CRITICAL ANALYSIS OF THE RECENT TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
According to the 2011 census more than
4.80 lakhs transgender has been calculated in the population of India. The law
had recognized only two genders, namely men and women in criminal as well as in
civil laws, by the passage of time, many changes have happened. In 2014 major
impetus to transgender rights were given by the judgment of the case NALSA vs.
Union of India where the Supreme Court Of India recognize the third gender that is
transgender. Then, in the case Navtej Singh Johar vs. Union of India,
the landmark judgment was given by the Supreme Court of India which decriminalized a part of Section 377 of Indian Penal Code and barred even
consensual homosexual sex between adults. The Supreme Court of India introduces
the doctrine of progressive realization of rights which means the law should be based on modern ethics, sensible and easy to apply and the state should take appropriate
measures for the progressive realization to social, economic and cultural
rights. The doctrine of progressive realization gives birth to the doctrine of
non-retrogression which states that the state should take necessary steps to
lead retrogression to the enjoyment of rights by every citizen of any gender.
And the following judgment also led the government to pass and bring the bill
for the protection and development of the LGBTQ community.
The need for the Transgender Persons
(Protection of Rights) Bill, 2016 rises by the order of the Supreme Court of
India by the NALSA judgment. The bill, 2016 highlights many rights and
penalties for violation of those rights in the favor of the third gender,
Transgender.
The bill was passed by the Lok Sabha (one of
the House of the Parliament of India) on 17th December 2018. The bill defines
transgender as a third gender and it prohibits discrimination against them. It
also highlights the following laws-
- Prohibition of discrimination against transgender in different spares, such as- education, jobs, entry, and worship at the religious place, any social and political spares.
- The bill criminalizes begging by transgender persons.
- It also recognizes the procedure of transgender to get their certificate.
- The bill establishes the right to residence of the transgender person.
- The bill establishes penalties for the different offenses against transgender like compelling and forcing transgender person for begging, physically and sexually assaulted and also against mental cruelty.
- The bill establishes the punishment of two years of imprisonment or fine or both for all the offenses and it was one of the drawbacks of the bill, 2016.
- The bill was against the self-identified gender expression because transgender was required to get the certificate after the physical examination by the court which results in defamation of their identity and undermined right to self-identification as per NALSA judgment.
- The bill does not provide any reservation to the Transgender community as they are the minority and for their development in the society, it is necessary to provide them reservation and uplift their community to let them enjoy their living.
- The bill, 2016 criminalizes the begging by transgender and made a penalty against it. This results in a high threat to livelihood because more than half of the population of transgender in India depends on the money which they earn from it.
- The bill, 2016 imposes the same kind of punishment or penalty for all the offenses against transgender. In the criteria of sexually abuse offenses like harassment, rape and many more, the punishment imposed was only two years or fine or both which was not satisfactory. Hence, there is a need for establishing some kind of punishment just like offenses in the Indian Penal Code to makes stability and equality in society.
- The bill, 2016 does not consist of any civil rights; in other words, the legislature does not recognize any civil rights such as the right to property of transgender in their family property, transgender marriage, their divorce and many more. It is also one of the strongest loopholes in the bill.
- The judgment by The Supreme Court of India order to have a welfare board or say welfare commission for the Transgender people which will work in favor of the transgender people but according to this bill no such national commission was established and no such provision regarding the welfare board of transgender was made.
- The bill, 2016 established a bar on transgender for the separation from their family.
- The bill gives preciously the definition of transgender which was not given in all the previous bills. It clearly describes who are they? And describe them as the third gender of society.
- The bill also prohibits discrimination against transgender people in the social as well as political spares.
- The bill gives a right to the residence to the transgender people. If they do not have any place to reside then they can use the re-habitation center to live which is established by the government of India.
- The bill gives them an equal opportunity just like other citizens in the field of employment, schooling, and other spares. The word discrimination against them is fully abolished.
- They get equal opportunities to get treated in hospitals and health center just like other citizens.
- The certificate of character by the bill 2019 only needs self-declaration, not the physical test that was taken in previous bills which hurts the character and privacy of the transgender got abolished. Now merely declaration in front of the district judge becomes valuable and valid.
- The bill consists of many welfare measures by the government.
- As per the judgment of the NALSA, the bill orders to establish a National Council for Transgender People (NCT) which will do work for the transgender people and helps to develop them and provide them an equal opportunity just like other citizens and genders of India.
