Area of Research and aim of the paper
This paper centres around the Transgender People (Protection of Rights) Bill of 2019. It lays down the mandate of the NALSA judgement and briefly discusses the introduction of the 2016 bill. It further focuses on crucial questions raised by Swati Baruah’s petition regarding the 2019 bill and contests the constitutionality of the same under Articles 14, 16, 19 and 21. It conclude by providing recommendations that are deemed to be appropriate to mitigate the stigma and prejudice encountered by the community.
History behind introduction of bill
NALSA judgement and its mandate
In the National Legal Services Authority v. Union of India case, the Supreme Court recognised Hijras, Eunuchs etc as the “third gender” and provided for safeguarding their rights under the Indian Constitution. It placed the power of self-identification to such transgender people curtailed the state’s power of intervention in such identification, directed the agents of the state to provide legal recognition and welfare schemes for the same. Owing to this a committee constituting the Ministry of Social Justice & Empowerment submitted a report in 2014, which provided recommendations for empowerment of and affirmative action for the trans community.[1]
Introduction of the 2016 bill
Consequently, the Transgender People (Protection of Rights) Bill was introduced in the Lok Sabha in 2016. The bill stated that the transgender people are incomplete through a binary definition for their identity and failed to give them individual agency. It mandated the verification by a District Screening Committee for the recognition of the trans persons which goes against the NALSA’s judgement. It failed to provide adequate punishment for offences against such persons with no clear definition for what constitutes a certain offence. It spoke about inclusivity but didn’t address basic needs such as that of gender-neutral washrooms. It barely understood the complexity behind being a transgender person and was far from being progressive and helpful towards the community in any aspect.[2] . It faced tremendous backlash owing to its discriminatory nature leading to the introduction of the Transgender People (Protection of Rights) Bill of 2019 in the parliament. It was passed in both houses of the parliament and turned into an act on 5th of December, 2019. Crucial constitutionality questions were raised by Swati Bidhan Baruah’s petition against the passing of the bill. The same has been discussed at length below.
Constitutionality of the 2019 bill
Similar to the 2016 bill, the bill of 2019 was also extremely problematic and insensitive in nature. The ‘insensitive’ bill had certain draft rules added to it on April 18, 2020 which was deliberately made during the inconvenient COVID situation and fails to follow its own pre-legislative consultation policy. The said bill is appallingly ambiguous in nature and leaves a wide area for interpretation at the hands of the state. It takes away the agency of trans persons by placing authority in the hands of the different representatives of the state with regard to their identification and autonomy.[3] The constitutional challenges to the above mentioned bill are.
The Equality challenge
Sections 4 -7 of the bill were contested on the ground of right to equality under Article 14 by Ms. Baruah’s petition.[4]The mentioned sections place the burden on trans persons to “recognise” as one and lays down the procedure to attain it. This itself is discriminatory in nature as the same burden hasn’t been placed on cisgender people. Such practise originates from the longstanding “norm” of assuming that cisgender is what is “natural” whereas, being transgender is either unnatural or an exception, as it isn’t the gender identity assigned to them at birth. Moreover under this act, transgender people would only attain their trans identity post they’ve been “recognised” by the state. Therefore, they won’t be beneficiaries of the welfare schemes unless the agents of the state “recognise” their “self-perceived identity”.[5] This itself is unconstitutional in nature and denies the community their right to equality. This further violates the mandate of the NALSA judgement wherein, the court held that gender identity is a fundamental right of a citizen under Articles 19 and 21.[6] Therefore, the constitution clearly provides for an equal treatment of cis and trans persons however, this is violated by the said act.[7]
The Non-Discrimination Challenge
A right provided by an act cannot be imposed until backed by a punishment. The petition by Ms. Baruah points out the lack of such remedy under Section 3 of the act.[8] It provides for numerous non-discrimination provisions however, fails to mention the penalty in case of non-compliance. Articles 17 and 23 of the constitution empower citizens with rights against untouchability and forced labour.[9] It further provides for remedies in case of breach of the mentioned provisions.[10] Therefore, right to equality under Article 14 is being breached upon by the act as it fails to provide rights backed by remedies for trans persons, as if affirming to the norm of treating transgenders with less to no respect in comparison to cisgender people.[11]
The transgender community is quite vulnerable owing to the existing societal norms against them. In order to bring them at power with the rest of the society, it is of utmost importance to ensure their safety before providing them with other facilities. However, Section 18 under the Transgender People’s act itself discriminates against them by imposing lesser punishment or penalties against the ones who abuse or violate trans people and their rights.[12]
The Affirmative Action Challenge
Equality under Article 14 can only be provided among equals[13]. As transgenders are treated unequally owing to their gender, reservations and affirmative action is necessary to uplift their position in the society and being them at power with the others. Moreover, they can only avail such reservation schemes once they are treated as the “socially and educationally backward class” under Articles 15 and 16,[14] as upheld by the NALSA judgement.[15] Positive discrimination is a “facet of equality” as contended by Ms. Baruah in her petition as well.
