in some countries. The case of Corbett v. Corbett is the genesis of all transgender marriages since 1970. In the case of MT v. JT, MT male had a vagina and was able to function sexually as a female. Thereby, she was legally recognized as a female for the purpose of marriage. Considering the judicial pronouncements by Australian Courts, marriage between female to male transgender individual and his wife , a biological female was affirmed valid.

In the backdrop of the marital and adoption rights given to the trans population internationally, Indian courts and judicial system are also democratizing the phenomenon more specifically. It is providing humanitarian aids to trans people. The Preamble of our Constitution talks of ‘liberty’, ‘equality’, ‘justice’, ‘fraternity’ to all the people living in the India, ‘a sovereign, socialist, secular, democratic, republic’. The same principles have been taken into consideration by Part III of Indian Constitution, i.e., fundamental rights including Right to Equality, Prohibition against discrimination, right to life and personal dignity and the right to freedom, etc. These fundamental rights exist but the legislations and various norms of societies are not in consonance with the same. There are issues for which there is no legislation even today. Laws are made to govern the society and regulate it. They give power to the weaker and voiceless sections of society. Any kind of absence in the legal provisions may result in the patriarchal systems of our society and this may lead to power centric rule of male dominance.

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Legally Speaking

A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court

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The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.

when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.

when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.

While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.

On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.

The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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