Published Paper


Personal Laws Affecting the Basic Human Rights of the Transgender Persons in India A Birds Eye view

Subhashree S Sen, Madhubrata Mohanty
India
Page: 73-82
Published on: 2024 March

Abstract

Problem: The transgenders are the most heedless group of persons since ages or we can say society consider them to be the invisible gender who, though exist but their existence is equivalent to non-existence as their legal rights are not being protected under the legislation absolutely. This article is going to discuss the existence of the transgenders with their different variations and their inclusion in the society via the implementation proper legislations ensuring their basic human rights. Nevertheless, India has passed the law in the year 2019 for the protection of transgender persons, which is beyond inadequacy. While studying the provision under the Act, the government need to work on the untouched area i.e., marriage, inheritance, and adoption under the personal laws. The Supreme Court in NALSA Case had directed for the recognition of ‘Hijras’ and other transgenders as ‘third gender’ and denial of the same shall be violative Article 14 and 21 of the Constitution of India. But that’s not sufficient for their actual consideration. Society will consider their existence, only if the government and judiciary go beyond the constitutional rights i.e., rights under different substantive laws and personal laws. This paper will also work on the types third gender that exist in Indian society beside the only existence of the famously know ‘Hijras’ who reside at separate location in different areas forming their own community at large and to find out their prime source for survival. Importantly, focusing on marriage inheritance, and adoption rights for transgender persons under the personal laws in India. Methods: The study has adopted both qualitative & quantitative way of data collection in the form of questionnaires, where the estimated sample size is approximately 45 respondents selected from random samplings technique. Findings: The results shows that majority of people agree to the point that the basic human rights of transgender person is violated and denied. Also, the findings shows that the transgender persons should be given the rights under the personal laws without discrimination. Conclusion: Concluding this paper, the transgender persons shall have the recognition of their rights except employment and education opportunities. A persons’ gender identity shall not be the anyway a reason for discrimination with regards to basic human rights. The legislative and the judiciary needs to look upon the present situations of the transgender persons.

 

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