HUMAN RIGHTS FOR WOMEN, CHILDREN AND TRANSGENDER PERSONS, HUMAN RIGHTS LAWS

HUMAN RIGHTS FOR WOMEN

INTRODUCTION

Attaining equality between women and men and eliminating all forms of discrimination against women are fundamental human rights and United Nations values. Women around the world nevertheless regularly suffer violations of their human rights through their lives, and realizing women’s human rights has not always been a priority. Achieving equality between women and men requires a comprehensive understanding of the ways in which women experience discrimination and are denied equality so as to develop appropriate strategies to eliminate such discrimination.

MEANING

Meaning of rights is clear in the picture, only when the concept of violence or crime against women would be clear.

The Semantic meaning of ‘crime against women ‘ is direct or indirect physical or mental cruelty to women. Crimes which are ‘directed specifically against women’ and in which ‘only women are victims are characterized as ‘Crime against Women’.

The United Nations defined “Violence against Women” in 1993 in Declaration on the Elimination of Violence against women. It defines it as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, where occurring in public or private life.

RELEVANT PROVISIONS AND STATUTES

CONSTITUTIONAL PROVISIONS

• ARTICLE 14: confers on men and women equal rights and opportunities in political, economic and social sphere.
• ARTICLE 15: prohibits, discrimination against any citizen on grounds to employment or appointment to any office under the state.
• ARTICLE 16: Provides for equality of opportunities matters relating to employment or appointment to any office under the state.
• ARTICLE 39(a) (d): Mentions policy security of state equality for both men and women the right to a means of livelihood and equal work for both men and women.
• ARTICLE 42: Direct the state to make provision to make provision for ensuring just and humane conditions of work and maternity relief.

INDIAN PENAL CODE, 1860

• SECTION 304 B: Dowry Death
• SECTION 354: Assault of criminal force to women with intent to outrage her modesty.
• SECTION 354 A: Sexual harassment and punishment for sexual harassment
• SECTION 354 B:  Assault or use of criminal force to woman with intent to disrobe.
• SECTION 354 C: Voyeurism
• SECTION 354 D: Stalking
• SECTION 366 A: Procuration of minor girl
• SECTION 366 B: Importation of girl from foreign country
• SECTION 372: Selling minor for purpose of prostitution, etc.
• SECTION 373: Buying minor for purpose of prostitution, etc.
• SECTION 375- 376 E: Sexual offences (rape, gang rape, etc)
• SECTION 498 A: Husband or relative of husband of a woman subjecting her to cruelty.
• SECTION 509: word, gesture or act intended to insult the modesty of a woman.

STATUTES

• The Dowry Prohibition Act, 1961
• The Indecent representation of women (Prohibition) Act, 1986
• The Commission of Sati Prevention Act, 1987
• The Protection of Women from domestic Violence Act, 2005
• The immoral traffic (Prevention) Act, 1956
• Factories Act, 1948
• Maternity Benefit Act, 1961
• The Equal Remuneration Act, 1976
• The Child Marriage Restraint Act, 1976
• The Medical termination of Pregnancy Act, 1971
• Protection of Human Rights Act, 1993
• Protection of women against sexual harassment at workplace Bill, 2010

INITIATIVE CURBING WOMEN HUMAN RIGHTS

INTERNATIONAL INITIATIVES

I. UN CHARTER

The Preamble of UN Charter sets as a basic goal to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.

II. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

It affirmed the principle of inadmissibility of discrimination and proclaimed that all human beings are born free and equal in dignity and rights and everyone is entitled to all rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex.

III. CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

• The General Assembly on November 7, 1967 adopted CEDAW, in order to implement the principles set forth in UDHR.
• This convention is often described as an International Bill of rights for Women.
• It has laid down s comprehensive set of rights to which all persons, including women are entitled, additional means for protecting the human rights of women.

IV. BEIJING CONFERENCE

• During the UN sponsored International Women’s Decade(1976-1985), the fourth conference was held at Bejing in 1995.
• It has greatly enhanced international awareness of the concerns of women.
• Conference stated that ‘Women’s rights are human rights’ and it called for integration of Women’s human rights in the work of different human rights bodies of United Nations.
• It considered the issue of violence against women in public and private life as human rights issues and called for the eradication of any conflict which may arise between the rights of women and harmful effects.

V. SPECIAL SESSION ON WOMEN BY UN GENERAL ASSEMBLY

UN General Assembly in 2000 convened a special session on ‘Women: Gender Equality, Development and Peace for 21^st Century’ to assess the progress on women’s issues.