- The offenses like forced banded labor of transgender, denial the transgender to use public places and religious places, removal transgender from their household and villages, abuse the transgender verbally, physically, mentally and sexually, etc. doer will be liable for the punishment of imprisonment of minimum six months that can extend to two years or fine or both.
The Transgender Persons Bill, 2016 was consist
of many drawbacks which makes the law inefficient and this inefficiency lead to
the need for revised bill due to the following reasons-
The Transgender (Protection of Rights) Bill, 2019
The Transgender (Protection of Rights)
Bill, 2019 came after the series of many bills and with alteration in it. At
last, the legislature after too many attempts came up with an appropriate bill
which covers all the aspect of the rights of transgender people but as well as
many loopholes. In the bills of 2016, 2018 there was a lack of inconsistency
which led to the protest by LGBTQ community and this results in the birth of
the bill of 2019, however, the transgender bill 2019 also does not cover all
the aspects of the judgment of NALSA vs. Union of India but it has
stopped the protest by the citizens of the country.
The transgender bill, 2019 was passed by the
Lok Sabha on the 19th of July 2019 but now Rajya Sabha also passed it and now
the bill is waiting for the President confirmation, after that it will become
an act. The bill defines transgender people as follows- “Transgender people
have a gender identity or gender expression that differs from their assigned
sex. Some transgender people who desire medical assistance to transition from
one sex to another identify as transsexual.’’ Hence this bill that is the
transgender people bill, 2019 gives preciously definition of the transgender
people and also highlights many other laws that give the transgender a respectful
life and liberty, freedom to their lives. In other words, the bill defines a
transgender person as one whose gender does not match the gender assigned at
birth. It includes trans-men and trans-women, persons with intersex variations,
gender-queers, and persons with socio-cultural identities, such as kinnar and
hijra. Intersex variations are determined to mean a person who at birth shows a
variation in his or her primary sexual characteristics, external genitalia,
chromosomes, or hormones from the normative standard of a male or female body.
The 2018 bill passed by the Lok Sabha was
widely criticized by transgender persons, activists, students, and lawyers.
Transgender persons protested in various cities in India calling the provisions
regressive and in violation of the Supreme Court judgment in 2014. The
criminalization of begging under the 2018 bill was to affect transgender
persons in India, such as hijras and jogtas who engage in begging as a
ritual-custom while some rely on it for livelihood. The provision of the
District Screening Committee had also left gaps for incompetence and prejudice
and was supposedly done to filter out imposters from seeking benefits of
government welfare schemes. The definition of transgender persons under the
2018 bill, retained by the 2019 act, was also reported to be at variance with
international expert understanding of the term. The bills have been met with
protests by transgender persons. Their passing by the Lok Sabha has been
referred to some transgender persons as "black day" and "gender
justice murder day". Yet others have described the 2018 bill as
"draconian and discriminatory". Protestors alleged the 2018 bill to
be institutionalizing violence and claimed neglect of recommendations made by
the Standing Committee and transgender persons.
The following are the features of the
Transgender People Bill, 2019. They are-
National Council for the Transgender People (NCT)
As per the judgment of NALSA vs. Union of India,
the Supreme Court declares some guidelines regarding the protection of
transgender people which now has been admitted in the transgender people bill,
2019. One of the most important order was to establish a welfare forum for the
transgender people, the forum will have functions regarding the transgender
people to protect from any abuse and develop their community.
By the order of the Supreme Court of India,
the legislature has established the National Council for the Transgender People
which will have the following functions-
According
to section 16 of the Transgender Bill, 2019 the National Council for
Transgender people shall constitute by –
(1) The Central Government shall by
notification constitute a National Council for Transgender Persons to exercise
the powers conferred on, and to perform the functions assigned to it, under
this Act.
(2) The National Council shall consist of—
(a) The Union Minister-in-charge of the
Ministry of Social Justice and Empowerment, Chairperson, ex officio;
(b) The Minister of State, in-charge of
the Ministry of Social Justice and Empowerment in the Government,
Vice-Chairperson, ex officio;
(c) Secretary to the Government of India
in-charge of the Ministry of Social Justice and Empowerment, Member, ex
officio;
(d) one representative each from the
Ministries of Health and Family Welfare, Home Affairs, Housing, and Urban
Affairs, Minority Affairs, Human Resources Development, Rural Development,
Labour and Employment and Departments of Legal Affairs, Pensions and Pensioners
Welfare and National Institute for Transforming India Aayog, not below the rank
of Joint Secretaries to the Government of India, Members, ex officio;
(e) one representative each from the National
Human Rights Commission and National Commission for Women, not below the rank
of Joint Secretaries to the Government of India, Members, ex officio;
(f) representatives of the State Governments
and Union territories by rotation, one each from the North, South, East, West
and North-East regions, to be nominated by the Central Government, Members, ex
officio;
(g) five representatives of the transgender
community, by rotation, from the State Governments and Union territories, one
each from the North, South, East, West and North-East regions, to be nominated
by the Central Government, Members;
(h) Five experts, to represent
non-governmental organizations or associations, working for the welfare of
transgender persons, to be nominated by the Central Government, Members;
and
(i) Joint Secretary to the Government of India
in the Ministry of Social Justice and Empowerment dealing with the welfare of
the transgender persons, Member Secretary, ex officio.
