Empowering Minorities and Transgender through reform in Legal, Social and Economic Institutions
Introduction-
“INDIA is the cradle of the human race, the birthplace of human speech, the mother of history, the grandmother of legend and the great grandmother of tradition. Our most valuable and most instructive materials in the history of man and treasured up in India only.”- Mark Twain
India has always been known for its great culture, tradition, values, morals and history. But it is also the home to inequality and suppression of the underprivileged classes by the privileged or the upper classes. India continued to witness such a situation for past five thousand years, and the greatest during the British rule. To curb this menace and to provide an equal opportunity to all people in the society, equality and upliftment was the need of the hour. The framers of the Indian Constitution made this dream a reality by incorporating the principle of ‘Equality before Law’ i.e. Article 14 in the Constitution. They were elated after incorporating this principle and thought that their dream had been realized. They were of the view that India would no longer be a land of discrimination.
The reality is quite different. It is the opposite of what was dreamt of by Mahatma Gandhi and Dr. Bhimrao Ambedkar. Even after 72 years of independence, India struggles to achieve equality. Inequality, exploitation and marginalization still prevail everywhere in India. Some sections of the society are marginalized and face discrimination at the hands of the other classes. Marginalization is when certain people or class of people are made to feel less important by those in power. Marginalized groups includes the individuals, groups or populations outside of ‘mainstream society’, living at the margins of those in the center of power, of cultural dominance and economical and social welfare.
The UNESCO defines Marginalization as a form of acute and persistent disadvantage rooted in underlying social inequality.
Merriam-Webster dictionary defines Marginalization as, “Marginalization means to relegate to an unimportant or powerless position within a society or group.”
In the words of Daniel, Fletcher, Linder- Marginalization may be defined as, “To be marginalized, is to be distanced from power and resources that enable self-determination in economic, political, and social settings…It is an inherent characteristic of ‘those in the margin’, that they have poor access to economical and other recourses like education and social services, meanwhile participation and self-determination are on a low level. However, definitions of what is regarded as marginalized are highly depending on the historical and socio-economical context of a society.”
They are forced to the periphery or edge of the society, this in turn robs them of all the facilities which further deteriorates their situation. The marginalized are often neglected in the society, they are denied the basic rights, opportunities and facilities that are available to other people. They lack development in political, economic and social fields. They are further denied access to educational institutions and jobs as a result of which their situation never improves and they are pushed more into this never ending vicious circle. In India societies and communities are marginalized on the basis of social, cultural, ethnic, creed, caste, class and many other factors. In this research paper, plight of Minorities and Transgender population will be examined and subsequent measures taken by the government to improve their situation.
Marginalization of Minorities-
India is marching towards a path of modernization and secularization, and this process cannot be completed unless the majority and minority fall in line together with the new trends. India is a home to many diverse religious, cultural, ethnic and linguistic groups. In some places these diverse groups enjoy their basic civil and political rights and freedom to pursue their beliefs. But unfortunately this right is not available everywhere and not to all the groups. Only the majority groups enjoy these basic rights and wherever such groups are in minority they are exploited at the hands of the majority. Sometimes this conflict of interest also devolve into violence.
The Indian Constitution provides no definition of the term minorities but it may be defined as a group of people that live in a society but are different from the majority population of the society on the basis of religion, race, belief, language etc. From the Constituent Assembly Debates, it can be gathered that the Constitution Makers used the term minority to connote numerically vulnerable group in the power equation of State population.
There is a need for change of the plight of the minorities. Overcoming the marginalization of minorities has direct benefits for national development processes and the achievement of inclusive growth. For example:
Discrimination against minorities is a major factor in poverty and inequality; addressing discrimination can make poverty reduction strategies more effective. Knowledge among government actors of the negative effects of discrimination on development and the particularities of cultural and religious traditions of marginalized groups can better equip them to create more flexible, effective and well-informed strategies for poverty reduction.
To achieve the Millennium Development Goals (MDGs), greater efforts are needed to address hard-to-reach groups like the most minorities; if these groups are left behind by the MDGs, inequality will increase and intercommunal tensions could rise, undermining the sustainability of MDG achievements.
Educational qualifications among minority groups are often lower; curriculum reform that takes account of minority cultures, languages and tackles discrimination will contribute towards achieving education for all.
