The Supreme Court on Monday asked the government to explain why a law meant to protect the transgender community requires a magistrate’s certificate as a prior condition for the State to even identify a transperson.
A Bench led by Chief Justice of India Sharad A. Bobde issued formal notice to the government on the petition filed by Swati Bidhan Baruah, an Assam-based advocate and transgender rights activist, who argued that the “right to self-identification forms part of right to life under Article 21 of the Constitution”.
The petitioner, a trans person who was a part of the one of the first litigation for transgender rights in the Bombay High Court, contended that the Transgender (Protection of Rights) Act of 2019 has “instead of furthering or protecting the fundamental rights of transpersons, violates and facilitates the violation of their rights to life, privacy and equality”.
The petition, represented by advocate Rashmi Nandakumar, argued, “The Act provides for a method of state-identification of trans persons by a process of certification by the District Magistrate. The petitioner submits that this method is a disproportionate invasion into the right to privacy of trans persons and is manifestly arbitrary.”
The Act, the plea said, actually sets the clock back and negated even the protections secured to trans persons by the Supreme Court through its 2014 judgment in the NALSA case, which had recognised the discrimination suffered by trans persons and directed the government to protect their fundamental rights.
The petition said the provisions in the Act, intended to grant a right against non-discrimination, were completely toothless. It pointed out that the Act provided “as little as six months’ imprisonment” for person found guilty of endangering the life of or for sexual abuse of a transperson. “The provision violates the right to life of trans persons by prescribing grossly inadequate punishment for heinous acts,” it said.
The apex court had directed the government to include the transgender community to be treated as Socially and Educationally Backward Classes of citizens for the purposes of reservation in education and public sector employment. The Act, however, contained no such measure, it said.