ANALYSIS OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2018
– Sindhu Suresh465 &
– S. Varada466
Though India gained independence in 1947, it was only in 2014 that the transgender community was recognized as the third gender by the Supreme Court. The legislature drafted a bill following the judgment to provide protection to the community. The research was done to critically analyze the bill and to examine whether the bill actually fulfill its requirement. The doctrinal method was employed in the research. The research was done through a comparative analysis on the social issues, existing laws, and various Constitutional provisions. The research was done to examine whether a mere enactment of a legislation providing rights can solve the issues faced by the community
In the paper we have tried to analyze the shortcomings of the legislation by comparing it with the judgment of the Supreme Court and policies of Pakistan and Bangladesh. These countries were chosen as they used to be part of India at a point and share similar culture. The researchers have come to certain conclusions regarding the efficiency of the Bill. Enactment of a mere legislation cannot improve the conditions of the community as the discrimination they faced was not just from the society but also from the state and its unfair laws. Another issue is the lack of gender neutral laws in the Indian Penal Code which makes the community vulnerable to exploitative forces. Henceforth a comprehensive legislation is required to combat the issues faced by the community.
TRANSGENDER AND SOCIETY
Transgender is a blanket term referred to persons whose gender expression, behaviour, identity differs from that of the norms expected from their sex at birth. Their community comprises Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiva-Shakthis and references of them are also made in the ancient texts like Arthashastra467. They were given much respect and privileges in the past and were given the status of third Gender and were given high position during the Moghuls reign. When the British colonized the Indian Territory, they could not comprehend the fact that the Hijras were given respect and positions in the royal court, post 19th Century they tried to rigorously osctracize the community.
Post-Colonization they faced much discrimination due to the laws imposed by the British. These laws continued to exist even after India gained its Independence due to which they were abused and treated with cruelty. Sexual abuse is very common among the community and most often the authorities not only refuse to take action but also end up abusing them468.
Another problem faced by them is the discrimination in the fields of education, employment and health related services. Many a times they are even denied medical services which have resulted in early deaths among the community. In 2014 the Supreme Court declared that transgender children have to be considered as socially backward class and admit them to the Educational institutions as they have the Right to Education469.
Mainstreaming the community in the society is not an easy process. From fighting discriminatory laws to making people accept them, they go through wide range of challenges. In, recent years many organizations are coming forward to work for the welfare of the community.
TRANSGENDER AND LAW
The Constitution of India provides its citizens with Fundamental Rights which is enshrined under Part III of the Constitution. Article 14 of the Constitution reads that the State must not deny its citizens their equality before law and equal protection of law. The provision has two connotations one being negative and other positive. The former states that one must not be discriminated on the basis of sex, race and so on. While the latter states that as everyone is not born equal it will not be fair if unequal people are treated equally and therefore the State must treat them in so as to foster their growth470.
Article 15 (1) of the Constitution reads, that the State cannot discriminate anyone on the basis of race caste, religion, place of birth or sex471. Therefore any discrimination by the state is an infringement of the fundamental right of the citizen. Apart from the sociological aspect, the transgender community has faced much discrimination due to some existing laws such as Section 377 of the IPC which now stands amended.
Article 19(1)(a) of the Constitution provides for the right to freedom of speech and expression to all its citizens. It has been understood that in a democracy the most important thing is the right to express their views in any way they want. It is also in the best interest of the society that individuals are given the liberty to express themselves. Though Article 19(2) of the Constitution provides for reasonable restrictions to this, the Supreme Court of India has always tried to uphold the freedom of speech and expression472. The transgender community has the right to express themselves as so held by the Court.
Article 21 of the Constitution reads that no individual shall be deprived of his life or personal liberty except according to a procedure established by law. The provision has two aspects one being right to life and other right to personal liberty. The provision does not refer to mere living but living a quality life with human dignity and includes right to health, right to food and so on473.
Section 377 of Indian Penal Code is a provision that violated the rights of the community, which was amended in 2018474. The provision before the amendment stated that consensual carnal intercourse against order of nature is punishable by imprisonment. The Amendment has removed the clause regarding consensual sex from this provision as it was discriminatory and a direct violation of fundamental rights of the community.
Due to the fact that the transgender community supposedly do not belong to the mainstream society or do not abide by the norms of the society, their fundamental rights comprising Article 14, 15 19 and 21 have been violated. Due to violations of the fundamental rights of the community, the Supreme Court held that, they have the right to be perceived as the third gender and they must be provided with their rights.
The Court has mainly relied on the Yogyakartha Principles which deals with enjoyment of human rights. Even though these laws have been removed or amended, they have had long lasting effect on the society and, perceptions of people about the community have also been negatively affected. Therefore mere repeal or amendment of the existing laws is not enough, but a legislation which will empower the community is necessary.
GENDER SPECIFIC LAWS
The Indian Penal Code has various sections dealing with various kinds of sexual offences but they are all gender specific and framed for women alone.
Section 375 defines Rape as a crime which can be committed against women and only by a man. Therefore a transgender cannot file a case under Section 375 of IPC, as rape can never be committed against a transgender and a transgender does not have any recourse to sexual abuse except sexual harassment under Section 354A of IPC475. The Supreme Court has refused to amend the Section 375 in making it gender neutral and has said that it is up to the Parliament to make any modification. Section 354A of IPC defines sexual harassment as a crime that can be committed only by men but the receptor may be of any sex and therefore even transgender can file a case under this provision.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2018
The Act defines “transgender person” as a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kothis, hijra, aravani and joggapas.
Chapter II of the Act states the prohibition of discrimination to the Transgender persons in spheres like education, employment, healthcare services. Also the section provides for The Right to Movement, and access to the all the public facilities, right to hold property, access to government establishments.
