LGBT Rights – Transgender Bill, Sec. 377, etc.

Amid the debate on the archaic sedition law that should have no place in democratic India, President called for the thorough revision of the IPC 1860 to meet the needs of the 21st century. Let’s see why is it so necessary to amend the code.

LGBT Rights – Transgender Bill, Sec. 377, etc.

Same-sex marriages cannot be recognized: Centre

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : LGBTQ Rights

The Centre has opposed any changes to the existing laws on marriage to recognise same-sex marriages, saying such interference would cause “complete havoc with the delicate balance of personal laws in the country”.

What is the case?

  • A petition had sought to recognize same-sex marriage.
  • Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.

What did the Centre say?

  • Living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept.
  • The Indian concept of family constitutes a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out.
  • It said the 2018 landmark judgment of the Supreme Court decriminalizing consensual homosexual sex in India was “neither intended to nor did it in fact, legitimize the human conduct in question”.

Why such a move by the Centre?

  • The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
  • Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, the government cautioned.
  • In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.

Back2Basics: Article 377 of IPC

  • Section 377 of the Indian Penal Code (IPC) is an act that criminalizes homosexuality and was introduced in the ear 1861 during the British rule of India.
  • Referred to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.
  • However, in a historic verdict, the Supreme Court of India on September 6, 2018, decriminalized Section 377 of the IPC and allowed gay sex among consenting adults in private.
  • The SC ruled that consensual adult sex is not a crime saying sexual orientation is natural and people have no control over it.
  • It also said that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

LGBT Rights – Transgender Bill, Sec. 377, etc.

National Council for Transgender Persons

Note4Students

From UPSC perspective, the following things are important :

Prelims level : National Council for Transgender Persons

Mains level : Trans-persons rights protection

The Ministry of Social Justice and Empowerment has constituted the National Council for Transgender Persons.

Try this question for mains:

Q.Discuss the salient features of the Transgender Persons (Protection of Rights) Bill, 2019. What are its various shortcomings?

National Council for Transgender Persons

  • It has been a requirement under the Transgender Persons (Protection of Rights) Act, 2019.
  • The Social Justice Minister would be the chairperson of the Council.
  • The members would include officials of the Ministries of Health, MHA, MoHUA, Minority Affairs, HRD etc. among others.
  • The council also includes five nominated members from the transgender community.

Its mandate

  • The council would work with States to ensure that transgender welfare boards are set up in all States and essential needs of the community, like housing, food, healthcare and education are met.

Also read:

Transgender Persons (Protection of Rights) Act, 2019

LGBT Rights – Transgender Bill, Sec. 377, etc.

No medical examination for Trans Persons

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Trans-persons rights

After facing flak from the transgender community, the Centre has done away with the requirement of a medical examination for trans persons applying for a certificate of identity in its latest draft rules framed under the Transgender Persons (Protection of Rights) Act, 2019.

Practice question for mains:

Q.What are the salient features of the Transgender Persons (Protection of Rights) Act, 2019? Also, discuss the loopholes.

What are the new rules?

  • The draft of the Transgender Persons (Protection of Rights) Rules, 2020, published stated that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, but without any medical examination.

Issue with the earlier draft

  • An earlier draft of the rules had mandated a report from a psychologist along with the affidavit for the application.
  • The transgender rights movement had opposed this, as it was seen as going against a trans person’s right to self-identification, which was upheld by the Supreme Court in 2014.

Change of gender is permissible

  • In case of change of gender, the application for new identification would require a certificate from the medical superintendent or chief medical officer of the medical institution where the applicant the surgery.
  • For this, the Centre has proposed a series of welfare schemes, including making at least one hospital in each State equipped to provide safe and free gender-affirming surgery and counselling and hormone replacement therapy among others.

Back2Basics: The 2014 Judgement on Trans-persons Rights

  • The Supreme Court in 2014 recognized transgenders as the third gender in a landmark ruling, saying it was addressing a “human rights issue”.
  • The ruling came after it heard a PIL filed by National Legal Services Authority (Nalsa) demanding equal rights.
  • The judgements said that non-recognition of gender identity amounts to discrimination under Article 15, which prohibits discrimination on the basis of sex.
  • The spirit of the constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender said justices K.S. Radhakrishnan and A.K. Sikri in their ruling.
  • Self-identification as man or woman, irrespective of sexual reassignment surgery, was now protected by law.
  • The judges said rights such as the right to vote, own property, marry and to “claim a formal identity” would be made available “more meaningfully” to the transgender community as a result of the ruling.

Transgender Persons (Protection of Rights) Bill, 2019

The Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019.

Key Features

  • Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
  • Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
  • Prohibition against discrimination: The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:
    • Education, employment, healthcare.
    • Access to or enjoyment of goods, facilities, opportunities available to the public.
    • Right to movement, right to reside, rent, or otherwise occupy property.
    • Opportunity to hold public or private office.
    • Access to a government or private establishment in whose care or custody a transgender person is.
  • Health care
    • The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
    • It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
  • It calls for establishing a National Council for Transgender persons (NCT).
  • Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.

LGBT Rights – Transgender Bill, Sec. 377, etc.

Transgender Persons (Protection of Rights) Act, 2019

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Transgenders and their upliftment measures


The Parliament has passed the Transgender Persons (Protection of Rights) Bill, 2019, with the Rajya Sabha approving it by a voice vote. The Lok Sabha had already passed the bill in December 2018.

Various provisions of the Bill

Defining Transperson

  • The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.
  • It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.

Prohibition against discrimination

  • It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public.
  • Every transgender person shall have a right to reside and be included in his household.
  • No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.

HRD measures

  • A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
  • Educational institutions funded or recognised by the relevant government shall provide inclusive facilities for transgender persons, without discrimination.
  • The government must provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.

Grievances redressal

  • The National Council for Transgender persons (NCT) chaired by Union Minister for Social Justice, will advise the central government as well as monitor the impact of policies with respect to transgender persons.
  • It will also redress the grievances of transgender persons.

Legal Protection

The Bill imposes penalties for the offences against transgender persons like bonded labour, denial of use of public places, removal from household & village and physical, sexual, verbal, emotional or economic abuse.

IPC & the need for modernisation


 

The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.

Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law

History:

  • The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington MacaulayAnswer in comments.>
  • It came into force in British India(but not princely states) during the early British Raj period in 1862
  • After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
  • Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC

Some notable points:

  • The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
  • It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
  • Today, it is the longest serving criminal code in the common-law world
  • Today, most of the commonwealth follows the IPC

Law Commission on IPC:

  • 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
  • 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
  • 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309

Past attempts at amendment:

  • Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
  • Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
  • As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
  • Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case

Why amend IPC?

  • The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
  • Some of the concepts underlying the code are either problematic or have become obsolete
  • there are many new offences, which have to be properly defined and incorporated in the code
  • Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
  • In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then

Specific cases or problems:

  1. Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
  2. Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
  3. Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
    It was added in 1913 by the colonial masters to deal with political conspiracies.
    Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime.
  4. Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
    Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
    Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
  5. The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
  6. Sexual offences under the code reveal patriarchal values and Victorian morality.
  7. Section 377:  Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case

 

Contrarian view point of Justice Hegde

We should not repeal something just because it’s 150 years old.

On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state

On IPC:  We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)

We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.

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