Enabling political participation by minority groups can strengthen State cohesion, accountability and help to achieve democratic governance. Fair political representation of minorities can stimulate broad-appeal policies that maximize development potential.
Access to justice for minorities can reduce inter-communal tensions, prevent crisis, strengthen the rule of law and help maintain stability for development.
Markets that are unfairly manipulated to benefit only the dominant groups and discriminate against minorities achieve suboptimal growth and discourage minorities from investing fully in their human capital potential for production.
Reforms-
Overcoming the marginalization of minorities usually means addressing existing inequalities in power and entrenched structures of discrimination. Keeping in mind the negative impact of marginalization changes should be made in the overall system to enable the full participation of even the most excluded in society. Meaningful progress towards sustainable human development, inclusion and stability can be better achieved through measures that promote and protect human rights and ensure effective participation of minorities in such efforts. Discrimination and exclusion of national or ethnic, religious and linguistic minorities undermine efforts to achieve poverty reduction, the Millennium Development Goals (MDGs), democratic governance, environmental sustainability and conflict prevention. In contrast, effective participation of minorities enriches decision making, and helps us plan, implement and monitor sustainable and effective solutions to development challenges.
Social reforms-
Minorities should be given role in decision-making process at the local level
They should be consulted in matters and decisions related to them
If small minority groups are underrepresented, then appropriate mechanisms to improve representation should be developed
Genuine representation of all groups in the local representative bodies should be ensured
Communities should be made aware of their existing rights
Cross-group alliances should be promoted in order to support each local ethno-cultural community’s interests
Impact of the existing legislation should be monitored through appropriate indicators
Participation of the beneficiaries should be in all stages of implementation of the legislation
Resources should be made available at the local level as well, in order to implement the national legislation and to respond to the community’s needs.
Minorities have the right to freedom of expression in their own language and pertaining to their own culture. Freedom of speech and expression is an empowering right.
Legal Reforms-
Since India is a secular country, it is important to maintain the integrity of nation by maintaining a status of equality as because of its rich cultural values and tolerance. The main focus of the law is to create confidence in the mind of such minorities that they are protected by the law of the Constitution and also they are treated equally on par with the majority so that there would be no any kind of discrimination among the citizens. The Constitution of India protects two types of minorities, which are, linguistic and religious. The reforms are discussed as follows-
Protection of linguistic minorities-
Article 350A reads – It shall be the endeavor of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.
The learning and communicative processes involved in the conservation of culture, language, and script are animated by the constitutional policy of mother tongue instruction contemplated in Article 350A. This Article is a special directive of the state and helps in strengthening the rights guaranteed under Article 29(1) of the constitution.
The Constitution also makes provision for appointment of special officer for linguistic minorities. Article 350B has been inserted in the constitution in this regard. It states that the President shall appoint a Special Officer for linguistic minorities. And it shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution and report to the President upon these issues at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned.
Protection of Religious Minorities-
Article 25-28 of the Indian Constitution guarantee protection of rights to the religious groups whether majority or minority.
Article 25 reads – Freedom of conscience and free profession, practice and propagation of religion. This Article provides every person the right to the freedom of conscience and the right freely to profess, practice and propagate religion. Freedom of conscience connotes a person’s right to entertain beliefs and doctrines concerning matters, which are regarded by him to be conducive to his spiritual well-being. The right is not only to entertain such religious beliefs as may be approved by his judgment or conscience but also to exhibit his sentiments in overt acts as are enjoined by his religion. To profess a religion means the right to declare freely and openly one’s faith. A person may propagate freely his religious views for the edification of others. It is immaterial whether the propagation is made by a person in his individual capacity or on behalf of a church or institution.
Article 26 reads that Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
-to establish and maintain institutions for religious and charitable purposes,
-to manage its own affairs in matters of religion,
-to own and acquire movable and immovable property,
-to administer such property in accordance with law.
Article 27 reads – No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Protection of cultural and educational rights-
Article 29 reads – Protection of interests of minorities-
Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30 reads – Right of minorities to establish and administer educational institutions-
All minorities, whether based on religion or language, shall have the right to set up and administer educational institutions of their choice.
National Commission for Minorities-
The Minorities Commission was set up in January, 1978 by a Resolution issued by Ministry of Home Affairs. It has now become a statutory body with the enactment of The National Commission for Minorities Act, 1992 and renamed as the National Commission for Minorities. The 1995 Amendment provided for a Vice Chairperson in the Commission. The Commission’s composition has also been extended to 7 members (including Chairperson and Vice Chairperson). Section 3(2) of the Act stipulates that five members including the Chairpersons shall be from amongst the minority communities.
