Trans Act 2019 violates NALSA Judgment

 Introduction

The Central Government has sought feedback on the rules it has framed to implement the Transgender Persons (Protection of Rights Act), 2019. Aside from the fact of lock down due to corona virus which makes travelling nearly impossible, thus trans people are unable to meet for comprehensive feedback. A group of trans activists has said that the rules being framed by Late the provisions of the same act. This group points out that after the government published the rules on April 18, it sought responses by April 30 when lock down 2 was in force. The deadline for the responses was then extended to May 18. Since lock down 3 which was continued to restrict movement, was to end on May 17, the activists found this unacceptable. They have now written to the Ministry of Social Justice and empowerment listing their objections.

The trance act 2019 was supposed to be the culmination of the community’s long drawn efforts to get legal sanction for its rights via Parliament. But a trans activist says that the act has actually removed many of the gains the community had achieved in the NALSA (National Legal Service Authority Judgment) in 2014.

Trans Act 2019 violates NALSA Judgment

When it is delivered in its judgment in the NALSA v. Union of India case in 2014, the Supreme Court bench had called for legislation to safeguard the rights of transgender persons. The bench said: “non-recognition of the identities of Hijras/Transgender in the various legislation denies them from the protection of law and they have face widespread discrimination.”

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The NALSA judgment had further said that any insistence on SRS (sex reconstruction surgery) Was immoral and illegal. It stressed that self-determination of gender is integral to one’s personality and dignity. However, the 2019 act specifies that to identify as male or as female, one must apply Proof of surgery to the magistrate. Activities this gives immense power to the DM, leading to the possibility of arbitrariness and misuse.

The 2019 Act also institutionalize his legal discrimination by making punishment for sexual abuse against transgender is imprisonment of “not less than six month which may extend to 2 years and with fine”. This is much less than punishment for the rape against woman under Indian Penal Code (IPC), which is imprisonment of “not less than seven years but which may be for life or for a term which may extend to 10 years and also shall be liable for fine.”

Furthermore, the 2019 act which was purportedly enacted to eliminate discrimination against the transgender person by other person or establishment does not even prescribe a punishment of discrimination. It states that if the immediate family is unable to take care of a transgender person, the person could be replaced in a rehabilitation center after an order from a competent court. This violates article 21 of the Constitution, which guarantees the right to life and dignity. The 2019 act fails to recognize the transgender persons are capable of making their own decisions. The act also violates the NALSA judgment by failing to provide reservations in admission to educational institutions and public appointments by treating the transgender community as socially and educationally backward classes of citizens.

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Rules are beyond the scope of the act

The 2019 act fails to recognize persons with intersex variations, gender-queers, and persons with socio-cultural identities like kinner, hijra, nupi mambi/nupi manba, thirunambi/tirnangai, jogta, mangalamukhi, aravani and shivaskti among others its rules, say activists, are beyond the scope of the act. The rules empower the DM to reject an application for a trans certificate and also criminalize what the act calls ‘fake claims’. The rules say that even for self-identification as a transgender person, you need psychologist’s certificate. This violates the 2019 act itself. The NALSA judgment had stressed that self-identification is enough and rights should flow from it. This has been held as part of the right to equality, but the rules of the 2019 act, particularly from sec 2 and 9 only focus on identity and an exclusionary process around it.

The general penal law of this country already has such provisions. A large number of Trans people are illiterate and unlettered. There is a likelihood of confusion and errors. To say such mistakes could lead to penal action is deeply problematic and against the spirit of NALSA.

Conclusion

The activist groups recognize that they do not represent the entire community at this time many voices among transgender persons have not been heard because of the restrictions on movement during the various lock down. They have thus also sought to halt the process of feedback while the case remains pending in the Supreme Court till such time as the entire community is able to meet in the groups and discuss the act.

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Author: Umang Bhatla,
Delhi Metropolitan Education, affiliated to GGSIPU, 3rd Yr.

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