Kolkata, January 3, 2023: In a crucial verdict for the transgender rights movements in West Bengal, the Honourable High Court at Calcutta today directed the Government of West Bengal to process all pending applications for transgender identity certification without fail by February 2, 2023.
The verdict was delivered by Justice Sabyasachi Bhattacharyya in the matter of S. Bhattacharyya Vs. Union of India and Others. He was hearing a writ petition filed by Shibpur-based teacher Samragni Bhattacharyya under Article 226 of the Constitution of India on the inordinate delay in her application for a transgender identity certificate being processed by the District Magistrate of Howrah district. Samragni had filed her application nearly 10 months ago in March 2022 under the rules stipulated by the Transgender Persons (Protection of Rights) Act, 2019. There had been no response to her application till date.
The verdict stated: “It is further argued that a set of statistics disclosed before the Lok Sabha by the Ministry of Social Justice & Empowerment, [Government of India] indicates that in West Bengal, there were 53 valid applications pending in total, but the number of certificates issued was merely one as on December 14, 2021.”
Samragni’s counsel, advocate Kaushik Gupta elaborated: “We argued that even if one person has been issued a transgender identity card, then under Article 14 of the Constitution, the principles of justice and equality imply that all other persons who’ve applied for the identity card must also be issued such cards by the relevant government authorities. The court has upheld these principles and has gone beyond Samragni’s individual prayer and directed the state government to address all the applications pending till date.”
He added, “This development shows that sometimes even if one person stands up for their rights in a court of law, there can be a positive impact well beyond that one person for a much larger group of people.”
Advocate Srimoyee Mukherjee, who assisted Kaushik Gupta, said that the counsel for the Government of West Bengal pointed out that the Rules for the Transgender Persons (Protection of Rights) Act, 2019 had only recently been promulgated by the state government – on November 4, 2022. Since the central Rules issued by the Governemnt of India in 2020 had not been adopted till recently by the state government, the scheme for transgender identity certification within the Act could not have be implemented before this.
However, the court ruled, “It is evident that even if the [state government] did not adopt the central Rules, it was the mandate of law on the District Magistrates to issue the identity card to transgender persons within the contemplation of the 2019 Act and the central Rules within the period as stipulated therein. Unfortunately, it is apparent that only one out of 53 total valid applications had been processed till December 14, 2021.”
The court then directed the government authorities to ensure that, subject to satisfaction of the concerned District Magistrate that an applicant fulfills the criteria as stipulated in the Transgender Persons (Protection of Rights) Act, 2019, transgender identity certificates are issued to all the applicants latest by February 2, 2023.
After the court verdict was announced, a visibly happy Samragni said: “I had to file this petition because it was pivotal for a legal validation of my transgender identity. The delay in the issuing of the certificate left me no choice but to approach the court. I hope the verdict will benefit not just me but all my trans brothers and sisters as well.”
Transgender activists in West Bengal have long been demanding speedier processing of applications for transgender identity certification. In October 2022, Varta had reported that though the delay in issuing of certificates was by and large a national phenomenon, the problem was particularly serious in West Bengal. While a cumbersome application process would account for part of the problem, the state government and District Magistrates cannot shrug off their failure to ensure faster resolution of the applications.
It is is also quite possible that non-action in the processing of applications could have discouraged many individuals from applying in the first place. This may explain the extremely small number of applications made in West Bengal since the central Rules for the Transgender Persons (Protection of Rights) Act, 2019 were issued in 2020.
Kaushik Gupta informed that a letter, along with a copy of the verdict, will be sent to the Department of Women and Child Development and Social Welfare, Government of West Bengal to appraise them of the development. If the concerned authorities fail to act in a timely manner, the court can be approached again with a contempt application.
It was almost a decade ago that the Honourable Supreme Court of India had come out with the well known NALSA verdict on transgender identity and rights. It was a court intervention then that had transformed the discourse on transgender rights in India. Since then, it has mostly been court interventions that have pushed the central and states governments into action with regard to the concerns of the transgender communities. It is a court intervention again that has come to the aid of the realization of the most basic of transgender rights in West Bengal (and India).
About the main photo: A scene from the ‘19th Kolkata Rainbow Pride Walk’ held on December 18, 2022 (photograph is representative in nature). Photo credit: Kaushik Gupta