Insight, Aug '19
Diksha Sanyal examines the constitutionality of a Bill which the Centre is keen to enact
is not the first time that the central government has introduced a Bill
to ostensibly ‘empower’ the trans communities. Bills have been
circulating periodically since 2014. However, none of them have seen the
light of day. Most of these earlier Bills contained many problematic
provisions which have been vehemently opposed by trans activists and
2019 Bill is another ‘milestone’ in this continuing trend. The
criticisms of the Bill have been well articulated by members of trans
communities and some are available here, here and here.
In a nutshell, these criticisms pertain to the lack of clarity
associated with the process of self-determination, exclusion of
non-biological kinship networks such as Hijra households from the
definition of ‘family’, creating a scheme of lesser punishments for
persons inflicting violence on trans persons and enacting a powerless
mechanism to address discrimination; and the invisibilization of
intersex persons and their specific concerns are just some of the
glaring problems with the Bill.
addition, the Bill’s welfare framework has also been critiqued as
inadequate. It uses the language of “rescue, protection and
rehabilitation” which many fear can be misused by the State to undermine
the autonomy of trans persons. Further, there is no provision in the
Bill regarding reservation in education and employment, a long standing
demand of the trans communities. The National Council for Transgender
Persons does not have corresponding state councils to carry out work at
the grassroots and does not have provisions for adequate representation
of trans persons themselves. The central government has excessive
control over the selection, composition and functioning of the council.
This may lead to only powerful voices within the trans communities being
heard and dissenting voices being further marginalized.
Constitutionality of the Bill
there is a general consensus on the Bill being one that fails to meet
the aspirations of the trans communities, here, I highlight two
particular provisions that are particularly moot for constitutional
Getting a certificate of identity – violation of privacy and the principle of self-determination
III of the Bill lays out a framework for recognizing the identity of
trans persons. Section 4(2) says that a person identifying as
‘transgender’ has the right to self-perceived gender identity. When read
with the definition of ‘transgender’ in Section 2(k) of Chapter I, we
see that it includes a trans man and a trans woman whether or not they
have undergone any gender affirmative treatment or procedure.
Chapter III, Section 7(1) lays out that if a person who has obtained an
identification of ‘transgender’ from the State thereafter chooses to
undergo “surgery to change gender either as a male or female”, they must
provide the District Magistrate with a certificate issued to that
effect by the Medical Superintendent or Chief Medical Officer of the
institution where the person has undergone the surgery. Once the
District Magistrate is satisfied with this proof, they can issue a
“certificate indicating change in gender”.
creates a two layered step for identification. First, a person has to
identify as ‘transgender’, thereafter, if they choose to undergo gender
affirmative surgery, they must provide a medical certificate to that
effect. Thus a trans person who has not undergone gender affirmative
surgery cannot identify as ‘male’ or ‘female’ but only as ‘transgender’.
This is in direct violation of the NALSA judgment, which had
categorically stated that a person can identify in any gender of their
choice even without gender affirmative surgery. This provision
invalidates that pronouncement by making an expensive surgery a
pre-requisite for identifying as ‘male’ or ‘female’.
this manner, the provision violates the right to privacy in two
fundamental ways. First, it hinders self-determination of one’s gender,
which is an integral part of one’s personal autonomy, dignity and
freedom under Article 21 of the Constitution. Everybody has a right to
self-determine their gender identity regardless of whether their chosen
gender aligns with their anatomy through a gender affirmative surgery or
not. This provision thus serves to reinforce the biological basis of
identity which had been expressly rejected in the NALSA verdict.
After the recognition of privacy as a Fundamental Right by the Supreme Court in 2017 in Justice K. S. Puttaswamy and Another Vs. Union of India and Others
(henceforth Puttaswamy), there is another way in which Section 7(1) is
unconstitutional. Self-determination of gender and any related surgery
that one undergoes is private medical information over which one can
have a reasonable expectation of privacy. In Puttaswamy, Justice D. Y.
Chandrachud makes a distinction between privacy and anonymity when it
comes to medical records of an individual.
notes: “An unauthorised parting of the medical records of an individual
which have been furnished to a hospital will amount to an invasion of
privacy. On the other hand, the State may assert a legitimate interest
in analysing data borne from hospital records to understand and deal
with a public health epidemic such as malaria or dengue to obviate a
serious impact on the population. If the State preserves the anonymity
of the individual it could legitimately assert a valid State interest in
the preservation of public health to design appropriate policy
interventions on the basis of the data available to it.”
the way Section 7(1) is drafted in the Bill is not meant to preserve
anonymity. Instead, it is a violation of the Fundamental Right to
Privacy by compelling an individual to disclose whether they have
undergone surgery to identify as ‘female’ or ‘male’.
