The Kerala High Court has ruled in favour of Arundhathi, a transperson on whom her mother filed a habeas corpus, alleging she was a mental patient who has been abducted by trans community.
The CourtÂ asserted that the transgender had â€œthe right to wander about or associate with likeminded people and cannot be compelled to be at his parental homeâ€ as demanded by her mother.Â The Bench comprising Justice V. Chitambaresh and Justice K.P. Jyothindranath has held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep the right of a person to live as a transgender
Arundhati, a 25-year-old transgender woman in Kerala, was incarcerated by her own family and was continuously abused for the past year due to her identity. She was also put in a mental asylum for months as the family wanted to ‘cure’ her.
Following the year-long imprisonment in her own house and hospital, she finally escaped from the home in order to live her own life. According to Maya Krishnan, Arundhati’s lawyer, the unrelenting family filed a man missing case inÂ Kalamassery Police station.
ArundhatiÂ was initially taken to a mental hospital to cure her of her ‘transgenderness’ for 4 months and when they observed no change, her family planned to put her in the hospital again which prompted her to leave them for good.Â She went out once to return after a week and thereafterÂ has permanently left the parental home on 9.5.2018 and hasÂ not returned so far.
But as they filed the man missing case, she went to the police station to explain her conditions. She talked to her parents inside the Circle Inspector’s room. The officers made it clear that it was not their job to force a transgender person to go home. The case was dismissed and ArundhatiÂ was let go.
Even when it was made clear to her family that she is her own person and have the right to choose her gender and to live as she pleases, the family filed a complaintÂ with the City Police Commissioner. The Commissioner transferred the case to the Elamakkara police station.
Later, ArundhatiÂ was presented at Kalamassheri Magistrate Court. She explained everything and asserted her transgender identity.
Unfortunately, her problems didn’t come to an end. Her mother filed a HabeasÂ Corpus in High Court. They have alleged that their son was missing and abducted. She was called to appear in courtÂ June 4th, Monday. She had contacted the Sub-inspector and told him that she was ready to come to the station and appear before the court.
On Sunday, her advocate Maya KrishnanÂ was contacted by the SI and heÂ threatened her to present Arundhati as he couldn’tÂ contact her. Maya Krishnan said that no threat could make her bail on transgender issues and Arundhati will appear before the court on Monday.
On Monday, in the High Court, Arundhathi’s mother alleged that her son was detained by some transgenders in Kochi and she demanded that her son should be freed. Mother’s petition stated that he son had started behaving abnormally and was violent at times necessitating, admission in Stella Maris Hospital, Padupuram.
She argued that Arundhati was diagnosed as having a mood disorder with psychotic features andÂ was treated as an inpatient thatÂ helped her to gain insight temporarily. Her mother stated that ArundhatiÂ has shown no inclination to return home and was wanderingÂ with transgenders exposing herself to the risk of physicalÂ abuse and organ transplant.
Arundhati appeared before the Court, dressed as aÂ female and asserted that she is a transgender by birth andÂ does not suffer from any sort of mental aberration as alleged by her mother. But her mother brought aboutÂ the past history of psychiatric treatment beingÂ extended to Arundhati and wanted an immediateÂ medical/psychological evaluation.
The Court directed medical/psychological evaluationÂ of Arundhati by the Kusumagiri Mental Health Centre, Kakkanad, Ernakulam which was necessitated because itÂ was alleged that she is a psychiatric patient. A team ofÂ doctors comprising of the Chief Psychiatrist, Psychiatrist &Â Medical Superintendent and Clinical Psychologist evaluated herÂ for about two days. It was found that theÂ orientation of her was normal and she has no thought disorder or hallucinations or inappropriate mood indicativeÂ of no mental incompetency.
Mental Health Centre After-Evaluation Report of Arundhati reads as follows:
“Aby James aka; Arundhati informed that he used to dress like girls from childhood. He used to keep companyÂ with girls during school life. He has aversion toÂ males and avoids their company. In his words â€œI haveÂ the mind of a woman and the features of a manÂ which does not suit meâ€. He said he realised thereÂ are people like him only when he saw theÂ Malayalam movie â€œChandupottuâ€. He asserts thatÂ unless he is allowed to live like a woman, he will commit suicide. Also expresses the desire toÂ undergo corrective surgery to change the sex.â€
The medical report further confirmed thatÂ though Arundhati has normal male genitalia on external examination fits theÂ label ‘transgender’ as per the Diagnostic and StatisticalÂ Manual 5th Edition (2013).
Live law reports that the Court went on to note that the self-identification of the person before it as a transgender was evident by Arundhati’s speech, mannerism and clothing, which the Court claimed to have noticed during its interaction with her.
The Court further referred to the decision in the case of National Legal Services Authority vs. Union of India, (2014) 5 SCC 438, wherein the Apex Court had directed Centre and the State Governments to recognize transgender as the third gender andÂ also to provide them with the benefits of socially and economically backward class.
The excerpt fromÂ National Legal Services Authority v. Union of India [(2014) 5 SCC 438]Â which the court site is as follows:
â€œ71. Principles referred to above clearlyÂ indicate that the freedom of expressionÂ guaranteed under Article 19(1)(a) includes theÂ freedom to express one’s chosen gender identityÂ through varied usage and means by way ofÂ expression, speech, mannerism, clothing etc.Â
Gender identity, therefore, lies at theÂ core of one’s personal identity, gender expressionÂ and presentation and, therefore, it will have to beÂ protected under Article 19(1)(a) of the ConstitutionÂ of India. A transgender’s personality could beÂ expressed by the transgender’s behaviour andÂ presentation. The state cannot prohibit, restrict orÂ interfere with a transgender’s expression of suchÂ personality, which reflects that inherentÂ personality. Often the State and its authoritiesÂ either due to ignorance or otherwise fail to digestÂ the innate character and identity of such persons.Â We, therefore, hold that the values of privacy, self-identity, autonomy and personal integrity areÂ fundamental rights guaranteed to members of theÂ transgender community under Article 19(1)(a) ofÂ the Constitution of India and the State is bound toÂ protect and recognize those rights.â€
The Court then allowed Arundhati to live as per her will and refused to issue Habeas Corpus.
Arundhati’s Advocate Ms.Maya Krishnan said that the case has opened up a whole lot of discussions about the transpersons and the transphobic behavior they face from their own homes. Many have been imprisoned in their homes and a lot of them were subjected to mental abuse. “I am thinking of addressing the issue of the hospital who treated her and tried to cure her transgenderness”,said Advocate Maya while speaking to TWJ.
The transphobia faced by transpersons from their families and the society continues to threaten the safety of transgenders in Kerala.