The transgender community has once again been let down, as the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2018. The Bill, ostensibly aiming to protect transgender persons’ rights, has been drafted hastily, with no real understanding of gender identity and expression.
Where does the problem lies ?
Drafted by the Ministry of Social Justice and Empowerment in 2016, the Bill was met with immediate protests from the transgender and intersex community as it has several provisions that take away from the rights accorded through NALSA while injecting dis-empowering and regressive clauses.
- Self Identification of Gender is lost :-
People’s self-identified gender expression is lost in the Bill. It proposes setting up a District Screening Committee comprising five people, including a medical officer and a psychiatrist to certify a transgender person. This process is in direct violation of the Supreme Court’s directions in National Legal Services Authority v. Union of India (or NALSA), 2014 that affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS). In fact, NALSA had clearly directed that “any insistence for SRS for declaring one’s gender is immoral and illegal”.
- No Employment Opportunities :-
The Bill does not provide for employment opportunities through reservations, disregarding the directions of the Court in NALSA “to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”
- Criminalising Begging :-
The Bill also criminalises begging, thereby targeting transgender persons who rely on begging for sustenance. Provisions such as these could give immunity to the police to exert force on transgender persons and “rehabilitate” them in beggars’ homes or detention centres against their will. Such harsh measures of detaining marginalised individuals under the garb of rehabilitation have also been criticised by the Delhi High Court in Harsh Mander v. Union of India, 2018, declaring provisions of the Bombay Prevention of Begging Act, 1959 as unconstitutional on grounds that it violates Article 14 (equality before the law) and Article 21 (right to life and personal liberty), and affects the rights of persons who have no other means of sustenance but to beg.
- Fails to Protect Sexual assault or rape on Transgender :-
The Bill fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognises rape in strict terms of men and women as perpetrator and victim, respectively. While the Bill makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.
- Deprivation of Fundamental rights :-
The Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.
Therefore the Activist believes the Bill in its present form continues to push them into obscurity, making a mockery of their lives and struggles by failing to secure for them their constitutional rights.
Conclusion :- The need of the hour is a robust Bill with strong anti-discrimination provisions & The community has its hopes pinned on the Rajya Sabha. It is hoped that the Bill will be revised and brought in line with the NALSA judgment to ensure full realisation of transgender persons’ fundamental rights.
About NALSA VS Union of India, 2014 Judgement :-
National Legal Services Authority v. Union of India is a landmark decision by the Supreme Court of India, which declared transgender people to be a ‘third gender’, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. This judgement is a major step towards gender equality in India. Moreover, the court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.
The draft statute DNA Technology (Use and Application) Regulation Bill, 2018, approved by the Union Cabinet in July, not only disregards the serious ethical dilemmas that are attendant to the creation of a national DNA database, but also, contrary to established wisdom, virtually treats DNA as infallible, and as a solution to the many problems that ail the criminal justice system. What’s more, any infringement of civil liberties, caused by an almost indiscriminate collection of DNA, is seen as a legitimate trade-off made in the interests of ensuring superior justice delivery. But what the Bill fatally ignores is that the disproportionality of the DNA bank that it seeks to create, and the invasiveness of its purport and reach, imposes a Faustian bargain on the citizen.
DNA Use :-
- The genes encoded in deoxyribonucleic acid (DNA), which can be collected from blood, hair, skin cells and other such bodily substances, have undoubtedly proven to be an important tool in forensic science.
- Much like fingerprints, a person’s DNA profile is unique (except in the case of identical twins) and can, therefore, help in establishing the identity of, say, a suspect.
- Across the world, the use of DNA evidence has helped exonerate a number of innocent people from wrongful conviction, and has also helped find the guilty party in complex investigations.
- It is to that end that we no doubt need a law to help regulate the manner and circumstances in which the state may be entitled to collect biological material from a person. The requirement for such a law is only accentuated by an amendment made to the Code of Criminal Procedure in 2005, which expressly authorises investigating officers of a crime to collect a DNA sample from an accused with the help of a medical practitioner.
But for years, every iteration of a proposed Bill, aimed at regulating the use of DNA, has failed to provide a constitutionally sustainable model.
Draft DNA Technology Regulation Bill, 2018 :-
Provide Power to State to collect DNA without consent :-
The draft law seeks to create a National DNA Data Bank, which will be maintained on the basis of various different categories, including a crime scene index, a suspects’ index and an offenders’ index, with a view to “facilitating identification of persons”. The proposed law, however, is not only decidedly vague on how it intends to maintain this DNA Bank, but it also combine its objectives by allowing the collection of DNA evidence not only in aid of criminal investigations but also to aid the determination of civil disputes.
Moreover, while consent is not required before bodily substances are drawn from a person accused and arrested for an offence punishable with either death or imprisonment for a term exceeding seven years, in all other cases a person refusing to part with genetic material can be compelled to do so if a Magistrate has reasonable cause to believe that such evidence would help establish a person’s guilt. Therefore, there’s no end to the state’s power in coercing a person to part with her DNA.
Infringement of privacy :-
In August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd) v. Union of India declared that the Constitution recognises a fundamental right to privacy, it also explicated the various facets of this right. Significantly, it ruled that any meaningful right to privacy would include protection over the physical body. Indeed, a 2012 report filed by a group of experts on privacy, led by Justice A.P. Shah, found explicitly that a person’s basic liberties stand violated by a compelled extraction of DNA from her body.
To be sure, that the right to privacy is infringed does not mean that the government cannot under any circumstances gather DNA evidence. What it does mean is that such collection ought to be made under a legislative regime guided by principles of necessity and proportionality. That is, the state must show that there exists a legitimate reason for extracting DNA evidence, and that the extent and scope of such extraction does not disproportionally contravene a person’s right to privacy.
The use of DNA evidence :-
In its present draft, however, the Bill woefully falls short of meeting these tests.
World over, the idea behind maintaining a DNA database is to help match and compare samples collected from a crime scene against a set of stored profiles, thereby helping in the identification of a potential suspect in a criminal investigation. India’s Bill, though, seeks to make the DNA Bank available for a slew of unconnected purposes, including permitting its use in civil cases.
Consider the consequences:
- A person wrongfully accused of a crime, say, for speeding a vehicle over permissible limits, who might have been compelled to give her genetic material may well see this evidence being used against her in an altogether different proceeding of a purely civil nature. Given that in India, even illegally obtained evidence is admissible in a court of law, so long as the relevance and genuineness of such material can be established, the Bill’s failure to place sufficient checks on the use of DNA evidence collected in breach of the law makes the process altogether more frightening.
- The Bill potentially allows DNA evidence to be used for any other purpose that may be specified through subsequent regulations, thereby according to the state a potential power to create a “genetic panopticon,”. This is a distinct possibility is clear from the range of privacy protections that are absent in the Bill. As Helen Wallace, Director, GeneWatch UK, wrote in these pages, the draft law does not restrict DNA profiling to the use of non-coding DNA, which would ensure that the evidence can only be used for the purposes of identification and not for determining personal characteristics, including medical conditions.
To enact the law in its present form, therefore, would only add a new, menacing weapon to the state’s rapidly expanding surveillance mechanism. We cannot allow the benefits of science and technology to be privileged over the grave risks in allowing the government untrammelled access to deeply personal and penetrating material.