In the N.M. Thomas case[16], the Supreme court upheld the same. Moreover, state is obligated to provide such reservations, not something at its discretion. However, overtime this principles upheld by the NALSA judgement hasn’t been followed therefore, the same needs to be clarified and reiterated in order to impose the “power plus duty” principles regarding the government.[17]
The Self-Determination and Choice Challenge
Section 4-6 of the act prescribes “recognition” of the transgender person by the state before “self-perceived gender identity”.[18] It places the power in the hands of the state for identifying the gender identity of the trans person therefore, depriving them of their rights under Articles 19 and 21.[19] In NALSA v Union of India,[20] the court held that the gender identity of a person was safeguarded under Articles 19 and 21 of the Indian Constitution. It stated that one’s gender is an integral part of the right to free expression, life, dignity and autonomy under Articles 19(1)(a) and 21.[21] Moreover in Puttaswamy (I) v Union of India,[22] the court held that right to privacy under Article 21 provided citizens with the freedom to take decisions regarding their autonomy and their own personhood, therefore curtailing state’s power of intervention. However, the above mentioned sections of the act provide the court with the authority to certify or not certify someone as a trans person irrespective of the person’s opinion or choice. Further, the section is outrightly vague and provides no guidelines which are to be followed for such determination. It is completely at the discretion of the agent of the state. This is clearly unconstitutional in nature. [23]
Moreover, Section 12 of the act empowers the state to send trans persons to rehabilitation centres’, if and when they are abandoned by their birth families.[24] This takes away their right to reside and imposes a state controlled mechanism on them. Rather than letting them choose the shelter they’re comfortable in, the state is behaving in a mala fide manner and trying to do away with the alternative family structure such as the gharanas that the trans community falls back upon.[25]Consent by the transgender person itself isn’t taken into account at all. This further encroaches upon their fundamental rights provided under Articles 19 and 21.
[1] Goyal, A. (2020, June 25). Transgender Persons (Protection of Rights) Act, 2019: Enduring Struggle for Gender Rights Recognition. Retrieved on December 11, 2020, from https://www.scconline.com/blog/post/2020/06/25/transgender-persons-protection-of-rights-act-2019-enduring-struggle-for-gender-rights-recognition/.
[2] Banerjie, A. (2016, August 18). How the Transgender bill discriminates against the very people it claims to protect. Retrieved on December 11, 2020, from https://caravanmagazine.in/vantage/transgender-bill-discriminates-people-claims-protect.
[3] Singh, P & Shankar, G. (2020, May 05). Modi govt. releasing draft rules on Transgender Persons Act in lockdown a blow to the community. Retrieved on December 11, 2020, from https://theprint.in/opinion/modi-govt-releasing-draft-rules-transgender-persons-act-lockdown-a-blow/414331/.
[4] The Indian Constitution, 1950, Art. 14.
[5] The Gazette of India (2019, December 05). Transgender People (Protection of Rights) Act, 2019. Retrieved on December 11, 2020, from http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.
[6] AIR 2014 SC 1863.
[7] Bhatia, Gautam. (2020, January 31). The Constitutional Challenge to the Transgender Act. Retrieved on December 11, 2020, from https://indconlawphil.wordpress.com/?s=transgender+persons+protection+of+rights+bill+2019.
[8] Ibid 7.
[9] The Indian Constitution, 1950, Art. 17 & 23.
[10] Ibid 10.
[11] Ibid 7.
[12] Ibid 7.
[13] The Indian Constitution, 1950, Art. 14.
[14] The Indian Constitution, 1950, Art. 15 & 16.
[15] AIR 2014 SC 1863.
[16] AIR 1976 SC 490.
[17] Bhatia, Gautam. (2020, Feburary 05). Why Assam’s first Trans judge is unhappy?. Retrieved on December 11, 2020, from https://www.article-14.com/post/why-assam-s-first-trans-judge-wants-the-new-transgender-law-withdrawn.
[18] The Gazette of India (2019, December 05). Transgender People (Protection of Rights) Act, 2019. Retrieved on December 11, 2020, from http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.
[19] The Indian Constitution, 1950, Art. 19 & 21.
[20] AIR 2014 SC 1863.
[21] Supreme Court Observer. (n.d.). Challenge to Transgender Persons Act. Retrieved on December 11, 2020, from https://www.scobserver.in/court-case/challenge-to-transgender-act.
[22] AIR 1963 SC 1295.
[23] Ibid 7.
[24] The Gazette of India (2019, December 05). Transgender People (Protection of Rights) Act, 2019. Retrieved on December 11, 2020, from http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.
[25] PRS Legislative Research. (n.d.). Transgender People (Protection of Rights) Bill, 2019. Retrieved on December 11, 2020, from https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2019.
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