The BJP-led government at the Centre could not hide its prejudice faced with the recommendations of a parliamentary standing committee on social justice and empowerment examining the Transgender Persons (Protection of Rights) Bill 2016.
Asked by the panel to exempt trans people from the ambit of Section 377 of the Indian Penal Code (IPC), sources in the Narendra Modi administration told The Times of India that the Centre is unlikely to meddle with this archaic legislation in a hurry.
The TOI report specifically pointed out that, "transgender persons remain at risk of criminalisation under Section 377," adding that, "the bill must at the very least recognise the rights of transgender persons to partnership and marriage." But terse reaction of an unnamed government source sums up the Centre's mood: "The issue of 377 is sub judice."
Framed by the erstwhile British rulers in 1860, IPC 377 condemns sexual intercourse "against the order of nature" involving man, woman or animal. Although the bulk of prosecution under this law pertains to child sex offenders, it is invoked by the police, as well as members of civil society, as a tool to harass, assault and blackmail people belonging to the LGBTQ community. In theory, however, the law could be invoked against literally anyone engaging in sexual behaviour that doesn't lead to procreation, since that alone, according to the understanding of the people who framed the law, is the natural function of sex.
IPC 377, which was read down by the Delhi High Court in 2009, was reinstated by the Supreme Court in 2013. It can now be repealed either by an Act of Parliament, which successive governments haven't been able to pull off, or if the Supreme Court takes cognisance of a curative petition, which is pending hearing. In the mean time, Home Minister Rajnath Singh has called homosexuality a mental illness, while a private member's bill that was introduced by MP Shashi Tharoor last year, was shot down in the Upper House.
Transgender people, though not mentioned explicitly in Section 377, are not immune from its oppressive influence. Ironically, their exclusion from the law also creates perverse problems while rendering justice to them. Recently, four men accused of gang-raping a transgender person in Wadgaon Budruk walked away scot-free after getting bail, because Section 377, under which the case was filed, does not cover people of the third gender. Rape, under Section 376 of IPC, is a non-bailable offence. However, it explicitly applies to women and doesn't cover those who identity as "other" gender.
In 2014, the Supreme Court, in a historic judgment now known as NALSA (National Legal Services Authority vs. the Union of India), upheld the constitutional validity of people belonging to the 'third gender', granting them all the rights and freedoms guaranteed to any man or woman in India.
The ruling was not perfect, by any means. It left trans men out of its scope and used a pejorative term like eunuch to describe trans people. But at the least, it seemed like a major stepping stone towards reforming the social and economic inequalities transgender people live with with. It led to the framing of the Transgender Persons (Protection of Rights) Bill, 2016 in 2016, over which the government is now breaking into a sweat.
As pointed out in an earlier story about inclusion of transgender people in Indian workplaces, the bill is also riddled with problems. In a blog on the website of Orinam, lawyer Surabhi Shukla pointed out a number of pitfalls. Starting with the way it imagines transgender identity (by linking biology with identity and ignoring gender fluidity) to making mandatory a certificate from a district magistrate for the establishment of trans identity to not giving reservations to transgender candidates, it went against several recommendations by NALSA.
Giving trans people the Other Backward Classes (OBC) status may not hurt the government much, as the Times of India report clarifies, but there is a technical glitch in realising this demand. The sole authority that can grant such classification, the National Commission for Backward Classes, doesn't exist any more. Abolished in favour of creating a similar committee with constitutional status, the legislation to do so is stuck with the Rajya Sabha now.
Securing civil rights for trans people — giving them a chance to marry, adopt children or have partners of their choice, for instance — seems like a near-impossible task though. As the 31-member panel, headed by a BJP MP, pointed out in its report last month, "civil rights like marriage and divorce, adoption, etc ... are critical to transgender persons' lives and reality", assuring the community that "a historic shift is underway, you are not alone in your struggle for the end of violence and discrimination."
The report also uses the strongest language to condemn precisely the kind of pussyfooting that the Centre is engaged in at the moment vis-a-vis Section 377. "While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight," it says, "there is most certainly shame and dishonour in being a homophobe, a transphobe and a bigot."
As matters stand, the government's intention of including transgender people in the mainstream is on the brink of being trumped by its own prejudices. Creating jobs and welfare facilities for the community will never be enough unless the notion of fundamental rights is extended to them as citizens are equal to any other, having the freedom to live, love and fulfill social roles of their choice.
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