Updated: Aug 7
This article has been authored by Amisha Sharma, a fourth-year student at Amity Law School, Noida.
The history of LGBT community dates back to the time when homosexual intercourse was first criminalised as an offence under Section 377 of the Indian Penal Code (IPC). The contemporary times saw a radical change when the Supreme Court in Navtej Singh Johar v. Union of India (2018) held Section 377 IPC as unconstitutional ‘in so far as it criminalises consensual sexual conduct between adults of the same sex’. In relation to the concept of homosexuality, there persist many hurdles in India and very recently, the Parliament passed the Transgender Persons (Protection of Rights) Act, 2019 (Act). The Act, ever since its notification, has been facing major protests and agitations from the LGBT community. The article seeks to analyse the reasons behind such criticisms and puts up a dialogue for the community’s needs and wants.
Analysis of the Act
It was one of the main contentions in National Legal Service Authority v. Union of India (2014) that there should be no discrimination against members of transgender community on the ground of gender, as it would violate Articles 14, 15, 16 and 21 of the Constitution of India. Further, the Court exclusively recognised the identity of transgenders and ‘directed the Central and the State Governments to take various steps for the welfare of the transgender community and to treat them as third gender for the purpose of safeguarding their rights under Part III of the Constitution of India and other laws made by the Parliament and the State Legislatures.’ Section 3 of the Act states the provisions for prohibition against discrimination. While the Section specifically points out the grounds of no-discrimination, it does not outline a civil or criminal remedy on violation of these provisions.
In Navtej Singh Johar (2018), the former Chief Justice of India Dipak Misra, while pronouncing the judgment on behalf of himself and Justice Khanwilkar, emphasized on individual’s right of self-determination and held that Section 377 IPC fails to recognize an individual’s ability to consent.
Section 4 of the Act recognizes the identity of a transgender person. While the provision lets a person decide upon his ‘self-perceived gender identity’, it prima facie seems that the provision seems to be inefficient in understanding the concept of gender and sexual identity as it does not differentiate between transgender, transsexuals, intersex persons and gender queer. While transgender is treated as an umbrella term, intersex persons are those who are born with characteristics which are not traditionally associated with male/female bodies. Thus, this Section violates the autonomy of life and liberty given under Article 21 of the Constitution of India.
Furthermore, the Act under Section 5 states the provision about a ‘certificate of identity’ to be issued by a District Magistrate. It is to further state that such a certificate will prove to be a recognition of identity of a transgender person and will only be issued when all the official documents are in accordance. However, the Act remains silent on any discrepancies that may occur from the Magistrate’s side while issuing/non-issuing of the certificate and also, remains silent on any procedure of appeal if the Magistrate denies to issue the certificate.
Section 7 of the Act forms the provision of ‘change in gender’ which shall be issued to effect by the Medical Superintendent or Chief Medical Officer on undergoing surgery which shall be verified by the District Magistrate. The Section lets a person change gender on the basis of a certificate only which is yet again, a blow to the concept of individual autonomy and liberty.
The case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1996) verified the fundamental right to live anywhere in India. The Act, through its Section 12, offers a ‘right of residence’ to the transgender person but states that such a person can either live with his family or where any family is unable to take care of a transgender, such person, by a competent court’s order shall be directed to a rehabilitation centre, which is to say, is a clear infringement upon the choice of living. The Section does not make a distinction between a minor and an adult person.
The grave mistake that the legislation has done is the vagueness in penalising the offences done against the transgender person. Section 18 of the Act states the ‘offences and penalties’ against bonded labour, sexual abuse and the imprisonment term. While the Section fails to define the ingredients of such offence, it also fails to impose a strict penalty on sexual abuse of a transgender person. In a case of woman, the imprisonment in case of rape is 10 years, whereas, according to the Act, it is 6 months to 2 years in case of transgender person. Herein, apart from failing the individual autonomy from all corners, the Act also fails the equality test by abating less punishment, thereby, endorsing gender-discrimination.
The Transgender Act is made in furtherance of the Navtej Singh Johar (2018) judgement, which also talks about manifest arbitrariness as a provision for striking down discriminating legislation. Manifest Arbitrariness is now a part of positive law and can be used to strike down statues as well. The judgement further quotes the Shayara Bano Case (2017) and states that manifest arbitrariness is something done by the legislature capriciously, irrationally and/or without adequate defining principle. The Act, hence, seems to be arbitrary on many grounds and also violates the right to privacy of transgender person (Justice K.S. Puttaswamy v. Union of India 2018).
Adopting a Futuristic Approach
The LGBTQ+ community has been through a lot of tussle while fighting for their rights and securing a place in the society. The aim of the beautifully authored judgement of Navtej Singh Johar (2018) brought a ray of hope with itself. The community will have a representation in the society. The legislation can prove to nullify the impact of the judgement by putting forth ambiguities and inefficiency in the procedure where in the process of identification should be a right of self and not a right of the realm.
When there exists a conflict between a judgement and a legislation, the judgement should be given the precedence as the ‘law stated by the Court cannot be ignored’ (Priya Gupta & ANR. Vs. Additional Secretary, Ministry of Health & Family Welfare & Ors. 2013).Not considering the above stated fact by the Court as a binding principle, the mindfulness is to be applied at the Court’s direction in both, Navtej Singh Johar (2018) and NALSA (2014) judgement. Not only the Court recognised the identity of the LGBTQ community, but also very efficiently defined and directed the Government to take policy measures towards certainty, clarity and stability of the community’s wants. The shortcomings are to be identified and reconsidered towards adopting a heuristic approach for a better gender expression to incorporate proficient laws for the LGBTQ+ community in the country.