Tragedy in society’s blindness, not their birth: Madras High Court on plight of transgender persons

The Madras High Court recently directed the Tamil Nadu government to formulate a comprehensive rehabilitation scheme for transgender persons, focusing on self-employment, sustainable livelihood, and their meaningful inclusion in society [Sarathkumar Vs State]..Justice KK Ramakrishnan passed the order while dealing with an anticipatory bail plea linked to a YouTube video about an incident where a transwoman set herself on fire at a police station.The tragic incident of self-immolation shocks judicial conscience, Justice Ramakrishnan said. Members of the transgender community continue to face entrenched social stigma, resulting in the deprivation of basic dignity and meaningful livelihood opportunities, he noted."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 marginalization such as being driven to beg on the streets or to engage in activities inconsistent with societal norms merely to secure their livelihood, thereby deepening their vulnerability. There is total failure of society's collective conscience to embrace diversity with empathy," the Court further observed..Transgender persons are also children of god... the tragedy is not in their birth, it is in the blindness of society... It is no part of judicial function to sit in theological judgment over the CreatorMadras High Court.The Court emphasised that transgender persons are also children of god."They are entitled to be accepted as equals, as members of families, as participants in the common destiny of this nation. It is no part of judicial function to sit in theological judgment over the Creator ... The absence of patience and tolerance in society cannot be a ground to deny them dignity," the Court added..The Court went on to observe that the present plight of transgender persons reflects a collective societal failure to uphold basic values of empathy, equality, and fraternity. It found that there has been a continuing failure to implement the Supreme Court’s for the welfare of transgender persons, in National Legal Services Authority v. Union of India (2014).To remedy such injustices, the Court opined that it needs to issue directions to the State 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."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. Charter of human dignity obligates this Court to intervene where society has faltered," it opined. The Court, therefore, ordered the framing of a Taluk level rehabilitation scheme for transgender persons. The State's Chief Secretary has been directed to coordinate across departments and ensure the implementation of such welfare measures, with a compliance report to be filed by July 26..The case before the Court concerned a YouTuber who was booked in a criminal case for circulating a video that referred to the self-immolation of a transwoman at a police station. According to reports, she set fire to herself to protest the detention of two other trans persons. The police reportedly claimed that the two were brought to the police station for counselling after complaints were received of their allegedly blocking traffic while demanding money from the public. The prosecution alleged that a video uploaded by the accused YouTuber falsely suggested that police had been targeting transgender persons and collecting their details based on complaints of coercive money collection, leading to injustices against transgender persons.Apprehending arrest, the YouTuber moved the High Court for anticipatory bail. He contended that he had merely retransmitted already available content, but had removed the video upon realising its impact.After viewing the material, the Court found that the allegation was only about a video that merely retransmitted content that was already in the public domain. It, therefore, granted the YouTuber anticipatory bail subject to conditions..The YouTuber was represented by Advocates Thayumanasundaram and K Bhuvaneshwaran..The State was represented by Government Advocate (Criminal Side) P Kottaichamy..[Read Judgment]