News By/Courtesy: Pushpit Singh | 28 Jan 2020 8:02am IST

HIGHLIGHTS

  • The Supreme Court agreed to hear a petition challenging the constitutional validity of the Transgender (Protection of Rights) Act, 2019
  • Filed by Assam's first transgender Judge, Swati Bidhan Baruah, the petition assails the Act on the grounds that it is in violation of the rights to life, privacy, and equality
  • The Bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant issued notice in the plea.

The Supreme Court agreed to hear a petition challenging the constitutional validity of the Transgender (Protection of Rights) Act, 2019

Filed by Assam's first transgender Judge, Swati Bidhan Baruah, the petition assails the Act on the grounds that it is in violation of the rights to life, privacy, and equality and also goes against the Supreme Court's NALSA judgment.

The Bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant issued notice in the plea.

The petition contends that while the Apex Court, in its NALSA judgment, had directed the states and the Centre to ensure that the fundamental rights of the transgender community were not violated, the newly enacted legislation "sets the clock back" and negates the positive steps taken through the judgment. 

"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".
Petition filed by Swati Bidhan Baruah

Despite the Apex Court upholding the right to self-identification of gender as a fundamental right under Article 21 of the Constitution of India, the 2019 Act provides for a state mechanism for this process of gender identification.

The provisions under Sections 4 and 7 of the Act provide for a certification process by the District Magistrate for the gender identification of a transperson. It is added that this process is "manifestly arbitrary" and a "disproportionate invasion of privacy" of the persons of the trans community.

The state mechanism for identification of transgenders is an "unconstitutional concept" and the provisions of the Act reinfiorce the prejudice against the marginalised community instead of attempting to eliminate the same, the petitioner argues.

Further, the punishment for endangering the life of or committing any sexual offence against a trans person is only six months. The punishment is "grossly inadequate" for such heinous crimes, the petition adds. No remedy is provided for in the Act for discrimination against the people of this community, it is pointed out.

The Supreme Court's NALSA judgment calls for the transgender community to be treated as socially and educationally backward, but no steps in this regard have been enumerated in the Act. The legislation does not require the concerned government to take any steps to secure rights for the trans people, it is averred. 

"The impugned Act is a regressive piece of legislation which is more likely to harm the interests of the trasngender community in India. The impugned legislation has several provisions which suffer from the vice of arbitrariness and vagueness".
"The Transgender (Protection of Rights) Act, 2019 is wholly and irreparably in violation of the right to life with dignity of transpersons".

- Swati Bidhan Baruah, in her petition

Section Editor: Prithvijit Mukherjee | 28 Jan 2020 12:42pm IST


Tags : #SupremeCourt #TransgenderAct2019 #ConstitutionalValidity

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