Date : 05/10/2023

Relevance: GS Paper 2- Social Justice- Empowerment of Margenalised section of society

Keywords: LGBTQ, Yogyakarta Principles, Transgender Persons (Protection of Rights) Act, 2019, Section 377 of the Indian Penal Code

Context-

The debate surrounding the inclusion of transgender individuals in the Indian Armed Forces has gained prominence following a report presented by the Standing Committee on Personnel, Public Grievances, Law and Justice to Rajya Sabha. The report proposes extending reservation benefits to transgender people in the Central Armed Police Forces (CAPFs) and implementing measures to facilitate their recruitment. This discussion arises due to the historical discrimination and marginalization faced by transgender individuals in India, affecting their access to social equality, education, and employment opportunities.

Issues Related to Employment of Transgenders in India

• Population Data: According to the 2011 census, India has approximately 4.88 lakh transgender individuals, but a significant number of them struggle to secure employment opportunities.
• Employment Discrimination: A study conducted by the National Human Rights Commission in 2018 revealed that a staggering 96% of transgender individuals face employment discrimination, severely limiting their access to decent career prospects.
• Occupational Consequences: Consequently, many transgender individuals are forced into low-wage occupations or resort to undignified means of livelihood, such as sex work and begging.
• Sex Work and Health Hazards: Approximately 23% of transgender individuals are coerced into participating in sex work, a profession associated with significant health hazards. This puts them at a 49-fold higher likelihood of HIV infection compared to the general population.
• Economic Exclusion: Around 92% of transgender individuals experience a lack of access to economic activities, even if they possess the necessary qualifications.
• Between 50% to 60% of transgender individuals did not receive formal education, and those who did faced substantial levels of prejudice.
• Educational Hurdles: The NHRC reported that 52% of transgender individuals faced harassment by their classmates, while 15% encountered harassment from their lecturers, leading to the discontinuation of their education.
• Low Employment Rate: During the same period, the employment rate of transgender individuals in private sectors or non-governmental organizations (NGOs) was only 6%.

Legal Recognition

• Transgender Identity Acknowledgment: In the 2014 National Legal Services Authority vs. Union of India ruling, the Supreme Court officially recognized transgender individuals as the third gender within the Indian Constitution.
• Section 377 Repeal: In September 2018, the Supreme Court nullified Section 377 of the Indian Penal Code, decriminalizing homosexuality.
• Transgender Persons (Protection of Rights) Act, 2019: defines a transgender person as someone whose gender identity does not align with the gender assigned at birth. It includes various gender identities, such as trans-men, trans-women, individuals with intersex variants, gender-queer, kinnar, and hijra.
• International Framework: The Supreme Court referenced the Yogyakarta Principles, recognized by the United Nations and other international platforms, providing a comprehensive framework for gender-related human rights. Multiple provisions from international documents such as the Universal Declaration of Human Rights (1948), International Covenant on Economic, Social and Cultural Rights (1966), International Covenant on Civil and Political Rights (1966), were cited.

• Legislative Directives: Due to the absence of specific legislation for transgender individuals in India, the Supreme Court issued directives to both central and state governments, ensuring the protection of their rights until the enactment of appropriate legislation.
• Protection in Employment: The Act prohibits discriminatory practices against transgender individuals in employment, both in government and private sectors. Every establishment must appoint a complaint officer to address Act-related complaints.

