Shivani Bhat v State of NCT of Delhi and ors: Affirming the rights of people marginalized on the basis of gender and sexuality

In the wake of a controversial case of illegal confinement of an adult transperson and withholding of his travel and identity documents by his family, Hon’ble Justice Siddarth Mridul of the Delhi High Court has passed a judgement withholding the rights of Shivy as a transgender in Shivani Bhat v State of NCT of Delhi and Ors on the 5th of October, 2015. 19-year-old transgender person Shivy, a citizen of India but a resident of the United States of America was illegally confined in his grandparents’ home in Agra when he came with his parents to visit them in the summer. While he was a victim of domestic abuse by his family even in his California home, on this visit to India his passport and green card were confiscated by his family and he was forced to remain in Agra under their control. Even under this duress, Shivy managed to contact queer feminist resource group Nazariya and other queer rights activists and request their help to come to a safe space in New Delhi. Despite leaving a note informing his family that he was leaving of his own free will, his parents filed a missing person’s complaint with UP Police with the support of Delhi police, harassed, surveilled and threatened the activists who helped Shivy. Subsequently lawyers Menaka Guruswamy and Arundhati Katju, Shivy and the LGBT activists moved the Delhi High Court on September 22 seeking protection for Shivy, his friends and well wishers from harassment, intimidation and coercion, and to ask for the return of his passport and green card from his family.

In an outstanding judgment on the case dated 5th October, 2015, Hon’ble Justice Siddarth Mridul “The present petition highlights and brings to the fore the socio-economic marginalization and exclusion of those whose behavior is considered “inappropriate” by society. It clearly demonstrates that those who do not conform,render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracized severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded”. The judgement reads, “Despite the decision of the Hon’ble Supreme course in National Legal Services Authority v. Union of India and Ors: (2014) 5 SCC 438, the trauma, agony and pain, which members of the transgender community have to undergo continues unabated. It further says, “Every human being has certain inalienable rights. This is a doctrinethat is firmly enshrined in our constitution. Gender identity and Sexual orientation are fundamental to the right of self-determination, dignity and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right tobe recognized in their chosen gender. This view is buttressed by the landmark decision of the Supreme Court in National Legal Services Authority (supra)” Upholding the rights of transgender persons, the judgement also says, “There is, thus, no gainsaying the fact that transgenders enjoy basic human rights including protection from violence and discrimination. They have the right to dignity and self-determination.”

The judgement also mentioned the false FIR lodged against Unknown persons supporting and helping Shivy in the time of help. Mr. Avi Singh, Additional Standing Counsel (Crl.) assured the court that Delhi Police does not intend to take coercive steps either against Shivani or against those who offered to support her. Despite being served notice, there was no representative from respondent No. 2 the State of Uttar Pradesh but the court has issued a direction to respondent No. 2 not to harass or illegally confine anybody from within the territorial jurisdiction of this court except in accordance with the procedure established by law. Shivy says that he is happy with the judgement and he can continue with his life and studies in the US now. Rituparna Borah from Nazariya says, “I am elated with the judgement as it upholds individual freedom and liberty of gender identity and sexual expression. Hope this judgement helps other people who are still struggling and facing custodial violence from family.”

Lesley Esteves, a queer rights activist who was part of Shivy’s support network, said that “I would be proud to have a son like Shivy, unlike his parents Laxminarayan Bhat and Seema Rani Bhat who abysmally failed to support him. Instead they illegally dispossessed him of his documents and confined him against his will because of their severe transphobia and utter disrespect for law. They knowingly filed a false complaint against us with UP Police alleging that he was kidnapped, despite receiving a letter from him that he was leaving of his own free will. Effectively, his abductors tried to charge others with kidnapping, in order to cut off his support system in India. But the parents did not imagine that a court would step in to protect constitutional rights of Shivy and other queer people supporting him. They were firmly rebuked by the court today, when they were told by the judge that he would “end this bigotry today”. We are greatly encouraged by this judgment. The LGBTQIA movement will continue to fight for inalienable rights of transpersons when their families act criminally against them”.

This judgement succeeds the interim order on 22nd September where the Delhi High Court directed the Delhi Police to provide protection to 19-year-old Shivy and LGBTQ activists supporting him from the harassment, intimidation and coercion they are facing by his family. Quoting playwright and activist late Safdar Hashmi who had talked about how our expression is based on the experience that we have, Justice Siddharth Mridul commented on how it was that people are so quick to pass judgement on things they know little about, that may not be their own experience, like sexual orientation. He noted that this was nothing but bigotry, though this is supposed to be a tolerant country.