Chapter III of the Act deals with recognition of identity of transgender persons. It reads that a transgender person shall have the right to self-perceived identity and to be recognized so. One shall make an application to the District Magistrate for issuing a certificate of identity as a transgender person as in the prescribed form with requisite documents. It has also provided for issuing of certificate for children to be addressed as transgender which can be applied by parents or guardian. It also states that the application shall be referred by the District Magistrate to the District Screening Committee which shall be constituted by the government. It also states that in case of change in gender, a Transgender person may make an application to the Magistrate for the revised certificate and the person may change his first name without affecting his rights and entitlements.
Chapter IV of the Act provides for the Obligation of Central Government to take effective measures to secure the rights and interests, to rescue, protect and provide rehabilitation, to ensure effective participation of the community in the society to formulate welfare schemes which are transgender Sensitive, non-discriminatory and non-stigmatizing.
Chapter V of the Act deals with obligation of establishments. This Chapter prohibits any discrimination of the transgender community in matters relating to employment. It provides the obligations to comply with the Act and establishment of grievance Redressal mechanisms wherein a complaint officer shall deal with the complaints of violations of the provisions of Act.
Chapter VI of the Act provides for the education, social security and health of the Transgender persons. It states it is the duty of the educational institutions to provide them equal opportunities in education, sports, recreation without discrimination. The Government shall make schemes for supporting their livelihood, to setup separate HIV centres, to facilitate medical assistance in the SRS, hormonal therapy and also for coverage of expenses through health insurance for their medical facilities.
Chapter VII provides for National Council for transgender persons which shall be constituted by the Central government. The Council shall consist of several members of the government including the Union Minister, representatives of National Commission for Women, Human Rights, 5 members of the transgender community and experts working for the welfare of the community. The functions of the Council are to advice the Central government, evaluate policies and redress grievances of the community.
Chapter VIII provides for the penalties, if any person entices a transgender person into begging, or any form of bonded labour, obstructs the access to public place, forces to leave their residence, threaten or endanger the life, health, safety or abuses them physically or mentally shall be punishable with imprisonment up to two year and fine.
CRITICAL ANALYSIS OF THE BILL
Transgender has been recognized as legal entity in Transgender Persons Bill, 2018 whose preamble states-“A bill to provide for protection of transgender persons and their welfare and for matters concerned therewith and incidental thereto”. The Bill has been introduced and passed in the Rajya Sabha. Though the bill seeks to address the socio-economic problem faced by them, it suffers from shortcomings.
The Act provides for right to self-perceived identity according to the judgment of the Supreme Court. In the same chapter it also states that the application for gender certificate made to the District Magistrate shall be referred to the District Screening Committee and the certificate shall be issued on the basis of the recommendations of the Committee. Therefore it contradicts the idea of the self-perceived identity which was specified by the Apex Court and violates Article 14 of Constitution. This may cause the community to fall prey to exploitative officials.
The Act provides for non-discrimination in employment and obligation of establishments in ensuring a friendly environment, but this is not enough to help the community. A mere right furnished without a corresponding duty will not improve the conditions of the community as the society has still not accepted them.
Bill seeks to provide the Transgender persons equal opportunity in all spheres like the employment, education, healthcare services and provides for the right to property, access to public facilities. Though these rights are given to them there is no corresponding duty imposed. It states it is the obligation of the Governments to provide rehabilitation centers and admission of Transgender Children for inclusive education, but the bill does not specify anything regarding the penalty to employers who refuse to comply with these provisions.
The Act provides for a National Council for transgender which has the duty to protect the interests of transgender. Transgender have been identified as a vulnerable group who need protection but other such groups like women, ST, and SC, has been provided with better mechanism in the form of National Commissions. These Commissions have been bestowed with powers of Civil Court and to take suo moto cases.
However, the Council does not have any such powers and is only an advisory body of the government without any autonomy unlike Commissions. The representation of the community in the Council is only a small percentage in comparison which is not in their interest. There should also be State Commission at the state level and therefore ensuring justice at all levels.
The researchers have examined the policies of other countries on Transgender Rights, particularly Bangladesh and Pakistan. These countries were chosen because at a point of time they were part of India and continued to share similar culture and social values which is better than any country that is different from India.
The Bangladesh government recognized ‘hijras’ as third gender in 2013 in the Gazette in an unprecedented move. But as of now they have not still been enrolled by the Election Commission or National Identity (NID). The government has invited the community to apply for government jobs but there has been no move regarding other issues plaguing the community. Therefore it has been criticized as recognition without rights and as ineffective.
The Transgender Persons (Protection of Rights) Act, 2018 of Pakistan, provides for the Protection and Welfare of the Transgender persons. The act helps them to avail National identity cards, driving licenses, passports without much effort. One of the important aspects is that it does not need any committee to identify their Sex. The bill speaks about the jobs, livelihood, Right to inherit property, violence and discrimination.
Thomas Jefferson, the former President of the United States of America quoted that “there is nothing more unequal than the equal treatment of unequal people”. Due to the fact that the transgender persons seemingly do not belong to the mainstream, the society and state ignored and left them without any protection. However, expected them to survive the discrimination and abuse on their own, failing to acknowledge the fact they also possessed Human Rights. Though the legislators’ intention to bring in a change is evident, the bill fails in manifesting into a comprehensive legislation which deals with all the issues plaguing the community. At the same time the private bill introduced and passed by Member of Parliament Tiruchi Siva in the Rajya Sabha seeks to get more rights and entitlements for the community. The private member bill is a comprehensive piece of legislation which addresses most of the problems faced by the community and also secures their rights and interests. Therefore the researchers are of the opinion that either private member may be passed or the government bill may be modified and passed henceforth.