(3) A Member of National Council, other
than ex officio member, shall hold office for a term of three years from the
date of his nomination.’’[1]
According
to Section 17 of the Transgender bill, 2019, the functions of the National
Council of Transgender People are-
The National Council shall perform the
following functions, namely:—
(a) To advise the Central Government on
the formulation of policies, programs, legislation, and projects concerning
transgender persons;
(b) To monitor and evaluate the impact of
policies and programs designed for achieving equality and full participation of
transgender persons;
(c) To review and coordinate the
activities of all the departments of Government and other Governmental and
non-Governmental Organisations which are dealing with matters relating to
transgender persons;
(d) To redress the grievances of transgender
persons; and
(e) To perform such other functions as may be
prescribed by the Central Government.[2]
Remaining Bottlenecks in the
Transgender Bill, 2019
The bill has the problem of nomenclature as it only based
on transgender community no other minority community from LGBTQ (lesbian, gay,
bisexual, transgender and queer) does not add in the bill. It would be more
appropriate to focus on all the majority community rights rather than only
transgender rights. The bill is against the spirit of self-perceived identity
and it states unclear picture of the term self-perceived as the bill states
that the person will be recognized as transgender only if the person gets the
certificate of transgender by the district magistrate.
If the transgender does not provide any
certificate from district magistrate then there is no law or provision
regarding appeal or review against the order of the magistrate. The
standing committee does not establish any role of chief medical officer in the
process of getting the certificate of transgender which led to misuse of the
certificate. However, the 2019 bill removes the provisions for the district
screening committee and lets the powers lay only on district magistrate. The
criminal as well as civil laws only recognize two kinds of gender that are men
and women, the bill 2019 recognizes the third gender the transgender but it
does not clarify whether other laws will prevail on the third gender or not.
The bill only emphasizes or declares
punishment only on nine types of offenses but the crimes and offenses are
multi-dimensional and it cannot be rigid under only nine types. The bill does
not include any reservation. Hence to develop and uplift the transgender, the
reservation is required. There is lighter punishment for higher crimes which
means the bill only imposes a maximum of two years of punishment whether it is
sexual or verbal abuse. This is one of the biggest loopholes in the bill. The
commission for the welfare of transgender is established only on the national
stage. Therefore, the only national commission is not enough for the welfare or
development of the transgender. The bill states the sex-selective reassignment
surgeries will also lead the people to become transgender. This has been
criticized by many activists, they say the bill is forcing people to have
nonconsensual surgeries and encourage them to have surgeries.
Lacunas addre
·
Decriminalized begging- Due to the lack of opportunity of employment and jobs the
transgender were forced to do begging which was criminalized by the bill 2016,
the same was criminalize in the bill 2019. It results in harm to the livelihood
of the transgender.
·
No district screening committee – In earlier bill screening committee was to give its
assent to the district magistrate for issuing the certificate of identity. The
same was taken in the transgender bill, 2019.
Conclusion
The Transgender People Bill, 2019 has come by
a lot of discussion in the society as well as The Parliament, a lot of
revisions, amendment took place. The legislature has done its best according to
the orders by The Supreme Court of India. However, the bill still left more
questions unanswered and unsolved than the concern it aims to address and the
bill may not be very helpful for the transgender community and the bill is also
required to reconsider because of its shortcomings. There are many more
lacunae in the Transgender Persons (Protection of Rights) Bill 2019, which were
not addressed by the Rajya Sabha in their haste. In the days leading up to its
passage, many from the community also took to the streets and social media,
asking the Rajya Sabha to slow down and reconsider by referring the Bill to a
select committee, but it seems their cries have gone in vain. Since the Bill
was passed, the transgender community and their allies in cities like
Bengaluru, Delhi, and Pune have erupted in protest, urging President Ram Nath
Kovind not to give his assent, which if he does, will turn the Bill into an
enforceable Act - something that spells despair for most of the transgender community.
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