A trans activist, KM filed a petition before the Apex Court challenging the validity of Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 (Hereinafter refereed to as ‘the Act’). Section 18 of the said Act provides punishment for a list of offenses including bonded labor, refusal of the right to passage, removal of the person from their dwelling, and danger to life, including mental, physical, and sexual abuse. The section entails a jail time between six months to two years with a fine.
The petitioner claimed that the Section was violative of the fundamental rights guaranteed under Articles 14, 15, and 21 and it should be struck down as it is unconstitutional. The petition argued that Section 18 also infringes the notion of proportional equality as the punishment is the same for different crimes under the Section. The petition guided to a report given by the Departmentally Related Standing Committee for Social Justice and Empowerment which assessed the Transgender Persons (Protection of Rights) Bill, 2016. The said report stated that crimes that affect physical and sexual assault must be met with serious punishment. The petition also asserted that the penalty for offenses against women is higher as compared to offenses against transgender persons, transgressing their right to equality which was given by NALSA v Union of India. The lack of clear laws and lenient punishments fails to deter persons from committing an offense against transgender persons. It also claimed that the Act covers only offenses that are general and do not consider offenses that are more specific to the transpersons community. The Act does not recognize violence and discrimination in educational institutions, healthcare institutions, police stations, jails, shelters, and remand homes. It even fails to cite abortion of intersex foetuses and forced surgical assignment of sex of intersex infants.
Considering all the claims of the petition, the divisional bench consisting of Justice Nageswara Rao and Justice BR Gavai issued a notice to the Central government seeking their response on this matter. The bench said, “Issue notice (to the ministry of social justice and empowerment) and tag along with the other (pending) petition,”.
– Vaishali Jain, Advocate & Associate – POSH at Work & Hamda Arfeen