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GANGA KUMARI VS. STATE OF RAJASTHAN

Read the full judgement here
citation:

MANU/RH/1466/2017

court:

High Court of Rajasthan

judges:

Justice Dinesh Mehta

KEY FACTS:

Ganga Kumari had applied for the post of a woman police constable. She had the requisite educational qualifications and successfully cleared the written examination and physical efficiency tests.

She was also required to undergo a medical examination. Initially, she was selected for the post. However, she was not given an appointment letter because the medical report termed her a “hermaphrodite”.

Ganga Kumari repeatedly requested the recruitment board to confirm her appointment. However, she did not receive any response for them. Therefore, she filed a petition before the High Court of Rajasthan seeking directions to confirm her appointment as an OBC Female or as a transgender person.

ISSUES & DECISION:

The Court had to ascertain whether the recruitment board had discriminated against the petitioner by not appointing her the post of a police constable.

Ganga Kumari argued that the recruitment board had discriminated against her on the basis of her gender identity. She claimed that the respondent’s inaction regarding her application amounted to a rejection of her application. This was a violation of her right to equality (Article 14), right to equality in public employment (Article 16), and right to liberty (Article 21). The respondents argued that the State of Rajasthan had not recognised the “third gender” and were awaiting the enactment of the law pending before Parliament.

The court held that the petitioner could not be denied her fundamental rights merely because of sex or gender identity. The court emphasised that the right to life, equality and non-discrimination was applicable to all persons, regardless of their gender identity. It upheld the right of all persons under Article 19(1)(a) to freely express their gender identity. Furthermore, it referred to the Supreme Court decision in NALSA v. Union of India to argue for the protection of transgender persons’ constitutional rights.

Thus, the court held that the petitioner has the right to self-identify her gender. She has claimed herself to be female and directed the respondents to issue an order of appointment to the petitioner.

In addition to the order on the appointment, the court observed that the determination of sex through medical examination after asking candidates to disclose it in the application amounted to a violation of the right to privacy under Article 21. It held that unless the job requires information on the ‘sex’ of a person, the relevant column in forms should be titled ‘gender’.

SIGNIFICANCE:

Although the judgment used the term ‘transgender’ and ‘intersex’ interchangeably, this case delved into the definition of transgender persons. It also discussed the difference between “sex” and “gender identity”. The Court upheld the NALSA judgement in protecting transgender persons’ constitutional rights.

Ganga Kumari became the first transgender constable in the Rajasthan police force.