Prescribed punishments in the Bill
provision that is likely to fall under constitutional scrutiny is
Chapter VIII of the Bill, which deals with offences and penalties.
Section 18(d) of the Bill says that whoever “harms or injures or
endangers the life, safety, health or well-being of a transgender
person” or does any act that would amount to “physical abuse, sexual
abuse, verbal and emotional abuse, and economic abuse” shall be
punishable with a minimum imprisonment of six months but that does not
exceed two years, and with a fine.
are several issues with such a provision. First, it can be argued that
this provision makes the law ‘manifestly arbitrary’. This is a principle
which enables a court to strike down a law if it appears to the court
that the legislature has enacted a law ‘capriciously, irrationally
and/or without adequate determining principle’.
terms physical, economic, verbal, emotional and sexual abuse have not
been defined. In the context of this Bill, where such actions of abuse
can lead to imprisonment, clear definitions are essential. Second and
more importantly, all the myriad acts of abuse have been clubbed
together under one umbrella, to be meted out the same punishment.
Arguably, this makes the law manifestly arbitrary. In the judgment on
instant triple talaq, Justice R. F. Nariman had opined
that a legislation can be struck down on the ground of manifest
arbitrariness alone. If the Transgender Persons (Protection of Rights)
Bill, 2019 is challenged in court, this could be a core argument against
the strongest argument against Section 18(d) is the fact that it
violates the classification test embodied under Article 14 or the
Fundamental Right to Equality. As per this doctrine, if a legislation
creates two categories and treats them differently, it must show that
the classification was on the basis of ‘intelligible differentia’, and
second, there must be a ‘rational nexus’ between the differentia and the
object that the legislation seeks to achieve.
The Transgender Persons (Protection of Rights) Bill, 2019
does not envision rape in the context of trans persons. It mentions
sexual abuse in passing without defining it. Even if rape could be
interpreted as a form of sexual abuse, there is a huge difference in
punishment between sexual abuse under the Bill and rape under the Indian
Penal Code (IPC), 1860. In the IPC, rape of a cis woman is punishable
with a minimum of 10 years of imprisonment. The Bill, on the other hand,
has a maximum punishment of two years for sexually abusing a trans
person. This leaves a gaping hole when it comes to criminalizing rape
against trans persons.
Bill, therefore, leads to the creation of two categories of victims –
‘cis women’ and ‘trans persons’ – and treats them differently by
acknowledging the possibility of rape for the former but not for the
latter. If sexual abuse is interpreted as including rape, under the
Bill, then also Section 18(d) creates an artificial distinction between
the rape of a cis woman and that of a trans person by providing a much
lesser punishment for rape than under the IPC.
differential treatment of rape / sexual abuse does not satisfy the
reasonable classification test under Article 14 of the Constitution. If
the objective of the legislation is to ‘protect’ trans persons, that
objective cannot be met when a heinous crime like rape is not only not defined, but has also not received a punishment commensurate with other similar provisions in the Indian legal system.
Potential next steps
that the Bill has now been passed in the Lok Sabha, the only obstacle
in its enactment is its passing through the Rajya Sabha. I spoke to some
of the members of the trans communities to ask them what could be a
roadmap for future action against the Bill. Dr. Karthik Bittu, Associate
Professor of Biology and Psychology at Ashoka University, Sonipat
suggested that one way could be to get the Rajya Sabha refer the Bill to
a Select Committee for a review of its provisions.
Gupta, Deputy Program Manager with Humsafar Trust, Delhi felt that
while referring the Bill to the Select Committee might persuade the
legislature to make amendments, it would considerably delay the Bill
being passed. She feared that this delay could be leveraged by the
government as a political tool to divide the trans communities. She also
pointed to the need for maintaining a dialogue with Members of
Parliament supportive to their cause, such as Shashi Tharoor and Supriya
Sule. As important it is for the law to be enacted, Sowmya Gupta
emphasized the importance of collecting socio-economic data on trans
persons, which would inform the welfare provisions in the law.
this point of time, many in the trans communities are waiting to see
whether the Bill passes through the Parliament before thinking of
strategies to bring forth a legal challenge to the law. What is clear,
however, is that while the law can definitely be challenged on some of
the grounds discussed here, the project of bringing about a law that
aligns with the aspirations of the trans communities is still distant.
can only happen outside the court rooms through a process of dialogue
with the State. That remains a battle for the long haul.
About the main photo: A scene from the 'Kolkata Rainbow Pride Walk 2017' (photograph is representative in nature). Photo credit: Kaushik Gupta.