The Indian Judiciary, notwithstanding its limitations, has been enforcing the law as best possible in the situations before it. The judiciary knows that the law applicable is often archaic and requires updating. Seemingly going into a duel blindfolded (no pun intended), the judges on numerous occasions interpret such laws using every ounce of dexterity that they can muster, in order to navigate the murky waters to provide some semblance of justice, albeit late.
Over the years, it is obvious that the legislature has not been abreast with the latest goings on in society and in the legal field. The legislature is extremely reactive rather than being proactive while dealing with either entirely new enactments or amendments to the existing statute books. In fact, several statutes have their roots in colonial India, and not in the 21st century.
It is common knowledge that judges cannot frame the law; they can only administer it. However, in case of severe need the judiciary has been known to be a beacon of light for the legislature. Despite the judiciary alerting the legislature to the pitfalls in various enactments, the legislature has been known to procrastinate in promulgating laws accordingly, for one political reason or another. A prime example is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Supreme Court of India laid down the Vishaka Guidelines in 1997 which were a set of procedural guidelines for use in India in cases of sexual harassment at the workplace. The guidelines were ultimately codified in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The fact that it took the legislature over 15 years to enact a legislation, after the Supreme Court had laid down the guidelines, requires an extremely detailed explanation. Something is amiss.
It required a girl to be brutally gang raped in our nation's capital for the legislature to enact the Criminal Law (Amendment) Act, 2013 also known as the Nirbhaya Act. This Act provided for necessary concomitant amendments to the law relating to sexual offences against women in the Indian Penal Code, the Evidence Act and the Code of Criminal Procedure.
Let us examine the latest folly of the legislature of not incorporating concomitant changes in the existing laws while bringing Act No. 40 of 2019 on the statute books.
Being marginalised for the inability to fit into the prevalent categories of gender, male or female, transgender persons have faced problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities, just to name a few. After years and years of marginalisation by society, the transgender community wanted relief which they were entitled to as citizens of free India. Article 14 of the Constitution guarantees to all persons equality before the law, and Articles 15 and 16, inter alia, prohibit in express terms, discrimination on the ground of sex. But given the fact that discrimination and atrocities against trans people are rampant even in the 21st century, constitutional amendments to Articles 15 and 16 are perhaps required to prohibit discrimination on the grounds of gender because sex and gender are no longer synonymous.
During the past decade several groups took up causes for the LGBTQs and approached the Courts for the welfare of trans people. The Apex Court by its landmark Judgment delivered on 15th April 2014 in the case of NALSA v. Union of India reported in (2014) 5 SCC 438 directed the Central and State Governments to take various steps for the welfare of the transgender community and to treat them as a 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 State Legislature. The Supreme Court ruled that trans people, on being recognised as a third gender, shall enjoy all fundamental rights, while also being entitled to specific benefits in education and employment. Justice K.S. Radhakrishnan ordered that 'Transgender persons' right to decide their 'self-identified gender' should be recognized by State and federal authorities.
In view of this judgment, the Ministry of Social Justice and Welfare introduced the Transgender Persons (Protection of Rights) Bill, 2016 in the Lok Sabha on 2nd August 2016. The Standing Committee gave its Report on 21st July 2017. However the 2016 Bill lapsed after being passed by the Lok Sabha. Thereafter, the Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on 19th July 2019 by the Minister for Social Justice and Empowerment. It was passed by both houses and received the assent of the President on 5th December 2019, and hence is known as Transgender Persons (Protection of Rights) Act, 2019 (Act No. 40 of 2019).
Currently several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws such as Indian Penal Code (IPC), Criminal Procedure Code and Hindu Succession Act, amongst others, which contain some gender specific provisions. Though the Transgender Act recognises a third gender i.e. 'transgender', it does not clarify how the abovementioned laws will apply to transgender persons. Penalties for similar offences may vary because of the application of different laws, based on prescribed gender identity. For example, under the IPC, sexual offences against women attract a higher penalty (up to life imprisonment or death). On the other hand, while ostensibly protecting the rights and dignity of a transgender person, the maximum punishment prescribed for any offence punishable under the Transgender Act, including sexual abuse of a transgender person, is two years. Is sexual abuse of a transgender person less offensive than a sexual offence against a woman?
The term gender as defined under the IPC only includes male and female. Can a person certified under the Act, as a transgender, be either a victim of a crime or a perpetrator of a crime under the IPC? This is a conundrum for the legislature to deal with. Sexual offences mentioned in the IPC specifically stipulate that they can only be perpetrated by a man against a woman. Given the wide definition of the offence of Rape and other sexual offences under the IPC after the enactment of the Criminal Law (Amendment) Act, 2013, a transgender person could arguably be a perpetrator of such offences or also the victim. But the IPC does not recognize the third gender yet.
The term 'victim' has been defined under the CrPC. There needs to be more clarity as to whether a transgender is a person who can be compensated as victim under the provisions of the CrPC.
Correctional Facilities established by the Government have no specific place for a transgender. The Bombay High Court had urged the Government of Maharashtra to look into the matter of having separate transgender prisons / jails.
A son or daughter is legally bound to maintain his or her parents, if they have no income. What happens if their only child is a transgender? Can such a child refuse to maintain the parents?
Our country's laws in respect to succession and inheritance need amending because they recognise only male or female genders. Since the Transgender Act recognises the third gender, what happens to their rights vis-à-vis the property of their ancestors under their specific personal laws? Laws of succession whether personal or secular have to evolve and be amended to incorporate the rights of a transgender as envisaged under the provisions of Transgender Act. Further steps need to be taken to secure the rights of trans persons, including their right to inherit property.
Another question which arises, is whether a transgender can be adopted or can adopt a child either under personal laws or otherwise?
What about the divorce laws of our country? Under the Hindu Marriage Act, a couple may seek a divorce if either of them converts to another religion. However, the Act is silent on the effect of a change in the sexual identity and / or preference of a person.
Unfortunately, at the time of enacting the Transgender Persons (Protection of Rights) Act, 2019, it appears that the legislature had failed to recognise the impact of the provisions of this Act on other existing legislations. Unless concomitant changes in the existing laws are the made, the equal rights for and dignity of transgender persons in society will be a mere MYTH.
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