Supreme Court Issues Notice On Plea Challenging Lesser Punishments For Offences Against Transgender Persons

The Supreme Court on Friday issued notice to the Union Government in a writ petition filed challenging the Constitutional validity of Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 and seeking directions to provide stringent and severe punishment for offences against transgender persons.

A Bench comprising Justice Nageswara Rao and Justice BR Gavai tagged the petition with other similar matters.

The petition filed by a social worker and a transgender activist Kajal Mangal Mukhi has sought directions for the classification of offences against transgender persons and setting of penalties for the same in accordance with companion offences penalised by the Indian Penal Code, 1860, Bonded Labour (System Abolition) Act, 1976 and The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

The petition filed through Advocate Shantanu Kumar has sought direction issuing and framing guidelines in order to fill the gaping legal lacunae with an objective to ensure and implement effective and purposeful legal framework for the protection and welfare of Transgender in India.

It has been argued that section 18 of the Act is discriminatory and against the basic and established principles of law. Further, it also violates the basic human rights of the transgender persons.

Section 18 of the Act, which provides for offences and penalties under the Act, and provides for punishment of imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.

According to the petitioner, the provisions of the Act are against the Fundamental Rights of the Transgender persons as well as such irrational and imbalance punishment from the crime against the transgender directly hampers the protection and social security in India.

Referring to the impugned Act, the petitioner has submitted that the provision for punishment for serious crimes committed against transgender people is substantially less severe than for the same crimes committed against cis-gendered people as defined and mentioned in Indian Penal Code, 1860.

Further, it has been stated that Section 18 identifies a broad range of offences against transgender persons, ranging from bonded labour and denial of the right of passage, and committing physical abuse and sexual violence, etc, but, if the Indian Penal Code, 1860 is referred to determine the liability of an offender for committing any crime as mentioned in the impugned section or for reference purpose, even then, the provision of IPC could not be brought into light since many sections including 354, 354B-354-D, 375-376-E, 509 are gender-based

The petition has pointed out that section 18 talks about discrimination of a specific nature and does not state the general discrimination that transgender people face on frequent occasions. However, in order to ensure effective protection to transgender people, it is expedient that discrimination of residuary nature is also dealt with.

According to the petitioner, a punishment with imprisonment for a term which shall not be less than six months but which may extend to two years is not sufficient enough to prevent people from committing the offences/discrimination against transgender people.

The petition has stated that even after the enactment of the act, the crimes against transgender people did not reduce and the prime reason for these offences are the lack of effective enactment.

It has been argued that the Transgender Person (Protection of Rights) Act, 2019 lacks in providing the proper definition of the offences and the present provision falls woefully short since it does not specify the exact non-consensual acts that are sought to be prohibited.

The petition has stated that after the Transgender Persons Bill 2016 was introduced by the Government in Lok Sabha, and was opposed by the Transgender community, the bill was referred to a Standing Committee which had heavily criticised the bill. However, ignoring the widespread protests, the bill was passed and became an Act, the petitioner says.

Case Title: Kajal Mangal Mukhi vs Union of India & Anr |W.P.(C) No. 985/2021

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