Submissions

Dereliction of the Transgender Persons (Protection of Rights) Act, 2019

Pratibha Singh
Maharashtra National Law University, Aurangabad, 2nd Year

It was the most awaited day, the Transgenders thought it would finally justify their existence and way of living. They would finally be recognised without being discriminated on the basis of their gender was the pinnacle they had. Unfortunately, the bill again had various loopholes which lead into no less than a disaster. Where on one side we thought of certain developments which would result to be an effective implementation of having an unbiased society. The bill was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot. The Bill defines a trans person as someone whose gender does not match the one assigned at birth. It prohibits discrimination against them in employment, education, housing, healthcare and other services. It went under a 31-member parliamentary standing committee on August 5 2019, despite being highly criticized by the opposition as well as the members of the community. The community protested around the country for the changes in the bill, claiming that the Central Government showed a poor understanding of gender and sexual identity. The bill has now been passed by the Rajya Sabha and is now an Act, even after being opposed while the bill being drafted, no one from the community was asked about their needs and requirements. The Transgender Persons (Protection of Rights) Bill, 2019 was later passed by Parliament on November 26, 2019 it was certain that the bill was not in much talks due to the controversy being overtaken by the Abrogation of Article 370. Our Preamble which stands for the term ‘EQUALITY’. The Act proved out to be the nadir of the term. On the points which had to be expatiate of was completely seen ignorant in the Act. Whereas on the other hand it brought in various hurdles to justify the term equality. It was no doubt of the bill being hastily drafted. Mere assumptions were made based on stereotypes and prejudiced nature of the drafters.
There are certain major discrepancies over which the community has been protesting over since the time the bill was introduced and even after being passed by the Rajya Sabha. The community in Section 4 to 7 is imposed to prove a certification which is not in the case of the cis-genders. Section 4(2) which clearly states that only after recognition or certification by the District Magistrate the transgender persons shall have the right to their “self-perceived identity”. The district magistrate will issue a gender identity certificate based on its recommendations. The act makes identity only after identification from the state. Hence this leads to the equality crisis. Justice Radhakrishnan in the case of National Legal Service Authority Vs Union of India said that gender identity is a fundamental choice and is protected under Article 19 and Article 21. Here, where the self-identity is clause is exclusively made for the transgender persons and not the cis-genders. This leads to the violation of Article 14 which states ‘Equality before law’. This provision is hence unconstitutional and discriminatory in nature. The certificate holder can apply for the change in gender certificate which informs the authorities, in the second stage as the author states that it should “satisfy the correctness of such certificate” It puts every power to the state to tell who is qualified to be recognised and who is not.
Decadent Punishment
In a county which has humongous population in every corner leads into various possibilities of high crime rates. This raises a concern in the spike of the criminal cases which is paving it way to lead to an uncontrolble Rape culture. The punishments mentioned for offences committed against the transgender persons is less severe in front of the crimes committed against women. For instance, Sexual harassment committed against a woman under Criminal Law (Amendment) Act, 2013, Section 354 A results in imprisonment till three years or in rape cases under Section 376 of the Indian Penal Code leads to punishments which may be rigorous imprisonment not less than 7 years, which may also extend to life imprisonment, and fine. Whereas, in the case of the transgenders under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 the punishments have been ranging from six months till two years. This shows how crimes committed against a section of society has been lightly addressed. The community has raised a concern that the crimes or offences committed against them are depicted of not them not being of greater importance or value. This violates Article 15 secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or any of them. This provision specifically leads to the discrimination the grounds of sex. In an incident at Ajmer which is 200km away from Jaipur in which Transgender alleges gang-rape by the cops. It was a custodial rape and the police constables forced the Mumbai-based transgender, who came to Ajmer to offer prayers for an oral sex first and made a video clipping of it. Such crimes have taken a spike in recent years. The transgenders have been brutally treated and no strict actions have been taken. These are violative of the basic structure of the fundamental rights provided to every citizen irrespective of any sex or gender.
There are certain more elements which had to be taken into account, Marriage and adoption are still a huge issue for sexual minorities, says Vijaya Mallika, who is a trans women and winner of the Vayalar Ramavarma Poetry Award 2019 . In India there are many struggles a trans-couple faces to get married even if they are transmen or transwomen. They need to prove an identity card of cismale and cisfemale. Which again bears as a huge difficulty and it is not in the case of the non-trans couple. According to the rules the transgenders are not allowed to adopt children legally. The Act has shown to have many lacunas in it and has drastically failed to cover the essential needs of the community one of which is to provide the Transgender Community the Adoption Rights. Right to adopt and the right to be adopted can also be raised as a concern of the fundamental right under Article 21 after the case of Shabnam Hashmi v. Union of India. Adopting rights should be allowed to the LGBTQ community as well. There is no law in the country which speaks about the adoption of the community, yet illegal adoption prevails in some states like Tamil Nadu.
Conclusion
In a country which stands for providing basic fundamental rights and is on the path of being a developing country there is a great need of development and improvement in the policies. Scrapping down Section 377 in the landmark case of Navtej Singh Johar & Ors. v. Union of India , made the Supreme Court of India rewrite history and paved way for accepting every citizen of India for the way they are irrespective of any discrimination and giving them a dignified life to live. The Act which talks about the transgender people has been having special provisions for them. The Act on has been having a backlogging effect over certain issues as that of punishments, self-identity etc. These are some major fights which is yet to be fought by the community. There should be acceptance of the gender-neutral laws which will which be effective for all the genders and their self-developments.