The fundamental rights of transgenders, including protection from violence and discrimination, and the need to mainstream the transgender community were central to the judgment.

SIDDHARTH MRIDUL, J.

“Go not to the temple to put flowers

upon the feet of God,

First fill your own house with the

Fragrance of love and kindness.

Go not to the temple to light candles

before the altar of God,

First remove the darkness of sin,

pride and ego,

From your heart…..

Go not to the temple to bow down

your head in prayer,

First learn to bow in humility before

your fellowmen.

And apologise to those you have

wronged.

Go not to the temple to pray on

bended knees,

First bend down to lift someone who is down-trodden.

And strengthen the young ones.

Not crush them.

Go not to the temple to ask for forgiveness for your sins,

First forgive from your heart those

who have hurt……”

- Rabindranath Tagore

1. Shivani is a brave-heart.

2. The present petition highlights and brings to the fore the socio-economic marginalization and exclusion of those whose behaviour is considered “inappropriate” by society. It clearly demonstrates that those who do not conform, render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracised severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded.

3. Despite the decision of the Hon’ble Supreme Court in National Legal Services Authority v. Union of India and Ors: (2014) 5 SCC 438, the trauma, agony and pain, which members of the transgender community have to undergo continues unabated.

4. In National Legal Services Authority (supra) the Supreme Court observed as follows:-

“The spirit of the Constitution is to provide equal opportunity to every citizen to create and achieve their potential irrespective of caste, religion or gender”.

5. The Supreme Court in its infinite wisdom took into consideration the role played by the members of the third gender in Indian culture. The Supreme Court noticed that transgenders were always been treated with great respect and find notable mention in the ancient Hindu scriptures as well as the greatest epics of India, namely, the Ramayana and the Mahabharata. The Supreme Court took notice of the circumstances which led to the fall of transgenders from the onset of Colonial rule. The Criminal Tribes Act, 1871, categorized the entire transgender community as innately “criminal” and profiled them as being “addicted” to committing serious crimes.

6. The Supreme Court lamented that even after the said law was repealed transgenders remain socially excluded, living on the fringes of society in ghettoised communities, harassed by the Police and abused by the public.

7. It is common knowledge that the Rajya Sabha has already passed a Private Bill to promote the rights of transgenders.

8. Kabir, famously said:

“Hari se tu mat het kar, Kar harijan se het,

Maal mulk hari det hai, Harijan hari hi det.”

9. In this connection, the words of Swami Vivekanand also assume great importance. He said and I quote,

“All the powers in the universe are already ours. It is we who have put our hands before our eyes and cry that it is dark”

10. Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our Constitution. Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right to be recognized in their chosen gender. This view is buttressed by the landmark decision of the Supreme Court in National Legal Services Authority (supra).

11. There is, thus, no gainsaying the fact that transgenders enjoy basic human rights including protection from violence and discrimination. They have the rig