VI. WOMEN AND UN- observe following days

• March 8: International Women’s Day
• February 6: International Day of Zero Tolerance to Female Genital Mutilation
• February 11: International Day of Women and Girls in Science
• June 19: International Day for the Elimination of Sexual Violence in Conflict
• June 23: International Window’s Day
• October 11: International Day of the Girl Child
• October 15: International Day of Rural Women

NATIONAL INITIATIVES

I. NATIONAL COMMISSION FOR WOMEN

In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc

II. RESERVATION FOR WOMEN IN LOCAL SELF-GOVERNMENT

The 73^rd Constitutional Amendment Act passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.

III. THE NATIONAL PLAN OF ACTION FOR THE GIRL CHILD (1991-2000)

The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future form the girl child.

IV. NATIONAL POLICY FOR THE EMPOWERMENT OF WOMEN, 2001

The Department of Women and Child Development in the Ministry of Human Resource Development has prepared a ‘National Policy for the empowerment of women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.

V. NATIONAL MISSION FOR EMPLOYMENT OF WOMEN, 2010

The launch of the National Mission for Empowerment of Women in March 2010 is an important development that will provide the much required fillip to a coordinated assessment of current government interventions and aligning future programmes so as to translate the MPEW prescription into reality. The Mission was operationalized during 2011-12.

REPORTS AND GUIDELINES

VERMA COMMITTEE REPORT

 I. INTRODUCTION

A three-member Commission, headed by former Chief Justice of India, Justice J.S.Verma which was assigned to review laws for sexual crimes submitted its report to the Government during January, 2013. The Commission has recommended comprehensive changes in criminal laws to deal with crimes and atrocities against women which are as under.

II. PUNISHMENT FOR OFFENCES

• Rape
• Rape followed by death or “persistent vegetative state”
• Gang rape
• Gang rape followed by death
• Voyeurism
• Stalking
• Acid attack
• trafficking

III. REGISTERING COMPLAINTS AND MEDICAL EXAMINATION

• Every complaint of rape must be registered, coming in knowledge by:
  • Police and
  • Civil society
• The protocol for medical examination of victims of sexual assault has also been suggested.

IV. MARRIAGE TO BE REGISTERED

As a primary recommendation, all marriage in India (irrespective of the personal laws under which such marriage are solemnized) should mandatorily be registered in the presence of a magistrate.

V. AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE

• The pane observed, “The manner in which the rights of women can be recognized can only be manifested when they have full access to justice and when the rule of law can be upheld in their favour”.
• So, proposed Criminal Law Amendment Act, 2012, should be modified, suggests the pane.

VI. BILL OF RIGHTS FOR WOMEN

A separate Bill of Rights for women that entitles a woman, a life of dignity and security and will ensure that a woman shall have the right to have complete sexual autonomy including with respect to her relations.

VII. REVIEW OF THE ARMED FORCES SPECIAL POWERS ACT

• The pane has observed that the “impunity of systematic sexual violence is being legitimized by the armed forces special powers act”.
• It has said there is an imminent need to review the continuance of AFSPA (Armed Forces Special Power Act) in areas as soon as possible.
• It has been also recommended posting special commissioners for women’s safety in conflict areas.

VIII. POLICE REFORMS

• To inspire public confidence, the panel said, “police officers with reputations of outstanding ability band character must be placed at the higher levels of the police force.”
• The penal strongly recommended that” law enforcement agencies do not become tools at the hands of political masters.”
• It even said, “Every member of the police force must understand their accountability is only to the law and to none else in the discharge of their duty”.

IX. ROLE OF THE JUDICIARY

• The judiciary has the primary responsibility of enforcing fundamental rights, through constitutional remedies.
• The judiciary can take suo-motu cognizance of such issues being deeply concerned with them both in the Supreme Court and the High Court.
• An all India strategy to deal with this issue would be Supreme Court and the High Court.
• The Chief Justice of India could be approached to commence appropriate proceedings on the judiciary side.
• The Chief Justice may consider making appropriate orders relating to the issue of missing children to curb the illegal trade of their trafficking etc.

X. POLITICAL REFORMS

• The Justice Verma committee observed that reforms are needed to deal with criminalization of politics.
• The panel has suggested that, in the event cognizance has been taken by a magistrate of a criminal offence, the candidate ought to be disqualified from participating in the electoral process.
• Any candidate who fails to disclose a charge should be disqualified subsequently.
• It suggested lawmakers facing criminal charges, who have already been elected to Parliament and state legislatures, should voluntarily vacate their seats.

VISHAKA GUIDELINES – AGAINST SEXUAL HARASSMENT AT WORKPLACE

Case: Vishaka and others V State of Rajasthan and Others

Hon’be Supreme Court laid down GUIDELINES and NORMS:

I. DUTY OF THE EMPLOYER OR OTHER RESPONSIBILITY PERSONS IN WORK PLACES AND OTHER INSTITUTIONS

It shall be the duty of the employer or other responsible persons in work places or other institutions:

• To prevent or deter the commission of acts of sexual harassment and
• To provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.

