25 Jan 2022 2:13 PM GMT
Recently it appeared in the newspapers that a petition was moved by a highly qualified transwoman to the legal aid cell of Kerala High court seeking for euthanasia as she had no hope to survive with dignity. Despite being qualified for the job, merely based on her gender she remains invisible to all. As rightly pointed out by the feminist scholar Nivedita Menon, the hegemonic...
Recently it appeared in the newspapers that a petition was moved by a highly qualified transwoman to the legal aid cell of Kerala High court seeking for euthanasia as she had no hope to survive with dignity. Despite being qualified for the job, merely based on her gender she remains invisible to all. As rightly pointed out by the feminist scholar Nivedita Menon, the hegemonic understanding of the human body is explicitly and unambiguously male or female, pushing large number of bodies that does not fit this binary to be understood as diseased or disordered in some or the other way. At this juncture we need to introspect why we are we still reluctant to accept their dignified existence? What wrong of them has forced them to think of even euthanasia or mercy killing?
Historically speaking transgender had once had much significance in Hindu mythology and in the early Indian society till the colonial rule. The catastrophe began during the British rule when legislation, called the Criminal Tribes Act, 1871 was enacted to supervise the deeds of Hijras or transgender community. The Act deemed the entire community of Hijras persons as innately 'criminal' and 'addicted to the systematic commission of non-bailable offences'. The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. Under the Act, the local government had to register the names and residence of all eunuchs residing in that area as well as of their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offences under Section 377 of the IPC, or of abetting the commission of any of the said offences. This colonial fallacy as a piece of legislation proclaimed transgender and their acts as unnatural. Though the Act was repealed in the year 1949 post independence, unfortunately the rot and scar still remains.
In several occasions the Indian judiciary tried to heal the wound caused by this colonial aberration by judgments like National Legal ServicesAuthority (NALSA) v. Union Of India and K.S. Puttaswamy v Union of India . To highlight, Justice Radhakrishnan speaking through the NALSA case says "Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex." The court held that Article 14 does not restrict the word 'person' and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression 'person' and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. The discrimination on the ground of 'sex' under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. Court held that the expression 'sex' used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female. Article 21, as already indicated, protects one's right of self-determination of the gender to which a person belongs. In other words, gender identity is integral to the dignity of an individual and is at the core of "personal autonomy" and "self-determination". The apex court declared that Hijras/Eunuchs, therefore, have to be considered as Third Gender over and above binary genders under our Constitution and the laws.
The light thrown by NALSA case paved way to various judicial pronouncements taking the suffering of transgender seriously. The latest judgment of the Supreme Court in Lt Col Nitisha v.Union of India  recognized the fashion in which discrimination operates by dint of "structures of oppression and domination" which prevent certain groups from enjoying the full panoply of entitlements. Apart from the Apex court, the various High courts in India have contributed significantly towards queer justice. The Allahabad High court rightly pointed out that "Impoverishment and marginalization have been endemic to the transgender population. Preventing discrimination in all walks of life is one facet of the right of transgender to live in dignity, with the confidence that they can lead their lives on their own terms in realization of gender identity. But the law needs to travel beyond non discrimination, by recognizing an affirmative obligation of the State to provide access to social security.
Interestingly the Indian judiciary is doing its job to uphold the constitutional morality when and where it is required but it was the legislature who woke up late. Till 2014, until The Rights of Transgender Persons Bill, 2014 a private member's Bill was introduced in the Rajya Sabha by Tiruchi Siva, MP from Tamil Nadu, legislature never bothered to think in this direction. In an historic moment, Rajya Sabha passed a private member's bill for the first time. Unfortunately, the same remained pending in the Lok Sabha without any discussion. Later on July, 2019 Transgender Persons (Protection of Rights)Bill, 2019 was introduced in the Lok Sabha diluting few significant provisions such as reservation for transgender in educational institution and employment and the same got passed on August 2019. But the present Act was invited with much criticism from all corners especially the transgender community and activists owing to the lack of deliberation and discussion it was required to be conducted with all stakeholders during the drafting of the same. It is now time to introspect whether this piece of legislation and the Transgender Persons (Protection of Rights) Rules, 2020 notified on 29th September 2020 can be a savior for this vulnerable community.
The entire issue that was revolving on this subject was recognition of gender identity. Though the Act recognizes the gender identity, the reading of Sec 4(1) makes it problematic. It says that a transgender person shall have a right to be recognized as such, in accordance with the provisions of this Act and clause (2) says a person recognized as transgender under sub-section (1) shall have a right to self-perceived gender identity. Now it's time to see what is 'in accordance with the provisions of this Act'. Contrary to the dictum pronounced in the NALSA case, which held that determination of gender to which a person belongs is to be decided by the person concerned, the present Act leaves this determination at the mercy of the District Magistrate(DM), a bureaucrat through a two tier process .Firstly an application has to be moved by the transgender to the DM for issuing a certificate of identity as a transgender person, in such form and manner, accompanied with documents (Sec 5)and the second step as per Sec 6 of the Act, issuance of certificate by DM after following such procedure and in such form and manner prescribed in the Transgender Persons (Protection of Rights) Rules, 2020.