Debate Over Inclusion in the Armed Forces

1. Cultural Transformation vs. Rights and Abilities

• Unique Psychological Approach in Armed Forces: Legal experts have noted that the Central Armed Police Forces (CAPF), along with the army and police forces, operate with a distinctive psychological approach to governance, setting them apart from other public institutions. The proposition of enlisting transgender individuals in the Central Armed Police Forces (CAPF) presents potential challenges due to practical considerations linked to their unconventional command philosophy.
• Authority Beyond Qualifications: Mere success in examinations and appointment as an officer does not automatically grant the authority to command soldiers. In practice, after completing training, a newly appointed officer is assigned to their respective unit. Following a period of familiarization and pre-induction training alongside soldiers, the officer assumes autonomous leadership over the company or unit. The obedience of soldiers to the officer's directives hinges on their perception of the officer as deserving respect and compliance. Instances of command failure have been observed, leading to mismanagement and, in severe cases, fratricide. The central question is not about the capability or legal entitlement of individuals identifying as transgender but rather the need for a profound cultural transformation.
• Conservatism and Modernization in the Armed Forces : In 2019, General Bipin Rawat, the former Chief of the Army Staff, shared his perspective on the LGBTQ community, emphasizing that homosexuality is still viewed as "unacceptable" within the Army. He underscored that the Army, as an institution, maintains a "conservative" outlook and has not undergone significant modernization in this regard.
• Constitutional Framework and Limitations The Supreme Court of India, in the landmark case of Navtej Singh Johar Vs. Union of India (2018), decriminalized homosexuality. However, the Indian military continues to prohibit it due to its adherence to a distinct legal framework. Article 33 of the Constitution allows for limitations on the fundamental rights of armed forces personnel as determined by legislation enacted by Parliament. This implies that the Army Act, Navy Act, and Air Force Act have the capacity to curtail various liberties typically enjoyed by civilians.
• Parliament's Role in Defining Rights: Article 33 grants Parliament the authority to establish, through legislation, the extent to which the rights enshrined in the law are applicable to individuals serving in the armed services. It stipulates that the rights of individuals can be limited or revoked to ensure the effective fulfillment of their responsibilities and the preservation of order within their ranks. This clause applies not only to combatants but also to non-combatant individuals affiliated with the armed forces, including police forces, paramilitary forces, intelligence organizations, and other related services, extending beyond the military.
• Perspective on Inclusion: There are no inherent issues with subjecting homosexual and transgender soldiers to equivalent levels of physical and mental demands. The core challenge lies in fully embracing the possibility of inclusion. Thus, the necessary transformation should originate from within. The modernization objective for the Indian army should encompass not only enhancing weaponry but also broadening its perspectives and altering its cultural norms and perceptions.

2. Lack of Empirical Evidence Against Transgender Service

• Historical Significance of Transgender Community: Historically, the transgender population in India held influential roles during the Mughal Empire, serving as guardians of harems and assisting the royal family. They were regarded as astute and dependable, enjoying unrestricted access to all spheres of society. However, the arrival of the British colonialists brought a significant transformation. The colonizers viewed transgender individuals with aversion and failed to comprehend the respect accorded to them. Consequently, the British designated them as a "criminal tribe" and denied them civil rights.
• Progressive Legal Decisions: In a progressive move, the Kerala High Court, in the case of Hina Haneefa vs. State of Kerala 2020, recognized an individual's transgender identity and self-perceived gender as female, granting eligibility for enrollment in the NCC unit. The court directed the army to amend the NCCA, 1948 within six months to facilitate the admission of individuals based on their self-perceived gender.
• International Insights: RAND Study: A RAND study conducted in 2016 examined the potential implications of allowing transgender individuals to openly serve in the United States military. This study analyzed policies and practices in 18 other nations that permit transgender troops to serve openly. The findings emphasize the importance of diversity-related training within military organizations and the development of comprehensive transgender recruitment policies. These insights provide valuable guidance for Indian policymakers, not only for increasing transgender representation in the armed forces but also for effectively addressing opposition to inclusivity.
• Promoting Equality and Diversity: The Brookings Institution highlights that excluding a demographic from equitable military service exacerbates societal stigma and perceptions of civic inferiority.
• Addressing Misconceptions and Challenges: Scholars argue that there is a lack of factual data to substantiate claims that transgender individuals are unfit for military service. Concerns about depression, anxiety, and suicide ideation are often raised, but these issues are prevalent across the broader LGBT population. Many countries do not restrict transgender individuals from accessing necessary services. Creating a more inclusive and supportive environment, where transgender individuals can openly serve without fear of discrimination or marginalization, may help mitigate their discomfort and contribute to a more equitable military.

Conclusion:

Incorporating transgender individuals into the Indian Armed Forces is a complex issue. While recognizing their rights and addressing historical discrimination is vital, the unique nature of military culture and constitutional constraints must be considered. International insights underscore the importance of diversity-related training and inclusive policies.

Despite concerns about mental health, an inclusive and supportive environment can mitigate such issues. Striking a balance between inclusion and military readiness is crucial. By informed policymaking and a commitment to diversity, India can chart a path toward a more inclusive future in its defense institutions.

Source - PIB/ The Indian Express