Long Way To Walk

Purushottam Kumar
27 Sep 2020 1:25 PM GMT
Long Way To Walk
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It was September 16, 2018, when the Landmark judgment was pronounced over LGBT in the matter Navtej Singh Vs. UOI[1] wherein the apex court held that the offence under section 377 Indian Penal Code which criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Indian Constitution. Almost 2 years have passed, the legislature is yet to come out with the law which can be enforced for the protection and to safeguard LGBTQ. The Transgender Persons (Protection of Rights) Act, 2019 has been passed by Lok sabha on August 5,2019 and by Rajya Sabha on November 26,2019 whereas, The Transgender Persons (Protection of Rights) Rules,2020 draft has been prepared recently and it is yet to be introduced in the House.

While going through the Act, The Transgender Act, 2019, Chapter V talks about obligation of establishment and other persons. In this chapter it is mentioned that every establishment has one complaint officer to deal with the complaints relating to violating of the provision of this act, but a simple question sneaks into my mind, what will be the gender of that officer. Even the statute is silent on constitution of any committee, to adjudicate the matter properly. What if Transgender has been sexually harassed at workplace? Why the Act has not mentioned about any provision of Counselling Centres where LGBTQ can approach and speak their mind or may take assistance to calm down themselves.

There are other Statutes also where amendment is needed when it comes to LGBT.

The Indian Penal Code, 1860, Section 8[2] of IPC reads "the pronoun he and it's derivative are used of any person whether male or female". So, in the definition of Gender apart from male or female, the word like , Third Gender or others, whichever may be suited to legislature must be inserted.

Sec. 10 IPC:- "Man", "Woman", The word "man" denotes a male human being of any age; the word "woman" denotes a female human being of any age. This section also needs to be amended so as to bring the Transgender within the purview of this Code.

Section 354 IPC: - Assault or criminal force to woman with intent to outrage her modesty. What if the molestation has been done to a Lesbian?

Sec 354-A: - Sexual Harassment and Punishment for sexual harassment:- A Man committing any of the following Acts, what if a Bi-sexual commits such Act? What will be the punishments imposed when any man commits such act with Lesbian or with a Bi-sexual.

Sec 354-C :- Voyeurism:- A man who watches or captures the image of a woman engaging in a private Act, so, privacy is of utmost concern for each one of us. If a Bi-sexual is engaging with a woman, what will be the penal provision in that case? If a man is capturing the image of a Lesbian or Bi-sexual in the same situation then what will be the repercussion.

Sec 354- D: - Stalking:- A man who follows a woman, so, there can be instances where a man follows a lesbian or a Bi-sexual follows a woman.

Sec 312 IPC: - Causing miscarriage: Whoever voluntarily causes a woman with child to miscarry, if the child is of Lesbian and then the miscarriage takes place or say if anyone from the LGBT community commits such act, will it be considered as an offence.

Sec 313 IPC:- Causing miscarriages without woman's consent. Sec 314 IPC Death caused by act done with intent to cause miscarriage. Sec 315 Act done with intent to prevent child being born alive or to cause it to die after birth. What if the offence is committed by a Transgender or the child of a Transgender is prevented from being born alive or dies after birth, will it be covered under the aforesaid provisions; will the Judicial system provide protection to the Transgender.

Even the Section 366 in The Indian Penal Code states that kidnapping, abducting or inducing woman to compel her marriage, etc.—whoever kidnaps or abducts any woman, will amount to an offence. This situation can be in case of Bi-sexual as well.

If we are really keen to bring the LGBTQ on the equal footage, then there is again a dire need to include them under the ambit of Sexual Harassment of Women at Workplace.

Maternity benefit Act, 1961[3]: Sec 2(O) of the Act defines Women; even this act must also include LGBTQ in the definition.

The Factories Act, 1948: Section 19 mentions about Latrines and urinals. Section 19(1) (b) of the Act says that in every factory separate enclosed accommodation shall be provided for male and female workers; in this Case also arrangement must be done for LGBTQ.

Sec 27 Factories Act: Prohibition of employment of women and children near cotton-openers.—No woman or child shall be employed in any part of a factory, what about Lesbian and for Bi-sexual.

Recently Orissa High Court has pronounced Judgement in the matter Chinmayee Jena @ Sonu Krishna Jena vs State of Odissa & Others[4] where Petitioner originally belonging to female gender, has exercised his rights of self-gender determination and preferred to be addressed as he/his. Therefore, we have recognized the petitioner's right to be treated as a male and referred him as he/him/his. However the Honourable court has observed that society has no excuse to raise a finger at them and allowed them to stay together.

Till date marriage has not been allowed in India in LGBT but with passage of time, personal laws will been amended along with succession law.

The LGBT community has already seen a lot of hardship since time immemorial and still their status has not been improved. Days and nights they are fighting for their identity and for their survival. Recently the Government has also introduced the New Education Policy in which the concept of "Gender-inclusion Fund" has been inserted to provide equitable quality education for all girls as well as for transgender students. But the bigger question is proper implementation and utilisation of fund. Why can't we dream of a society where we can stay together happily with transgender community where we all can behave normal without raising our eyebrows.

Views are personal only.
(Author is a Senior Legal manager, ICICI Bank Ltd. Patna)

[1] Navtej Singh Vs. UOI, WRIT PETITION (CRIMINAL) NO. 76 OF 2016

[2] M.R. Mallick Criminal Manual , 2014 Professional Book Publishers

[3] M.R. Mallick Labour & Industrial Law manual 2009, Professional Book Publishers

[4] Chinamayee Jena @ Sonu Krishna Jena vs. State Of Orissa Writ Petition ( Criminal) No. 57 of 2020

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