The Act then heavily obliges the appropriate government under Sec 8 of the Act to ensure that welfare steps are taken to secure full and effective participation of transgender persons and their inclusion in society through welfare schemes and programmes which are transgender sensitive, non-stigmatising and non-discriminatory. The irony is that instead of merely stating few statutory obligations upon the State, the law missed an opportunity to confer reservation in educational institutions and for employment as affirmative action. Definitely reservation would have marked a tool for empowering transgender who frequently faced discrimination in every sphere of life. Even the constitution of National Council of Transgender Council under Section 16 of the Act, to address the concerns of transgender is heavily criticized for it's under representation of transgender, the beneficiary. The National Portal for transgender Persons under Department of Social Justice and Empowerment of Central government where schemes like Garima Greh are highlighted to provide shelter for transgender mandates the beneficiary to login online for generating user ID to avail benefits. In a country with deep digital divide and more importantly the transgender community largely being illiterate, ignorant and driven by poverty, it is doubtful whether they will go through the tiring bureaucratic process to avail these claims.
One of the serious setbacks in the present Act is the disproportionate penalty fixed for various offences like sexual assault. Sec 18 of the Act punishes a person who compels or entices a transgender person to indulge in the act of forced or bonded labour, who denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access to or a right to use or who forces or causes a transgender person to leave household, village or other place of residence; and harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, all with one single punishment i.e. imprisonment for a term which shall not be less than six months but which may extend to two years and with fine. This infact mocks the very bedrock of penology that distinguishes penalty with gravity of offences. Unfortunately the rape laws are not gender neutral and the transgender is not considered victim of rape in the eyes of Indian penal law. Hence the transgender will have to take the shelter of the present Act for justice. So, when a cisgender woman gets raped in India, the perpetrator can even be punished with death penalty if the victim dies or results in persistent vegetative state (Sec 376A IPC) or is a woman under 12 years of age (Sec 376AB IPC) or is gang raped (Sec 376DB IPC). But on the other hand if a transgender gets raped the maximum punishment that can be inflicted is 2 years. More worse is, since the Act is silent on whether it is bailable or non-bailable offence, one will have to look upon the first Schedule of Code Criminal Procedure, 1973 part II where classification of offences against other laws is mentioned. The offence punishable with imprisonment for less than 3 years is 'bailable' and non- cognizable offence. This penal provision thereby will enable the perpetrator to easily come out of bail and push the life of victim to more mishap.
The Act is silent on not just the affirmative action but also with regard to issues pertaining to family such as marriage, adoption, succession etc. This legislative vacuum in these grey areas should soon be addressed to keep up our constitutional morality. In a country, which is deeply rooted upon patriarchy, religiousness and cultural ethos the present Transgender Persons (Protection of Rights) Act, 2019 is definitely a litmus test for us.
The author is an Advocate at the High Court of Kerala and former Asst Public Prosecutor, Govt of NCT of Delhi. Views are personal.
1] Nivedita Menon, 'Seeing Like A Feminist' (Zubaan in collaboration with Penguin Books, New Delhi, 2012)
National Legal Services Authority (NALSA) v. Union Of India AIR 2014 SC 1863
 AIR 2014 SC 1863
 (2017) 10 SCC 641
 AIR 2021 SC 1797
 Hina Haneefa @Muhammed Ashif Ali N V. State Of Kerala And Others (W.P.(C).No.23404/2020); Kabeer C Alias Aneera Kabeer V. State Of Kerala (WP(C).No.9890 Of 2020); Arunkumar v.Inspector General Of Registration, 2019 (3) KLT SN 4 (Case No. 5); S. Sushma And Ors. v. Commissioner Of Police, Greater Chennai Police And Ors W.P. No. 7284 Of 2021; Anjali Guru Sanjana Jaan v. State OfMaharashtra & Ors Writ Petition (Stamp) No. 104 Of 2021; Ms. X v. State Of Uttarakhand Writ Petition (Criminal) No. 28 Of 2019; Queerala & Another v. State Of Kerala & Others W.P. 20056/2018; Shivani 'Shivy' Bhat v. State Of NCT Of Delhi 223 (2015) DLT 391.
 Ashish Kumar Misra v.Union of India MANU/UP/0332/2015.
 National Portal for Transgender Persons under Department of Social Justice and Empowerment, Government of India( more details available at https://transgender.dosje.gov.in/Applicant/HomeN/Index )