On the 21st August 2020, another milestone was achieved by the Central Government with the constitution and establishment of the National Council for Transgender Persons pursuant to the only legislation governing the law of the land for the transgender persons passed last year- Transgender Persons (Protection of Rights) Act 2019. However, with the constitution of this Council, protests have ensued across the country amongst the transgender community who were anyway grappling with the Act that they relentlessly protested whilst the Bill (preceding the Act) was being supposedly 'discussed' in the Parliament and even after it was brought into effect. Alongside such protests, a petition before the Hon'ble Supreme Court of the country was filed challenging the legislation. These uprisings made this otherwise benign Act tremendously controversial with most of the community members unaware of what was coming their way- especially owing to the certification procedure mentioned in the Act under sections 4 to 7.
The author had earlier cast doubt on the undue haste by the Central Government in the formulation of the Draft Rules and calling for opinions and comments on the Draft Rules governing the Act during and amidst the Covid19 pandemic; that too whilst the lockdown was in strict implementation in April. While the date for the submission of comments and opinions on the Rules was extended till mid-May, the final Rules are awaited.
Amidst, these incongruities prevailing on the unaddressed issues of the transgender persons, to the author, the institution of the Council yet again portrays undue haste, whilst the ongoing health crisis, and by not affording full consideration to the apprehensions of the transgender community. The author aims to highlight a few problems, also being voiced from corners of the country, underlying the formation of the Council in its present form as also the provision empowering its establishment as such.
Apprehensions plaguing the establishment:
1. The committee has representations each from the North, South, East, West and North-Eastern zones of the country which makes for five representatives only. Even though, this is mandated by section 16 of the Act of 2019, the same is irrational and inadequate, precisely because of the following reasons and harsh realities:
• Governance of a vulnerable community- the transgender community is a very difficult task at hand. Frankly, the lack of sensitisation about the transgender community at almost all levels of the government structure and the immense sensitivities laden in the trans lives and their lived experiences, make it difficult to grasp of their plight. It cannot usually be comprehended by anyone who hasn't been witness to it or is empathetic of the same. Accordingly, having only five transgender persons with four non-governmental organisation (NGO) representations make for an inadequate inequitable representation to govern a population of more than 4.88 lakh as per the 2011 census (expected to see a rise in the 2021 census owing to the landmark 2014 NLSA judgement that has ingrained confidence amongst a lot of them who could finally come out declaring themselves as identifying as transgender persons).
• Since at least 1871, when the Criminal Tribes Act was enforced in India (even though in some parts), the transgender community has been marginalised and ostracised gravely. So the overriding question here is whether, in a Council of thirty members, five individuals and four NGO representations (total of nine persons) are enough to undo the historical injustices and gauge the diverse experiences of trans lives across the country. Isn't it too less?
• While the Council has star-stellar Ministerial, governmental and commission representations, it only has nine individuals to voice for the 4.88 lakh who for the first time would have an opportunity to have their voices heard at the governmental level. Thus, the issue of less representation under the said provision was required to be re-thought and before resolution of the same, a move of this kind does merely checking another point on the bucket list!
2. The representations of the transgender community are undoubtedly remarkable by having on board stalwarts of the face of the Indian transgender movement like Laxmi Naryan Tripathi, Gopi Shankar Madurai, Meera Parida, Zainab Javid Patel and Kak Chingtabam Shyamcand Sharma. But, that leaves aside a large number of states like Bihar, Karnataka, Kerala, West Bengal, Jharkhand and many others who are striving towards the attainment of the welfare of the transgender community. Thus, for them, it is difficult to accept such an exclusionist approach for the inclusion of their causes and consternations. This, some of them feel might denigrate their united approach of all these years- all the more because they feel the indigenous problems of the unrepresented states might not get adequate representation. As a result of this, post the establishment of the National Council, chaos and protests ensued in several parts of the country.
3. Activists like Ranjita Sinha in West Bengal have felt the jolt and have taken into protests through her social media profile urging everyone to join in raising voice against such inconsiderate step. However, an interaction with her reveals her displeasure with such an erratic decision of the government who too feels that the parameters in selecting the members must also be made public.
4. Additionally, the transgender community majorly feels that there is lack of grassroots-level representation making the entire exercise a futile effort because according to a few community-based organisations working on the ground, the issues of victimisation of police brutality to economic deprivation and hostilities of unimagined levels are faced by those in the lower strata of the society and at the bottom of the hierarchy of transgender communities- who have not been represented. Sintu Bagui, a transgender Lok Adalat member in West Bengal observed that the issues plaguing the backward and poor trans individuals, especially those in the hijra profession or who beg on the streets or take part in launda dance are required to be flagged. Sintu feels that the pulse of their problems is not unified because the anxieties (exacerbated now by the Covid19 situation) in lack of jobs, medical facilities, hygiene, food are much more for the economically most deprived which she feels might miss the agenda unless one of such individual gets represented. Especially for the ones who are not educated for the circumstances that were created by the same society that has shunned them away from all benefits, a representation amongst them is quintessential to make the Council well representative of the varied trans problems. Similarly, some problems are indigenous to certain states which require representation. While the rotational scheme is in vogue, for many transgender persons, their expectation of getting a chance to voice their opinion- altogether comprising of a robust and diverse Council, is lost.
5. Finally, there is one concern that has remained unaddressed in the scheme of the Act including the Draft Rules, is the coordination between the National Council with the Transgender Development Boards set-up post the NLSA judgement in various states or are on the verge of being established in others. This too has not been mentioned under section 17 calling for coordination between the National Council, except for the departments of the government(s). As a result, there is surely doubt on the possible discrepancies that might arise and resolution mechanism for the same is unstated.
Indeed, the National Council is a remarkable feat and the importance cannot possibly be undermined, however, much caution and care are expected from the government whilst dealing with or trying to remedy the abominable situation of the transgender community of this diverse country. It is thus, the hope of the author that good times are awaited and the assurance provided by Dr. Veerendra Mishra, Director, National Institute of Social Defence, in a webinar organised jointly by the National Institute of Disaster Management and International Justice Mission concerning the transgender persons and the pandemic situation, is eagerly hoped to be realised by taking progressive steps and the foremost being the efforts from the government in eradicating the misconceptions hovering around the Transgender Persons (Protection of Rights) Act 2019.
Hoping for the best for the community that has remained unnoticed for long years in the otherwise democratic country augmenting for equality, liberty, fraternity, freedom and freedom of speech and expression!
Views are personal only.
(Author is a PhD Scholar and Research Assistant, The West Bengal National University of Juridical Sciences, Kolkata)