Challenge to provisions of Transgender Persons Act, 2019: Staying the entire Act will have disastrous consequences, Karnataka HC
The Karnataka High Court on Friday expressed serious reservations on granting interim relief by staying the entire Transgender Persons (Protection of Rights) Act, 2019.
The Court was hearing a plea challenging the constitutional validity of various provisions of the Act. The Division Bench of Chief Justice Abhay Shreeniwas Oka and Justice Vishwajith Setty orally observed,
“There is a well-settled principle in law that there is a presumption of constitutionality for statutes. What happens if we stay it? The entire Act will be stayed….it will have disastrous consequences.”
Karnataka High Court
The plea moved by NGO Ondede seeks to challenge Sections 4, 5, 6, 7, 12 (3), 18 (a) and 18 (d) of the Transgender Persons (Protection of Rights) Act, 2019.
It is the petitioners’ case that though the 2019 Act was passed to provide rights to transgender persons, the provisions of the Act are in fact completely violative of Articles 14, 15, 16, 19 and 21 of the Constitution.
As per Section 4 of the 2019 Act, a transgender person shall have the right to be recognised only as a ‘transgender’ and not as male, female, transgender or other. This is challenged as being contrary to what was held by the Supreme Court in NALSA v. Union of India. The plea reads,
“In NALSA v. Union of India, the Hon’ble Supreme Court held that the self determination of one’s gender identity as male, female or transgender is part of one’s most intimate decisions and one that goes to the core of one’s right to life and autonomy. Hence compelling persons to only identify oneself as male or female would be completely in violation of one’s right to gender identity under Article 21.”
The PIL further contends that Sections 5, 6, and 7 of the 2019 Act requires a person to procure a certificate of identity as a transgender person and for the same, one is required to make an application to the District Magistrate.
This application is required to be accompanied with documents including medical reports. This is in gross violation of Supreme Court judgment as it clearly stated that gender self-determination cannot be based on medical reassignment or any other procedure, states the plea.
The plea also assails Section 12 (3) of the Act, which states that in cases where a parent or an immediate family member is unable to take care of the transgender person, then the Court shall direct such a person to be placed in a rehabilitation centre.
The constitutionality of Section 18 – which deals with punishment for physical, mental and sexual offences committed against transgender persons – is also questioned.
Under this provision, the punishment is imprisonment for a term ranging from six months to two years.
The PIL submits that the same is violative of Article 14 of the Constitution, as the punishment for offences of sexual assault against women, as envisaged in the Indian Penal Code, is seven years and above.
On these grounds, among others, the petition prays to declare the said provisions of the 2019 Act as unconstitutional.
As interim relief, the plea seeks a stay on the operation of the 2019 Act.
The matter will be next heard on January 6.
Courtesy : Bar and Bench