Delhi High Court Judgement in Shivy’s Case (October 5th 2015) – Orinam Delhi High Court Interim Order_September 22nd 2015

Delhi High Court Interim Order_September 22nd 2015

VIDEOS: 

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PRESS COVERAGE: 

  1. Hindu: HC allows transgender to go back to U.S.
  2. BBC News: India court gives police protection to US transgender man & India court asks police to help US transgender man go home
  3. Firstpost: Delhi HC bats for queer student Shivy, lets him go back home to US
  4. DNA: Transgender boy, Shivy, harassed, beaten by parents &
    Delhi High Court grants police protection to 19-year-old US transgender &
  5. India West: Transgender US College Student Trapped in India
  6. The Hans India: Delhi HC provides protection to NRI transgender rescued from Agra
  7. NYOOZ: Activists hail Delhi HC order on transgender
    UP cops harassing us for helping US transgender, allege LGBT activists
  8. The Indian Express: Activists hail Delhi HC order on transgender
     UP cops harassing us for helping US transgender, allege LGBT activists & Shivy, a transgender, gets back his identity, documents & UP cops harassing us for helping US transgender, allege LGBT activists & Delhi High Court steps in to protect 19-year-old transgender from California
  9. NDTV: Delhi High Court Provides Police Protection to NRI Transgender Rescued from Agra
  10. Bharat Press: My Family is No Safe Place for Me: Transgender NRI
  11. Deccan Herald: HC gives protection to NRI transgender ‘forcibly’ brought here
  12. Daijiworld: My Family is No Safe Place for Me: Transgender NRI
  13. Press Trust of India: HC gives protection to NRI transgender
  14. Business Standard: My Family is No Safe Place for Me: Transgender NRI
    HC gives protection to NRI transgender “forcibly” brought to India
  15. New Kerala: My Family is No Safe Place for Me: Transgender NRI
  16. CanIndia News: My Family is No Safe Place for Me: Transgender NRI
  17. Times of India: Delhi HC gives protection to NRI transgender “forcibly” brought to India & Gender identity key to control one’s life: HC
  18. India: HC gives protection to NRI transgender “forcibly” brought to India
  19. The Huffington Post: WATCH: 19-year-old Indian-Origin Transgender Man Needs Your Help
  20. ScoopWhoop: 19-Year-Old Forced To Stay In India By Parents Gets Help From Delhi HC
    ‘My Parents Abused Me Verbally & Physically’. Indian-American Transperson Opens Up About Harassment
  21. The Quint: A Happy Ending: Trans Teen Shivy Sent Home to the US by Delhi HC#MakeOutInIndia: NRI Trans Man Appeals Against His Parents & Sex Reasons The Quint Wants to Make Out in India
  22. iDiva: A Horrid Tale of a 19-Year-Old Trans Person Abused by Parents for Not Being a ‘Proper Girl’ & This tale of two transgender children Shivy and Paddy McGuire will move you to tears
  23. Youth ki Awaaz: Forced Into Becoming A Proper Girl By Parents, Trans Teen Shivy Escapes To Share Stpry
  24. Gayapolis: Transgender Man in India Get Court Protection from Abusive Parents
  25. Storypick: An Indian Transperson Talks About How His Parents Tried To Fix Him & It’s Distressing
  26. Yahoo News UK: Transgender man tricked by Indian parents secures police protection
  27. Livemint: ‘There is no reason why I should go through this’: a first-person account of a teenage trans-man & Delhi High Court’s warning to intolerant families
  28. Human Rights Watch: Dispatches: Delhi Court Protects Transgender Teen
  29. PinkNews: Indian court protects trans man ‘forced into arranged marriage’ with another man
  30. Zee News: My family is no safe place for me: Transgender NRI
  31. FTC Publications: India court protects US transgender man
  32. Buzzfeed: 11 Of The Most Gender-Progressive Things That Have Already Happened In India In 2015 & The Transgender Man Trapped In India By His Parents Is Finally Being Allowed To Return To The U.S.
  33. LGBTQNation: Family tries to “fix” their trangender son by tricking him into an arranged marriage
  34. Business Standard: HC allows NRI transgender to return to US
  35. LiveLaw: Rights of Sexual Minorities – A wake up call !
  36. The free Press Journal: Time ripe to bring transgenders into maintstream: High Court
  37. Queerty: Family Tries To “Fix” Their Transgender Son By Tricking Him Into An Arranged Marriage

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