W.P. No. 587 of 2014 and M.P. Nos. 1 and 2 of 2014. Case: Nangai Vs Superintendent of Police. High Court of Madras (India)
| Case Number | W.P. No. 587 of 2014 and M.P. Nos. 1 and 2 of 2014 |
| Counsel | For Appellant: Ms. Kiruba Munusamy, Adv. and For Respondents: P.H. Arvind Pandian, Additional Advocate General, Assisted by R. Rajeswaran, Special Government Pleader, K.M. Vijayan, Senior Counsel and P. Wilson, Senior Counsel/Addl. Solicitor General of India, for Amicus Curiae |
| Judges | S. Nagamuthu, J. |
| Issue | Constitution of India - Articles 14, 15, 16, 16(2), 19, 19(1)(a), 21 |
| Citation | 2014 (2) LLN 511 (Mad), 2014 (4) MLJ 12 |
| Judgement Date | April 17, 2014 |
| Court | High Court of Madras (India) |
Order:
S. Nagamuthu, J.
1. What is 'Sex' and 'Gender'? In the Indian context, "who is a 'male' and who is a 'female'?" Is it a sin to be born as a 'Transsexual'?" "Would it not be violative of Articles 14, 15, 16, 19 and 21 of the Constitution of India to deny employment to a transsexual?" The petitioner herein identifies herself as a female. But, the police department has terminated her from service by labelling her as a "Transgender". Before proceeding further, let me caution myself that anything said in this order should not have, even remotely, a semblance of tendency to hurt the feelings and sentiments of the transsexuals. I make it clear that every observation made and every conclusion arrived at in this order is only for the limited purpose of deciding the issues involved in this writ petition. This is neither a research paper nor a thesis concerning all the issues of the transsexuals. This order is confined only to the legal status of the petitioner's sex.
2. None, at the time of the birth of the petitioner as a female child, would have anticipated that after 24 years she would be discarded and humiliated by labelling her of a different sex. She was born on 26.08.1989 in a private Hospital in Ariyalur District. In the contemporaneous medical records, it was recorded that she was a female child. In the Birth Register, her birth was registered on 29.08.1989 as a female under the provisions of "The Registration of Births and Deaths Act, 1969". She was named after a female. She was recorded as a female in the family card, census record and in all the other Government records. She joined a Girl's Elementary School, then in a Girl's Higher Secondary School and lastly in a Women's College. In all the records in the Schools, College and the University, she was recorded as a female. She was known and fully recognized by the society as a female. Her gait, get-up, gesture and demeanour were all that of a female. The society did not doubt her sex at all. She actively participated in sports activities for women. She won a number of medals and prizes in various sports events as detailed below:
3. In the year 2010, she came out of the College with flying colours as a Graduate in Bachelor of Science (Physical Education).
4. "The Tamil Nadu Uniformed Services Recruitment Board, Chennai", conducted selection process for direct recruitment to the post of Grade II Police Constable (Women) for the year 2009-2010. The petitioner applied for the same. She emerged successful in the selection process. She was selected by the Board and allotted to Karur District. The Superintendent of Police, Karur District issued an order of appointment by his proceedings in Na. Ka. No. A2/24481/2010 dated 18.01.2011. She was directed to report on 31st January 2011 in the "Police Recruit School" at Vellore. Accordingly, she commenced her training on 01.02.2011.
5. While she was undergoing training, the Principal, Police Recruit School, Vellore, deputed all the Women Recruit Police Constables including the petitioner to the Government Hospital and Medical College, Vellore for medical check up. The petitioner appeared for the medical check up on 22.03.2011 and 23.03.2011. Here started her agony.
