By Mrs. Bhargavi Baruah – ISBR Law College, Bangalore
Transgender community was an important part of the Indian society from time immemorial. The roots of Transgender in India dates back to thirteen and fourteen centuries. They have got a strong historical presence in our country in the Hindu mythology and other religious texts. In the epic Ramayana also the reference to the transgender can be found. It is said when Lord Rama was leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the ‘men and women’ to return to the city. Among his followers, the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people on auspicious occasions like childbirth and marriage. Reference of this community can also be found in Vedic and Puranic literature. During the ancient and Mughals period they enjoyed influential position and been considered as one of the important figure in the society. But it was after the Britisher’s entered India their position changed drastically. They passed the Criminal Tribes Act 1871, classifying entire transgender community as criminals. After Independence, the law was repealed in 1949, but mistrust of the transgender community continued. Even till today they remain socially excluded disowned by their families in their childhood living on fringes of society in ghettoized communities and harassed by public.
In India we have the highest law of the land the Indian Constitution under which fundamental rights are assured to every citizen. India is also signatory of the UDHR and various other International Law which as well provides immense right to every human being .But when we look into the plight of the transgender community it is clear that those rights are not available towards them. Art 14 ensures equality to all person including transgender person. But it is most often seen that transgender people are not at par with other sex. Art 19 also promises various freedom but when it comes to this community they hardly get any freedom to choose their occupation or travel freely throughout the country. They are often mocked and made fun of. Moreover Art 21 not only speaks about Right to life and personal liberty by it emphasizes on quality life which the government has often failed to provide for this community. It is mostly seen that this community is highly discriminated. They are not provided access to education and most of them are uneducated leaving them jobless. Quality of life of this community are of lowest order leaving them helpless. When any atrocities are committed on them even the law and order of the country has failed to protect them. Justice is mostly denied to them In this sad state of affair the Supreme Court came forward for their rescue, when the legislations have failed completely. Only after the interference of the Supreme court this community got a name and a status. Various judgments have led to their emancipation. The National Legal Services Authority v. Union of India is a landmark decision by the Supreme Court of India, which declared transgender people to be a ‘third gender‘, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender.4 This judgment is a major step towards gender equality in India.5Moreover, the court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.6Through this judgment several rights such as the right to vote, own property, marry and to “claim a formal identity” would was made available to the transgender community. Navtej Singh Johar and others Vs Union of India thr. Secretary Ministry of Law and Justice is another landmark decision that paved the rights of the Transgender community. This case decriminalized all consensual sex among adults in private, including homosexual sex reaffirmed the rights of the LGBT community. It held Sec 377 of the Indian Penal Code as arbitrary ,irrational and hence struck down. This judgment paved the way for Right to Life and Right to Privacy to the community. Only after this two major judgments the legislature took some effort and passed the Transgender Person Protection of Rights Bill 2016. This Bill also faced a lot of criticism as the definition of the term transgender itself was derogatory and instructions given by Supreme court in the Nalsa judgment was not followed. This bill basically was very poorly drafted. After 27 amendments again the Transgender Person Protection of Rights Bill 2018 is passed by Loksabha and is still pending before Rajya Sabha. This Bill had tried to rectify all the mistakes and lacunas of 2016 Bill even than the Bill needs a lot of improvement. The revised definition omits the reference to a ‘neither male nor female’ formulation, and covers any person whose gender does not match the gender assigned at birth, as well as trans men, trainwomen, those with intersex variations, the gender-queer, and those who designate themselves based on socio-cultural identities such as hijra, aravani, kinner and jogta. There are all together 8 chapters in the Bill but even then this bill is not farsighted , hardly able to fulfill the expectation of community. This matter needed serious attention and clear laws but legislature has failed to do so.
Major drawbacks of the Bill
The Second chapter speaks about “Prohibition of certain Acts”it says transgender should be given equal treatment with regard to public job ,education but it nowhere mentions how to achieve this goal .So this chapter has failed to answer the bigger question in what ways equality can be ascertained to them.
Chapter III speaks about “RECOGNITION OF IDENTITY OF TRANSGENDER PERSONS” to be acknowledged as a Trans man/woman, it proposes for a complex and tedious process. Also, a mandatory sex reassignment surgery has to be undergone for someone to identify as a man/ woman. This is an outright violation of the NALSA judgment directive .
Chapter V speaks about “Obligation of Establishment and other person” this chapter has curtailed the right to freedom of movement of the transgender making it compulsory to reside with parents in their home . The fight of Transgender Persons is not just against the state, but at times also against their own families who refuse to accept them and subject them to physical and sexual abuse.
The Bill is also discriminatory when it comes to offences and penalties (Chapter VIII). There are serious discrepancies in the penalties for sexual violence against transgender persons and women. Where IPC inflicts strong punishment for atrocities against women, it on the other hand only provides for a punishment of two years in case of transgender people, which is far less ( Eg. Section 376 IPC provides for 7 years of punishment for rape).
Adding to its flaws, the Bill criminalises the act of Begging. Many transgender communities function and sustain by begging, which has also become a customary ritual in the society. It is a way of life for them to dance or sing and earn money.
Conclusion– In spite of recent 27 amendments brought in 2018 Bill and an improved version of the 2016 Bill; the major oppositions made by the Trans activists still remain unaddressed. On one hand where the Courts are constantly trying to uphold the rights of marginalised section, on the contrary, the legislature is diluting all of these rights by bringing bills contrary to its very objective. The International Court of Justice (ICJ) in its recent statement has made an appeal to reject the problematic parts of the Bill by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under International Law.