Draft Transgender Persons (Protection of Rights) Rules 2020: Critical Appraisal
Yet again the Legislature has swiftly and quite smartly undertaken another step in ensuring bucket list being checked, pacification of sentiments and a law seemingly to be brought in place for protection of the community that deserves a much more attention than the present state and frame of mind with which they are dealt. This is in regard to the newly drafted and...
Yet again the Legislature has swiftly and quite smartly undertaken another step in ensuring bucket list being checked, pacification of sentiments and a law seemingly to be brought in place for protection of the community that deserves a much more attention than the present state and frame of mind with which they are dealt. This is in regard to the newly drafted and published Draft Transgender Persons (Protection of Rights) Rules 2020. As a sequel to the Act that was passed last year in December that was introduced and passed in the Lok Sabha amidst very many contentious issues- the pivotal being abrogation of article 370 of the Indian Constitution. The only law for the first time for undoing the historical injustices against the transgender community did not see much deliberations or even consultations from the transgender community members. As I called it the sequel, it is both a sequel to the law for this time it concerns the rules pertaining to the Act and a sequel pursuant to the manner in which it has been drafted and published.
The Draft Rules was published in the Ministry of Social Justice and Empowerment on 18th April 2020 and the last date for receiving comments was identified to be 30th April 2020 which barely gives 12 days to read, analyse and comment on the Rules for the "only" law concerning the rights of the community. Considering the fact that the community members are mostly severely disadvantaged- economically and educationally, is it possible for them to be able to undertake this process within this short span of time? Furthermore, amidst the strict lockdown how feasible is it for them to consult other activists or persons equipped with law? And finally, a question that lurks in this fast-paced scheme of things- what is the need for hurrying with the law (which anyway is laden with ambiguities of various kinds and a petition is pending before the Supreme Court)? When it took decades to have some form of legal recognition in 2014 with the landmark NLSA vs. Union of India judgement and almost six years since then for concertizing an enactment for protecting their rights, surely the members of the community could have waited for some more time!
Nevertheless, with respect to critically analysing the Rules, certain critical issues can be identified as follows:
1. Clause 4(1) lays down 'residence' to be an element to be verified by the District Magistrate when the application is vetted by the office. However, it is unclear on how would determination of place of residence be construed for those who reside in slums or ghettos and do not have any proof of address as such. Also, the requirement of residing for at least a year in the area within the jurisdiction of the Magistrate in whose office the application is to be submitted is in complete disregard to the harsh realities faced by the members of the community who are often met with brutalities and driven away from their rented houses.
2. Clause 6 mandates issuance of a revision certificate in cases where a transgender person (earlier having obtained a transgender certificate in accordance to Sections 4 and 5 of the Act and Rules 3-5) undergoes a Sex Reassignment Surgery (SRS). But, the provision is unclear in term of whether it is mandatory to have such a certificate or whether it is on a discretion of the person concerned. In case, it is made mandatory it would lead to multiplication and repetition of the same procedures earlier taken under Rule 5 to obtain identity cards and other documents with changed Name and Gender.
3. Furthermore, the Clause 7(1) assumes and once again sticks to the same old prevailing notion of bigenderism and thus from that perspective the decades long movements seem to be in futility when it mentions that the revised certificate would indicate the revised gender of the transgender persons post SRS as either male or female. This too is in complete ignorance of the sentiments of the transgender community members who wish to be known and identified as a transgender and many are not willing to be put in strict demarcations of female or male. This, they feel ensures the numerical existence of the transgender community as such, else there would be slow amalgamation of the transgender persons within either male or female.
4. Clauses 7(3) to 7(6) calls for duplication of the entire procedure as mentioned above and lead to harassment of the transgender persons. However, there remains ambiguity on the question whether a transwoman or transman (i.e. after surgery) as per the Rules being identified as either female or male, would be entitled to receive the benefits of the government for the transgender persons because their revised identity cards would determine them as either male or female.
5. Clause 8 lays down rejection of application by the District Magistrate. However, it does not provide for the grounds for rejection which fails to limit the unfettered discretionary powers of the District Magistrate. The reasons should be limited to only some in order to ensure that the transgender persons are not harassed at the DM's office.
6. Clause 9 provides for appeal from the rejection of the application. But, the appellate authority has not been identified and even though it seeks the 'appropriate government' to designate, for a sensitive concern like the transgender community it would be better to have a mechanism identified under the Rules.
7. Finally, the most controversial and fearful for the members of the community is Clause 10(5) on the rehabilitation centres to be established for the transgender community. However, it lacks clarity on who and on what basis would rehabilitation centres intake the transgender persons. Moreover, the process of identification of such transgender persons or how could they approach and be taken in these Centres is also not clear.
With issues being recognised in the present Draft Rules, some of the recommendations that could help in making the Rules better and ameliorating the plight of the transgender community are as follows:
1. For Clause 4(1) Place of residence may also be determined by some other determinants like habitual residence as understood from the neighbourhood.
2. For Clause 6 A revised certificate should not be mandatory and left to be at the desire of the persons concerned.
3. For Clause 7, it is humbly submitted that many transgender persons want to undergo the SRS but do not want to be identified as Male or Female, as mentioned above, so either this requirement be made discretionary or the transgender category be included along with the strict male and female classification.
4. For Clause 8, reason or reasons for such rejection including irregular medical reports or invalid documents or inadequate documents or irregularities in application or procedural issues or any other grounds requires to be identified.
5. For Clause 9, it is humbly submitted that the fear is unless the appellate forum is designated by the Central Government, the State Governments might not be willing to identify it and it might lead confusion among various States as to who could be the authority and thus uniformity would be compromised.
6. For Clause 10, it is humbly submitted that, a rehabilitation centre for either minors or adults who are harassed by anyone including State officials or family or peers or anyone else, battered or driven away from home or employment or educational institutions could be identified as the determinations. It could also be inferred from the otherwise vague Section 18 (that is out of scope of discussion here) that provides for the various forms of violence and discrimination faced by the community.
It is with extreme optimism and hope such recommendations are placed herewith for the cognisance of the government in order to take steps towards instilling confidence and faith among the members of the transgender community that they shall be able to live the dream of a free life they envision for themselves!
Views Are Personal Only
(Author is Ph.d Scholar at The West Bengal National University of Juridical Sciences, Kolkata)