Welfare Schemes , Laws and Institutions for Transgenders & LGBT

Welfare Schemes , Laws and Institutions for Transgenders & LGBT

This article deals with ‘Welfare Schemes , Laws and Institutions for Transgenders & LGBT.’ This is part of our series on ‘Governance’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Issue 1: Section 377  of IPC

Section 377 of Indian Penal Code states that ‘Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life  and shall be liable to fine.’

Course of Things

1870 Indian Penal Code (IPC) came to force
2009 Naz foundation case – Delhi High Court declared Section 377 to be unconstitutional . It was held that Section 377 violated Articles 21 & 14  of the Constitution.  
2013 Suresh Kumar Kaushal case – Supreme Court  reversed previous judgement of Delhi High Court & held the validity of Section 377 . However, Supreme Court left it on the Parliament to change it.  

Supreme Court’s judgement in the Suresh Kumar Kaushal  vs NAZ Foundation Case is equaled by experts with Dred Scott case(1857) where the US Supreme Court denied the right of equality to Negros .  
2014 NALSA vs. Union of India
1. Supreme Court recognised a third gender status for transgender people .
2. Gave them the right to self identification of  gender as male, female or third gender.
3. Transgender people are socially and economically backward classes, they should be granted reservations in admissions to educational institutions and jobs

 
2018 Navtej Singh Johar v/s Union of India, 2018 case declared Section 377 of IPC as unconstitutional
Discrimination on the basis of ‘carnal intercourse against the order of nature’ is arbitrary and cannot be used as  classification criteria for purpose of legislative protection under right to equality
– Constitutional morality privileges over social or majoritarian morality.  

Arguments :Homosexuality isn’t unnatural and Section 377 should have been banned

1 . Cultural Aspect

  • This notion is based on Victorian Era  Morality where sex without intent to produce child was considered a sin
  • Books like Kamasutra, Mrichchhakatikam etc shows that it isn’t part of Hindu culture.  Hindu texts are not just open to homosexuality but treat gender as a fluid concept. Eg : Lord Shiva  represented as Ardhnarishwara ie half man & half women .

2. Constitutional Aspect

  • Provisions of Section 377 of IPC infringed
    • Right to Equality
    • Right to Expression  (sexual expression)
    • Right to Privacy (Part of Right to life after Justice Puttaswamy Judgement)

3. International Situation

  • United States , Britain (from where we introduced this law in India) & Nepal (other Hindu nation) etc have recognised LGBT rights

4. Health Aspect

  • Criminalisation of homosexuality leads to harassment by law enforcement agencies driving LGBT community underground . This increases the risk of HIV among the LGBT community 

5. Biological Aspect

  • Homosexuality is not against the order of nature
  • Homophilia is found in 450 species

Issue 2 : TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019

Provisions of the Bill  

  • Definition : transgender means a person whose gender does not match with the gender assigned to  person at birth 
  • Prohibition of  denial of service  to transgenders 
  • Right of residence: transgenders have right to reside  in his household.  
  • Welfare measures like rehabilitation, vocational training etc by the government.
  • Offences and Penalties: It has provision of imprisonment between 6 months and 2 years, and  fine.
  • National Council for Transgender persons (NCT) will be formed to advice the central government wrt transgender persons.

Critical Appraisal of the Bill

  • In  NALSA v. Union of India judgment, SC gave Transgenders right to self-identify their gender as male, female or transgender . But 2019 Bill  doesn’t allow self recognition of gender  as male or female . It only allows for identity certificate as ‘transgender’.
  • Supreme Court in NALSA Case provided for 2% reservation. New bill does not cover reservation provision
  • Compelling Transgenders to beg made  criminal offence => great implications as transgenders are  engaged in begging 
  • It does not give positive rights such as Rights of transgenders to  inheritance of property

Side note – International Examples: Ireland, Argentina and Denmark allows transgender community to self-determine gender 

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