Q.

Critically analyse the provisions of Transgender act , 2019 and the necessity
for bringing a special law for transgender community despite recognising them
as a sex covered under Art.15

The Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019.

Key Features
 Definition of a transgender person: The Bill defines a transgender person as
one whose gender does not match the gender assigned at birth. It includes
transmen and trans-women, persons with intersex variations, gender-queers,
and persons with socio-cultural identities, such as kinnar and  hijra.

 Certificate of identity: A transgender person may make an application to the

District Magistrate for a certificate of identity, indicating the gender as
‘transgender’.

 Prohibition against discrimination: The Bill prohibits discrimination against a

transgender person, including denial of service or unfair treatment in relation to:

o Education, employment, healthcare.

o Access to or enjoyment of goods, facilities, opportunities available

to the public.

o Right to movement, right to reside, rent, or otherwise occupy

property.

o Opportunity to hold public or private office.

o Access to a government or private establishment in whose care or

custody a transgender person is.

 Health care

o The Bill also seeks to provide rights of health facilities to

transgender persons including separate HIV surveillance centres,
and sex reassignment surgeries.

o It also states that the government shall review medical curriculum

to address health issues of transgender persons, and provide
comprehensive medical insurance schemes for them.

 It calls for establishing a National Council for Transgender persons (NCT).

 Punishment: It states that the offences against transgender persons will attract
imprisonment between six months and two years, in addition to a fine.
Concerns
 The Bill does not have any provision for self-determination of gender. The
transgender community has questioned the certificate of identity.

 It fails to address the lack of an effective mechanism to enforce the legal

prohibition against discrimination on the ground of gender identity.

 It does not make provision for affirmative action in employment or education

despite the Supreme Court’s mandate in National Legal Services Authority
NALSA v. Union of India (UOI) case (2014).

 The Bill sets out lighter sentences for several criminal offences, such as “sexual
abuse" and “physical abuse", when they are committed against transgender
people.

Right to health as a Fundamental Right

The widely acceptable definition of health is that given by the WHO in the preamble of its
constitution, according to World Health Organization, “Health is a state of complete physical,
mental and social wellbeing and not merely the absence of disease”.1 In recent years, this
statement has been amplified to include the ability to lead a „socially and economically
productive life‟. Through this definition, WHO has helped to move health thinking beyond a
limited, biomedical and pathology-based perspective to the more positive domain of
“well being”. Also, by explicitly including the mental and social dimensions of well being,
WHO has radically expanded the scope of health and by extension, the role and responsibility
of health professionals and their relationship to the larger society.
Human right to health
 The human right to health guarantees a system of health protection for all.
 Everyone has the right to the health care they need, and to living conditions that enable us
to be healthy, such as adequate food, housing, and a healthy environment.
 Health care must be provided as a public good for all, financed publicly and equitably.
The design of a health care system must be guided by the following key human rights
standards:
 Universal Access: Access to health care must be universal, guaranteed for all on an
equitable basis.
 Availability: Adequate health care infrastructure (e.g. hospitals, community health
facilities, trained health care professionals), goods (e.g. drugs, equipment), and
services (e.g. primary care, mental health) must be available in all geographical areas
and to all communities.
 Acceptability and Dignity: Health care institutions and providers must respect dignity,
provide culturally appropriate care, be responsive to needs based on gender, age,
culture, language, and different ways of life and abilities.
 Quality: All health care must be medically appropriate and of good quality, guided by
quality standards and control mechanisms, and provided in a timely, safe, and patient-
centered manner.
 Non-Discrimination: Health care must be accessible and provided without
discrimination.
 Transparency: Health information must be easily accessible for everyone.
Participation: Individuals and communities must be able to take an active role in
decisions that affect their health.
 Accountability: Private companies and public agencies must be held accountable for
protecting the right to health care.

Components of Right to Health :

a) The Right to Appropriate Health Care The right to health care requires the establishment of
the health facilities, goods and services, such as hospitals, doctors and drugs, that are of good
quality and available to all, on an equal basis. They must be affordable to everyone, respect
dignity and diverse needs and operate transparently. These facilities must provide
preventive, creative, palliative and rehabilitative health services, including regular
screening programs, appropriate treatment of prevalent diseases, illnesses, injuries and
disabilities, both physical and mental, and all necessary medications.
c) The Right to Healthy Environment And Healthy Working Condition The right to a healthy
environment requires “the prevention and reduction of the population‟s exposure to
harmful substances...or other detrimental environmental conditions that directly or
indirectly impact upon human health.” including the pollution of air, water and soil. The
right to safe and healthy working condition requires the establishment of “preventive
measures in respect of occupational accidents and diseases,” as well as the minimization of
the “causes of health hazards inherent in the working environment.
d) The Right to Maternal, Child And Reproductive Health The right to health requires special
provisions for improving child and mental health, sexual and reproductive health services9 as
well as the treatment of disease affecting women, reduction of women‟s health risks, and
protection of women from domestic violence.

