Transgender Persons (Protection Of Rights) Act, 2019 And Its Impact On Article 14,19 And 21 By - Arya Singh
Transgender
Persons (Protection Of Rights) Act, 2019 And Its Impact On Article 14,19 And 21
Authored By - Arya Singh
INTRODUCTION
AND BACKGROUND
According
to the Down-to-earth Survey, there are around 4.8 million people who identify
as transgender persons in India. However, due to their conduct and life choices
deviating from the "normal" paradigm, transgender people deal with
the stigma and preconceived views about them from society. A
transgender child is rarely accepted in an Indian family, even till now.
We
have seen the persistence of transgender people through the medieval and modern
times as well. In the recent times, the awareness regarding the rights of
transgender persons has been ever increasing. We have witnessed lots of
movements for the assurance of the rights of the LGBT+ community, especially
the transgender people. These movements gained momentum around 2006 and after
no proper response by the Government, a case was filed again the Indian
Government. The verdict of the case, i.e., National Legal Services Authority
vs Union of India[1]
came in favour of transgender persons and declared them as the “third” gender.
This judgement was a game-changer as it gave various directions to the
government regarding the protection of the rights of the transgender people.
THE
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
This Act came as the legislative product of the NALSA
Judgement. The Act contains 23 sections which are roughly divided into 9
chapters. The transgender community is not happy with the act as it does not
fulfil their demands properly, and tries to control their actions and
decisions. The Sections 4, 5, 6, 7, 16(g), 18(a) and 18(d) are the sections
which are problematic as they infringe upon the fundamental rights of the
transgender people primarily guaranteed under Article 14, 19 and 21.
Section-Wise Analysis of The Transgender Persons
Act:
The
various sections mentioned above talk about granting the rights to the
transgender people and fulfilling their needs, but still does not eliminate the
element of government control. The act has, in fact, indirectly allocated very
arbitrary powers to the government, especially in the hands of its officials.[2]
1)
Affects Self-Identification (Gender
Identity): (Article 19 and 21)
Section 4 talks about recognition of the identity of the
transgender people.[3]
The problem with this section is that it does not differentiate between the
transgender persons, intersex, transsexuals, and genderqueer.
Section 5 states the
need for applying for the certificate of identity with the District Magistrate.[4]
This is tricky as it compels the transgender community to engage with this
biased bureaucracy.
Section 6 talks about
the issuing of a certificate of identity by a District Magistrate[5]
after following due procedure which “indicates” the gender of the person.
Section 7 focuses on
determination of gender of the person after surgery only upon the issuing of a
certificate by the Chief Medical Officer or a Medical Superintendent[6]
of a medical establishment.
Section
7(3) also allows then to change only their first name[7],
meaning that they cannot give up their surnames. This is troublesome for people
who would like to take up the name of their Gurus as surnames.
These
provisions gravely limit their right to self-identity which is enshrined
under Article 19(1)(a), and can also lead to bureaucratic manipulation.
This also violates
Article 21 as a right to choose one’s gender identity is integral to live a
life with dignity and is hence protected under the right to life.
The Court
in Navtej Singh Johar v. Union of India[8]
said:
“The
emphasis on the unique being of an individual is the salt of his/her life.
Denial of self-expression is inviting death.”
2)
Right to Voice Their Opinions Duly:
(Article 19)
Section
16(g) proposes five transgender people from all over India to be a
part of the National Council for Transgender Persons[9].
This is a very tiny number as compared to the present transgender population.
This will lead to improper voicing of their concerns and will lead to the
infringement of their Right to freedom of speech and expression under Article
19(1)(a).
3)
Infringes on Their Right to
Equality: (Article 14)
As per Section
18(a) the government penalises bonded labour,[10]
but fails to properly draw a border around it.
Section
18(d) talks about the punishment in case of physical or sexual
abuse, or any abuse of some other kind.[11]
The punishment stated is at minimum six months and can extend to two full
years, with fine.
The problem
here is that the maximum sentence for sexual assault against transgender people
is two years in prison, whereas identical offences against women are punishable
by three years to life imprisonment[12]
under the Indian Penal Code, 1860. This violates Article 14 and compromises
their right to equality.
A
case was filed in the Supreme Court of India. It is still pending in the apex
court, and it aims to challenge the act on the grounds that it is violating
Article 14,15,19, and 21 of the Indian Constitution.[13]
The
Government in 2020 tried to amend the provisions of the Transgender Persons
2019 and brought in the Transgender Rules 2020 for the same. But they too had
some flaws, and violated Article 19(1)(e), 19(1)(d), and 21 of the
Constitution, by making one-year residence at the same place compulsory for
issuance of a certificate, and stressing on the need for a psychologist report[14], which indirectly became
the basis for self-identification. This was really disappointing for the
transgender community.
CONCLUSION
Therefore, after looking
at the act and its provisions, and by reading it alongside the Constitution of
India and the SC judgements, we can see that it is violating the fundamental
rights of the Constitution in various ways. The government has not complied
with the guidelines of the Courts given in the two judgements.
The Act outlines human
rights w.r.t. its legal application, but ends up reducing them to
mere legislative amendments with limited implementation due to the
indolence of the state machinery. This
has resulted into growing dissatisfaction amongst the transgender community.
As quoted in the NALSA
Judgement, the court said:
“Seldom,
our society realizes or cares to realize the trauma, agony, and pain which the
members of Transgender community undergo, nor appreciates the innate feelings
of the members of the Transgender community, especially of those whose mind and
body disown their biological sex.”[15]
The only viable option
left with the government is to amend the act in such a way that it grants the
transgender people the basic rights that they have been fighting for, since
decades.
[1] AIR
2014 SC 1863
[2] Manini
Syali and Vinayak Jhamb, 'Mishandling the Issue of Gender Dysphoria in India -
An Analysis Of The Transgender Persons (Protection Of Rights) Act, 2019' (Inder
Science Online, 2021)
accessed 2 September 2022.
[4] The
Transgender Persons (Protection of Rights) Act, 2019, §5.
[13] Grace
Banu Ganeshan & Ors. v. Union of India & anr. W.P.
(Civil) No. 406/2020 (2020)
[14] 'Draft
Transgender Persons (Protection of Rights) Rules, 2020' (PRS Legislative
Research, 2020)
accessed 2 September 2022.
[15] Aastha
Khanna and Divesh Sawhney, 'NALSA Judgment: Critique of The Indian Perspective
Beyond the Adams-And-Eves Worldview - Global Freedom of Expression' (Global
Freedom of Expression, 2020)