6. On examination, the medical officer made a remark in the Out Patient slip of the petitioner as "TRANS GENDER". The said medical officer further opined that the petitioner should undergo Endocrinological examination for Genetic study (Sex determination) at Government Hospital, Chennai. Accordingly, the petitioner was sent to the "Rajiv Gandhi Memorial Government General Hospital, Chennai", on 10.05.2011 for Endocrinological and Chromosome studies for biological sex evaluation. She was subjected to various medical procedures/check up on 10.05.2011. Blood sample was taken from her at Egmore Maternity Hospital for Chromosome Test. After these medical examinations, the Professor and Head of the Department of Urology, Madras Medical College and Rajiv Gandhi Government General Hospital, Chennai, in his report dated 02.07.2011 made the following observation:
1. This person's chromosomal study showed male pattern - 46XY.
2. External genitalia is ambiguous with both gonads seen descended.
Diagnosis:
Disorder of Sexual Differentiation
Partial Androgen Insensitivity Syndrome
Male Pseudohermophrodism
Based on the above opinion of the Urologist, the Chairman, Medical Board, Government Vellore Medical College Hospital in his report dated 26.08.2011 observed as follows:
She is a Trans Gender by birth.
7. In the mean while, the petitioner had to be on medical leave for a total period of about 121 days in eight spells. From 26.07.2011, according to the respondents, she did not participate in the training whereas, according to the petitioner, she was not allowed. While so, on the report of the Principal, Police Recruit School, Vellore, the Director General of Police, by his proceedings in Na.Ka. No. 420/16352/Appointment. 1(1)/11 dated 25.11.2011 directed the Principal, Police Recruit School, Vellore, to issue a show cause notice citing the following:
(i) Failure to disclose that the applicant is a trans gender and appearing under Women Quota concealing this fact.
(ii) Failure to take part in final exam and pass.
(iii) Unauthorised absence from _____ to____.
8. Based on the same, the Principal, Police Recruit School, Vellore by his proceedings in Na.Ka. No. D3/2638/2011 dated 28.12.2011 requested the Superintendent of Police, Karur District, who is the appointing authority, to take further action. The Superintendent of Police, Karur District, by his proceedings in Na.Ka. No. A4/14591/2012 dated 11.07.2012 issued a show cause notice calling upon the petitioner to explain as to why she should not be terminated from service. The petitioner duly submitted her explanation also. Ultimately, the Superintendent of Police, Karur, by his proceedings in Na.Ka. No. 14591/2012 dated 08.04.2013, terminated the petitioner from service on the aforesaid grounds. Challenging the same the petitioner is before this court with this writ petition.
9. This writ petition came up for admission on 08.01.2014 on which date, the learned Government Advocate took notice for the respondents. The matter was adjourned for few hearings at his request. When it came up for hearing on 21.03.2014, since the records had not been produced by the Superintendent of Police, Karur District, as directed earlier, and on considering the seriousness of the allegations made, which prima facie appeared to the court to have caused infringement of her fundamental rights guaranteed under Article 21 of the Constitution of India, this court was forced to issue a direction to the learned Special Government Pleader to ensure that the original records were before this court on 24.03.2014. The Superintendent of Police, Karur District, was directed to file counter also. Accordingly, on 24.03.2014, the then Superintendent of Police, Karur District, appeared and produced the original files. The learned Additional Advocate General Mr. P.H. Arvind Pandian argued on behalf of the State defending the impugned order. The argument remained inconclusive. The matter was further adjourned.
10. The Superintendent of Police, Karur District, thereafter, filed his counter on 02.04.2014. After having gone through the counter and having considered the plight of the petitioner and the complex legal issues involved in this matter, this court requested Mr. K.M. Vijayan, the learned Senior Counsel and Mr. P. Wilson, the learned senior counsel/Additional Solicitor General of India, to assist this court as Amicus Curiae. The matter thereafter came up for hearing on 10.04.2014 and again finally on 11.04.2014.
11. In the counter affidavit filed by the 1st respondent it is contended that since the petitioner was medically declared as a Transgender and since the petitioner did not disclose that she is a transgender, she was terminated from service as she is not eligible for appointment as Woman Police Constable.
12. I have heard Ms. Kiruba Munusamy, the learned counsel for the petitioner and Mr. P.H. Arvind Pandian, the learned Additional Advocate General for the respondents and Mr. K.M. Vijayan, the learned senior counsel and Mr. P. Wilson, the learned senior counsel/Additional Solicitor General of India, acting as Amicus Curiae. I have also gone through the records.
13. In this Writ petition, the following core questions have arisen for consideration:
(1) Whether the petitioner is a "female" and whether she is eligible for appointment as a "Woman...
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