Taking Rights Seriously Or Evincing State Endorsed Chauvinism: A Critique Of The Transgender Persons (Protection Of Rights) Act, 2019
Arpit Jain, Assistant Professor, Government Law College, Dewas (M.P.)
ABSTRACT
The Central Government notified much awaited law for the welfare of transgender society on January 10, 2020 titled as The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as ‘The Transgender Act’) only to get it challenged by Swati Bidhan Baruah who happens to be the first transgender judge of Assam. The Supreme Court accepting her plea has issued notice to the Centre. Twenty-first Century is a witness to more of narrow tailored law in contrast to erstwhile resistance to such heroic Acts. This paper attempts to unearth the legislative intent of such law – whether are they actually progressive or regressive. The vivid heterogeneity of India is not left untouched by colours of trans-sexuality and trans-gender identity. The Supreme Court and the High Courts have, in a catena of cases held that transgender should be uplifted by the state as they have barely survived the wrath of the cliché society. Categorically the Supreme Court in the NALSA judgment2 recognised the marginalised and downtrodden status of the transgender persons and held that the strata fit to be recognised as socially and educationally backward class. It reasoned that the benefits of Articles 14, 15 and 163 – the legal equalizers should be extended to such class. The Act shows no such measures despite other sugar-coated lackadaisical and fragile provisions. The penalty4 is so megre that a perpetrator aware of it would rather be charged than deterred. The Act is also invasive to the privacy of the transgenders as it mandates District magistrate to issue an Identity Certificate to such person. The Act further lays down procedure of intimation of Sex Reassignment Surgery to the District Magistrate. Such provisions are violative of law held in K.S. Puttaswamy v. Union of India5(hereinafter referred to as the ‘Puttaswamy judgment’).
Keywords: transgender, trans-sexual, trans-person, privacy, sex reassignment surgery