15 Point Programme for the Welfare of Minorities-
The Prime Minister’s New 15-Point Programme for the welfare of minorities was announced in June, 2006. The objectives of the programme are:
Enhancing opportunities for education,
Ensuring the equitable share for minorities in economic activities and employment, through existing share and new schemes, enhanced credit support for self-employment and recruitment to State and Central Government Jobs,
Improving the conditions of living of minorities by ensuring an appropriate share for them in infrastructure development schemes,
Prevention and control of communal disharmony and violence.
An important aim of the new programme is to ensure that the benefits of various government schemes for the underprivileged reach the disadvantaged sections of the minority communities. In order to ensure that the benefits of these schemes flow equitably to the minorities, the new programme envisages location of a certain proportion of development projects in minority concentration areas. It also provides that, wherever possible 15 per cent of physical targets and financial outlays under various schemes should be earmarked for minorities.
Economic reforms-
Three centrally sponsored scholarships for students belonging to minority communities have been launched. These are –
Merit-cum-Means scholarship scheme: this scheme was launched in the year 2007. It is being implemented through state government/ union territory administration. The entire expenditure is borne by the Central Government.
Post-Matric Scholarship scheme: this scheme was also launched in the year 2007, with the central government bearing 100% of the expenditure. It is provided to minority communities for studies in India in a government higher secondary school/ college and other eligible private institutions. Students with not less than 50% marks in previous final examination, whose parents’ annual income does not exceed Rupees 2.00 lakh are eligible for this scholarship. 30 per cent of the scholarships have been earmarked for girl students.
Pre-Matric Scholarship- this scheme was approved in January, 2008. It was launched on a 75:25 fund sharing ratio between the Centre and states/union territories. Students with not less than 50% marks in previous final examination, whose parents’ annual income does not exceed Rupees 1.00 lakh are eligible for this scholarship.
Marginalization of transgender-
The word “transgender” – or trans– is an umbrella term, which was coined in the United States. It includes people whose lifestyle appear to conflict with the gender norms of the society and whose gender identity is different from the sex assigned to them at birth. Although the word “transgender” and the modern definition of it came to be used in the late 20th century, people who fit in this definition have existed in every culture throughout history. Transgender is a community which has been a part of the society since the very evolution of society itself. But they are also one of the most backward classes because of the social stigma attached to them. This stigma has led to their marginalization to a great extent. Such hostile conditions have been created for them that it has pushed them to the fringes of society. They lack basic education and skills. As a result, they have no option left but to work as sex workers or beg for their livelihood. They feel exclusion at the hands of their family members as well as the society. They also have restricted access to education, health services and other important public services. These all factors serve as an obstacle to the basic growth and development of any individual. An individual’s sex is the biological orientation that one acquires at the time of birth but gender is the social connotation that is given to an individual after birth. It is right from this point that a fixed set of behavior, habits and expectations are attached to men and women differently.
In India, there is a wide range of transgender identities: Hijras, Aravanis, Kothis, Jogtas and Shiv shaktis. These multiple identities give a notion of those transgressing social gender norms. All these subgroups have to face multiple forms of oppression. They are also called by various names which is quite humiliating for them. Passing comments and ridiculing a person’s gender identity are some common features of sexism and linked to gender stereotyping. Developing a line of segregation in the society by means of derogatory remarks and labels has been at the core of contemporary gender exclusive perceptions. One very common derogatory reference to a transgender is “chakka” which by its immediate use separates the person from the rest in order to make that person a subject of humiliation.
Laxmi Narayan Tripathi, a Transgender Rights activist, also represented India several times on the International platform, had once quoted, “I was a normal child but it is the world that made me feel different.” It is precisely not the way one is born into a community but judged upon what identity that a person is likely to assume in future. In a way the social stigma that gets itself attached to the identity of that person. In the wake of shrinking spaces for the LGBTQ like Laxmi, many more activists from the same community have come to the forefront to battle social exclusion. Gauri Sawant, a transgender activist and Harsh Iyer, an activist who is fighting for equal rights for the LGBT are some eminent examples from this field. Activist Kalki Subramaniam opened the first Transgender School in Kochi by the name of Sahaj International. She highlights how a denial of access to certain essential resources including proper schooling, health and employment continues to widen the gap between the transgender and the rest.
