The Ministry of Social Justice & Empowerment’s decided to re-introduce the Transgender Persons (Protection of Rights) Bill, 2016 in it’s original form.
5 December 2017
On 19th November 2017, Shri Thawar Chand Gehlot, Union Minister for the Ministry of Social Justice and Empowerment (“MOSJE”) reportedly stated on the subject of The Transgender Persons (Protection of Rights) Bill, 2016, (hereinafter “MOSJE Bill”) that:- “We will be forwarding our original Bill as it is. Our Ministry feels that the Bill made by us is very good and there is no need to change it.” The statement indicates the Ministry’s wholesale rejection of the recommendations of the Parliamentary Standing Committee on Social Justice and Empowerment (hereinafter “Standing Committee”), which had issued it’s report on 21st July 2017 after inviting public comments and examining the Bill for nearly a year.
The MOSJE Bill was introduced in the Lok Sabha in August 2016. Interestingly, the Rajya Sabha had already adopted a Bill on the same subject, namely the “The Rights of Transgender Persons Bill, 2014”(hereinafter “Rajya Sabha Bill”), which was introduced by DMK MP –Tiruchi Siva as a Private Member’s Bill and passed on 24 April 2015 under a historic vote. Sometime thereafter, the Rajya Sabha Bill was transmitted to the Lok Sabha for consideration. Instead of debating the Bill passed by the Upper House, which is the proper course of action under Parliamentary procedure, the Lok Sabha Speaker allowed the Government to introduce a new Bill for transgender persons. In another curious turn, the MOSJE Bill was introduced with a recommendation from the President of India under Article 117(1) of the Constitution, which if accepted, will restrict the scope of intervention on the Bill by the Rajya Sabha. The MOSJE Bill, prima facie, does not satisfy the requirements of a ‘money Bill’ under Article 110, which is referenced in the President’s recommendation under Article 117.
The MOSJE Bill has been widely criticized by the transgender community, lawyers and activists for failing to secure the rights guaranteed by the Supreme Court of India in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (hereinafter “NALSA”).The proposed definition of a transgender person as well as the procedure for seeking legal recognition for one’s gender identity – the two provisions that determine who will be protected under the law are completely flawed, making the Bill a non-starter. The MOSJE Bill fails to appreciate the diversity and disparateness within the transgender community which includes transmen, transwomen, persons who identify as third gender, hijras, kinnars, aravanis, jogappas and other socio-cultural gender identities. Weak provisions against discrimination and violence, including sexual violence, which has been treated like a ‘petty crime’ and given a punishment of 6 months to 2 yrs imprisonment have been heavily criticized, as have the non-recognition of traditional work and living arrangements like guru-chela parampara and gharanas and the criminalization of socio-cultural practices of mangti and toli-badhai in the guise of forced labour and begging. The MOSJE Bill is silent on reservations and even scuttles the setting up of Welfare Boards for transgender persons by State Governments, which the community has been working towards for some time.
The Standing Committee was apprised of these concerns through written and oral submissions made by a number of individual activists and organisations, including the Lawyers Collective. The Standing Committee took note of the shortcomings and made over 55 recommendations for amending the MOSJE Bill. These included restoring the right to self-determination of gender under NALSA, applying the Yogyartaka Principles to counter discrimination and recognizing transgender persons’ rights to enter into civil partnerships and/or marriage. The Standing Committee’s report was by and large welcomed and it was hoped that MOSJE would review and reform its Bill.
MOSJE’s rejection of the Standing Committee’s report has caused deep consternation and led to calls for the rejection of MOSJE’s Bill altogether. When the people for whom the Bill was ostensibly drafted have rejected it, there is no moral justification for its existence, let alone enactment by the Parliament.
It is important to remember that the transgender community in India has never demanded a law but demanded equal and undiluted rights under the Constitution and other existing laws. The NALSAjudgment did exactly that – affording rights and recognition to transgender persons within the constitutional framework – the highest law of the land. As a result, many transgender persons are approaching Courts for claiming their fundamental rights, especially in relation to equal opportunities in education and employment. However, since the introduction of the MOSJE Bill in the Lok Sabha, many such cases have been kept pending at the instance of the Respondent authorities, even though the Bill has no status in a Court of law or application to the case. If passed in its current form, the MOSJE Bill will spell a death-knell on the hard-won rights to equality and freedom for transgender persons, which the State was expected to advance and not truncate, post NALSA.
The transgender community may have a narrow window to negotiate amendments in the MOSJE Bill, depending on the attitude and posture of the present Government. Or they may explore the possibility of pressing the Parliament to pass the Rajya Sabha Bill, in accordance with Article 208 of the Constitution. If political options fail, the community can knock on the doors of the Supreme Court, the institution in which it reposed faith the very first time.
The Lawyers Collective stands with rights and justice for transgender persons.