RIGHT TO HEALTH & PREAMBLE TO THE CONSTITUTION

The Preamble to the Constitution which gives a broad direction for the Indian Republic,
refers to social, economic and political justice and also equality of status and of opportunity.
The concept of democratic socialism aims to improve the condition of health care of the
people.
DIRECTIVE PRINCIPLE OF STATE POLICY AND HEALTH
Article 38 of Indian Constitution impose liability on State that states will secure a social order
for the promotion of welfare of the people but without public health we cannot achieve it. It
means without public health welfare of people is impossible. Article 39(e) related with
workers to protect their health.
Article 39(e) related with workers to protect their health.
Article 41 imposed duty on State to public assistance basically for those who are sick and
disable. Article 42 makes provision to protect the health of infant and mother by maternity
benefit. In the India the Directive Principle of State Policy under the Article 47 considers it
the primary duty of the state to improve public health, securing of justice, human condition of
works, extension of sickness, old age, disablement and maternity benefits and also
contemplated.
Further, State‟s duty includes prohibition of consumption of intoxicating drinking and drugs
are injurious to health. Article 48A ensures that State shall Endeavour to protect and impose
the pollution free environment for good health. Article 47 makes improvement of public
health a primary duty of State. Hence, the court should enforce this duty against a defaulting
authority on pain of penalty prescribe by law, regardless of the financial resources of such
authority.
Under Article 47, the State shall regard the raising of the level of nutrition and standard of
living of its people and improvement of public health as among its primary duties. None of
these lofty ideals can be achieved without controlling pollution inasmuch as our materialistic
resources are limited and the claimants are many.
Article 41 provides right to assistance in case of sickness and disablement. It deals with “The
state shall within the limits of its economic capacity and development, make effective
provisions for securing the right to work, to education and to public assistance in case of
unemployment, Old age, sickness and disablement and in other cases of undeserved want”.30
Their implications in relation to health are obvious. Article 42 give the power to State for
make provision for securing just and humane conditions of work and for maternity relief and
for the protection of environment same as given by Article 48A and same obligation impose
to Indian citizen by Article 51A.(g).
FR :
In CESC Ltd. vs. Subash Chandra Bose31 the Supreme Court relied on international
instruments and concluded that right to health is a fundamental right
In Consumer Education and Research Center v. UOI38, the Court explicitly held that the
right to health was an integral factor of a meaningful right to life. The court held that the right
to health and medical care is a fundamental right under Article 21. The Supreme Court, while
examining the issue of the constitutional right to health care under arts 21, 41 and 47 of the
Constitution of India in State of Punjab v Ram Lubhaya Bagga,39 observed that the right of
one person correlates to a duty upon another, individual, employer, government or authority.
Hence, the right of a citizen to live under art 21 casts and obligation on the state. This
obligation is further reinforced under art 47; it is for the state to secure health to its citizens as
its primary duty. No doubt the government is rendering this obligation by opening
government hospitals and health centers, but to be meaningful, they must be within the reach
of its people, and of sufficient liquid quality. Since it is one of the most sacrosanct and
valuable rights of a citizen, and an equally sacrosanct and sacred obligation of the state, every
citizen of this welfare state looks towards the state to perform this obligation with top
priority, including by way of allocation of sufficient funds. This in turn will not only secure
the rights of its citizens to their satisfaction, but will benefit the state in achieving its social,
political and economic goals.
Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors, 40 while
widening the scope of art 21 and the government‟s responsibility to provide medical aid to
every person in the country, held that in a welfare state, the primary duty of the government
is to secure the welfare of the people. Providing adequate medical facilities for the people is
an obligation undertaken by the government in a welfare state.
The Court made certain additional direction in respect of serious medical cases:
a. Adequate facilities be provided at the public health centers where the patient can be given
basic treatment and his condition stabilized.
b. Hospitals at the district and sub divisional level should be upgraded so that serious cases be
treated there.
c. Facilities for given specialist treatment should be increased and having regard to the
growing needs, it must be made available at the district and sub divisional level hospitals.
d. In order to ensure availability of bed in any emergency at State level hospitals, there
should be a centralized communication system so that the patient can be sent immediately to
the hospital where bed is available in respect of the treatment, which is required.
e. Proper arrangement of ambulance should be made for transport of a patient from the public
health center to the State hospital.
f. Ambulance should be adequately provided with necessary equipments and medical
personnel.
National Health Policy :