For a fact, it is their fundamental right to demand a fair and equal standing in democracy. It is the need of the hour to provide them equal treatment, as a result various reforms are been carried out in this regard.
The third gender in India is 4.9 lakh. Among them almost 55,000 is in the 0-6 population. This has come as a big surprise to the community as they did not expect so many parents to identify their children as belonging to the third gender. The highest proportion of the third gender population, about 28%, was identified in Uttar Pradesh followed by 9% in Andhra Pradesh, 8% each in Maharashtra and Bihar, over 6% in both Madhya Pradesh and West Bengal and well over 4% in Tamil Nadu, Karnataka and Odisha. Rajasthan accounted for over 3% of the total transgender population and Punjab for 2%. (Census 2011)
Reforms-
Over the last few years, there have been important developments for eliminating the historic discrimination and exclusion of transgender persons; and for ensuring that they are accepted in society and given equal opportunities and access to resources. In April 2014, the Supreme Court of India gave a major boost to transgender rights India in by its decision in the case of National Legal Services Authority Union of India. It recognized the right of transgender persons to adopt their self-identified gender as male, female or ‘third gender.’ The case spurred many executive actions and policy changes to further the rights of transgender persons.
The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) is a major initiative of the 11thFive Year Plan period which brought employment opportunities for transgender people. The Ministry of Housing and Urban Poverty Alleviation is the National Urban Livelihood Mission and Healthcare facilities. The social, economic, political transformation, Housing, legal measures, Police Reforms, legal and constitutional safeguards to prevent human rights violations of the transgender community and institutional mechanisms to address specific concerns of transgender people.
The Transgender Persons (Protection of Rights) Bill, 2019 was recently passed by the parliament and it has brought various changes. Key Reforms of the Bill are-
Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
Prohibition against discrimination: The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:
Education, employment, healthcare.
Access to or enjoyment of goods, facilities, opportunities available to the public.
Right to movement, right to reside, rent, or otherwise occupy property.
Opportunity to hold public or private office.
Access to a government or private establishment in whose care or custody a transgender person is.
Health care
The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
It calls for establishing a National Council for Transgender persons (NCT).
Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.
Concerns
The Bill does not have any provision for self-determination of gender. The transgender community has questioned the certificate of identity.
It fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity.
It does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in National Legal Services Authority NALSA v. Union of India (UOI) case (2014).
The Bill sets out lighter sentences for several criminal offences, such as “sexual abuse" and “physical abuse", when they are committed against transgender people.
CONCLUSION-
India cast off the foreign yoke in 1947 after centuries of discrimination, exploitation, lethargy and subjection. The leaders of the country resolved to make the best use of its hard-won freedom and serve the millions of their countrymen to the best of their ability. The Indian people gave to themselves a new Constitution in the year 1950. It seeks to secure all its citizen justice, social, economic and political. A new era of social reform and progress was believed to have dawned with the promulgation of this Constitution. But a lot more needs to be done to bring justice and equality for the minorities as well as the transgender. Only legislative reforms are not enough to bring a change in the society. Their measure is just one way of bringing change in the society but that change may be welcomed whole heartedly or it may be criticized or resented by the people. So for any legal reform to work, social reform is equally important. The fabric of legislations is many a times poorly drafted, vague and more concerned with demonstrative morality than with practical implementation. In order to get over this laxness in enforcement, legislations need to be adequately backed with social acceptance and proper implementation machinery. With the combined efforts on the parts of the Centre/ States and the society at large minorities and transgender would surely be considered as equals and all the discrimination against them will end. Equal position and contribution of every member of the society is important for every nation to become better.
Name- Shivika Goyal
Course- BA LLB (hons.)
Year of Study- 4th
Institute- University Institute of Legal Studies, Panjab University, Chandigarh
REFERENCES-
https://www.youngbhartiya.com/article/marginalization-of-transgenders-in-india
Durga Das Basu (2019) “Introduction to the Constitution of India”, 24th Edition, Lexis Nexis , New Delhi
Dr. J.N. Pandey “Constitutional law of India”, Central Law Agency, Allahabad
Satish Chandra “psychological and educational problems of LGBT Community in India”, IP Innovative Publication Private Limited, New Delhi