The plea said, the “Act instead of furthering or protecting the fundamental rights of transpersons, violates and facilitates the violation of the right(s) to life, privacy and equality of transpersons”. (File)
The Supreme Court on Monday issued notice on a plea which said that the Transgender (Protection of Rights) Act, 2019 was a “regressive piece of legislation” which “reinforce the very prejudice” it should have aimed to eliminate and “is more likely to harm the interests of the transgender community in India”.
A bench headed by Chief Justice of India S A Bobde issued notice on the plea by Swati Bidhan Baruah, Assam’s first transgender judge.
The plea said, the “Act instead of furthering or protecting the fundamental rights of transpersons, violates and facilitates the violation of the right(s) to life, privacy and equality of transpersons”.
It referred to the SC’s 2005 judgment in National Legal Services Authority vs Union of India and said it “recognised the marginalisation of and discrimination against trans-persons in India and directed the Union and State Governments to take necessary remedial steps to ensure that fundamental rights of transpersons are not violated”.
It added, “This recognition of the struggles of transpersons was a signal to Parliament and the state legislatures to enact progressive legislations giving full effect to the fundamental rights of transpersons.”
“The impugned Act, however, sets the clock back and negates even the protections secured to transpersons” by the judgment in the NALSA case, the plea said adding it “has several provisions which suffer from the vice of arbitrariness and vagueness”.
On the alleged infirmities, it said the right to self-identification of gender identity is a fundamental right that forms part of right to life under Article 21 of the Constitution as per the 2005 judgment.
However, “the impugned Act provides for a method of state-identification of transpersons by a process of certification by the District Magistrate”, it said, adding this was a violation of the right to privacy and arbitrary.
The provisions in the Act intended to grant a right against non-discrimination “are completely toothless and no remedy has been provided for the violation of these provisions”, Baruah contended.
“Section 18 permits the imposition of as little as six months imprisonment for acts such as “endangering the life a transperson” or “sexual abuse of a transperson”, the petition said, and added that this too was arbitrary and irrational.
The petition contended that the SC in its NALSA judgment had “expressly directed the Union and State Governments to take steps to treat transpersons as Socially and Educationally Backward Classes of citizens for the purposes of reservation in educational institutions and in public employment” but the Act contains no such measure.