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A transgender individual can contest election from a seat reserved for women candidates: Bombay High Court

A decision that a transgender individual can contest election from a seat reserved for women candidates was pronounced by the Bombay High Court through a Vacation Bench of Justice Ravindra V. Ghuge in the case of Anjali Guru Sanjana Jaan v. State of Maharashtra (WRIT PETITION (STAMP) NO. 104 OF 2021)

FACTS OF THE CASE:

The petitioner was displeased with the Returning Officer’s rejection of her nomination form. She had decided to be a woman and had submitted her candidacy form for the election from the ward allocated for the women-general category. The nomination paperwork was rejected because the petitioner is transgender. There was no provision for the transgender category in the village panchayat elections.

A.P. Bhandari, Advocate for the Petitioner, made a categorical declaration before the High Court that this was the first time the petitioner had chosen the right to self-perceived gender identity and had adopted the female gender for all purposes throughout her lifetime. He said that the petitioner shall not, under any circumstances, convert to the male gender in the future during her lifetime.

S.B. Pulkundwar, AGP, and A.B. Kadethankar, Advocate for the Election Commission, submitted that they would not argue beyond the provisions of law and that the Returning Officer was likely to be unaware of the law and must have been in a quandary while deciding whether to accept the petitioner’s nomination form.

The High Court relied extensively on the rules established in the case “National Legal Services Authority v. Union of India, (2014),” in which the Supreme Court dealt exhaustively with the question of transgender rights. The Court noted that the Government of India passed the Transgender Persons (Protection of Rights) Act, 2019, which grants a transgender person the right to be recognized and the right to self-perceived gender identity.

The Courts held that the Returning Officer was clearly hampered by a lack of legal expertise while evaluating the status of the petitioner’s nomination form. No other candidate has filed an objection against the petitioner. The Returning Officer was skeptical of the petitioner’s nomination form and chose to reject it, claiming that the petitioner could not be either male or female and that the ward was designated for women in general. There is no ward for transgender people.

In light of the foregoing, the writ petition filed by the petitioner was allowed. In addition to this, the impugned order passed by the Returning Officer was quashed and set aside.

JUDGEMENT REVIEWED BY REETI SHETTY

Click here to view judgement

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