• SC issues notice to Centre on a plea against ‘Transgender (Protection of Rights) Act, 2019’

    The Leaflet

    January 28, 2020

    The Supreme Court today issued notice to the Central Government on a petition challenging the constitutional validity of the ‘Transgender (Protection of Rights) Act, 2019’ as being violative of right to life, privacy and equality of transpersons.

    A three-judge bench comprising the Chief Justice of India (CJI) S A Bobde, Justices B R Gavai and Surya Kant has issued a notice.

    Petitioner – Swati Bidhan Baruah, a trans person, has submitted before the court that the right to self-identification of gender identity is a fundamental right that forms part of the right to life under Article 21 of the Constitution. The Transgender Act, however, provides for a method of state-identification of transpersons by a process of certification by the District Magistrate. The Petitioner, therefore, submits that this method is a disproportionate invasion into the right to privacy of transpersons and is manifestly arbitrary.

    Further, it has been contended that the provisions intended to grant a right against non- discrimination is completely toothless and no remedy has been provided for the violation of these provisions. The petitioner submits that these provisions are contrary to Articles 14, 15 and 16 of the Constitution of India.

    Petitioner adds Section 18 permits the imposition of as little as six months imprisonment for acts such as “endangering the life of a transperson” or sexual abuse of a transperson. The provision, according to the petitioner, is completely arbitrary and irrational. The provision violates the right to life of transpersons by prescribing grossly inadequate punishment for heinous acts”, says the petition.

    The petition filed through Advocate-on-Record Rashmi Nandakumar relies upon the decision of the apex court in National Legal Services Authority and ors v. Union of India, (“NALSA”), which conferred equal rights on transgender persons, besides crafting a ‘third gender’.

    “In NALSA, the Supreme Court 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. The Act contains no such measure. In fact, the Act contains no specific measure to be adopted by the appropriate Government for furthering the right to equality of transpersons. The Petitioner submits that the impugned Act is a regressive piece of legislation which is more likely to harm the interests of the transgender community in India”, petitioner says.

    Attacking the Sections 4 to 6 of the Transgender Act, 2019, the petitioner contends that they violate the right to life with dignity guaranteed under Article 21. The Act, the petitioner says, restricts the right of a transperson to self-identification of gender identity by making it conditional on a certificate issued by the District Magistrate.

    The contentious Transgender Bill, 2019 was passed by the Parliament on September 26, 2019. It had received the assent of the President on December 5, 2019. The said Act came into force from January 10, 2020.


    First published in The Leaflet.

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