II. DEFINITION

For this purpose, sexual harassment includes such unwelcoming sexually determined behavior (whether directly or by implication) as:

• Physical contact and advances,
• A demand or request for sexual favors,
• Sexually colored remarks,
• Showing pornography,
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

III. PREVENTIVE STEPS

All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

• Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
• The rule or regulations of government and public sector bodies treating to conduct and discipline should include rules or regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
• As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
• Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

IV. CRIMINAL PROCEEDINGS

Where such conduct amounts to a specific offence under the Indian penal Code, 1860 and under other law:

• The employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
• In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
• The victims of sexual harassment should have the option to seek transfer of the perpetrator of their own transfer.

V. DISCIPLINARY ACTION

• Situation: Where such conduct amounts to misconduct in employment as defined by the relevant service rules.
• Dealing: An appropriate disciplinary action should be initiated by the employer in accordance with those rules.

VI. COMPLAINTS MECHANISM

• Situation: Whether or not such conduct constitutes an offence under law or breach of the service rules.
• Dealing: An appropriate complaint mechanism should be created in the employer’s organization for redress of the compliant made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

VII. COMPLAINTS COMMITTEE

• Introduction:
  • The complaint mechanism, referred to above, should be adequate to provide where necessary, a Complaints Committee a special counselor or other support service, including the maintenance of confidentiality.
• Composition of the complaints committee:
  • Headed by a woman.
  • Not less than half of its member should be women.
  • A third part, either NGO or other body who is familiar with the issue of sexual harassment (to prevent the possibility of any undue pressure or influence from senior levels).
• Committee’s annual report:
  • The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them.
• Employer’s and in-charge’s participation:
  • The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the government department.

VIII. WORKER’S INITIATIVE

Employees should be allowed to raise issues of sexual harassment at a workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

IX. AWARENESS

Awareness of the right of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

X. THIRD PARTY HARASSMENT

• Where sexual harassment occurs as a result of an act or omission by an third part or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
• The Central or State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private sector.
• These guidelines will not prejudice any rights available under the protection of human rights Act, 1993.

RECENT RELEVANT CASE

Ms. PARVEEN V THE STATE NCT OF DELHI AND OTHERS

‘An adult woman is free to reside wherever she wishes to reside.’

• The Delhi High Court has ruled that an adult or major girl is “free to reside whenever and with whoever she wishes to reside.” The observation was made by the HC at a time when central government ruling party ruled states have advocated for a law against ‘love jihad’.
• A division bench of Justices Vipin Sanghi and Rajnish Bhatnagar passed the order while hearing a habeas corpus petition filed by the family of a girl. The family had sought her production before the court.
• The petition alleged that the girl went missing on September 12. According to the family, she was kidnapped by a man, identified as Babloo. The woman was traced and produced before the court via video-conferencing.
• The girl, who is in her 20s, made her statement under section 164 CrPC wherein she categorically stated the she “went with Babloo of her own and that she has married him”.
• The HC then brushed aside the family’s objections and permitted her to reside with Babloo. The court also directed the police to provide security to the girl and the man.

CONCLUSION

Only legislation and law enforcement agencies cannot prevent the incident of crime against women and empower women to avail their human rights. There is need of social awakening and change in the attitude of masses, so that due respect and equal status is given to women. It’s a time when the women need to be given her due. This awakening can be brought by education campaign among youth making them aware of existing social evils and the means to eradicate same. Mass media can play an active role here as in the present days it has reached every corner of the nation. Various NGO’s can hold a responsible position here by assigning them with the task of highlighting social-economic causes leading to such crimes and by disseminating information about their catastrophic effect on the womanhood and the society at large.

HUMAN RIGHTS FOR CHILDREN

“Humanity has to do its best for the child”- Declaration of Geneva

CHILD

Etymologically, the term “child” comes from the Latin infant which means “the one who does not speak”. For the Roman, this term designated the child from its birth, up to the age of 7 years.

This notion evolved a lot through centuries and cultures to finally designate human being from birth until adulthood. But this conception of the child was ide and the age of the majority varied from a culture to another.

The Convention on the Rights of the Child (CRC), 1989 defines more precisely the term “child”:

“a child is any human being below the age of 18 years, unless under the law applicable to the child, adulthood is attained earlier”

 RECOGNITION OF CHILDREN RIGHTS

I. DECLARATION OF GENEVA, 1924

• Children’s rights were recognized after the 1^st world war, with the adoption of this declaration.
• It was of only five statements, but still outlined a list of responsibilities towards children who considered vulnerable.

II. DECLARATION OF CHILDREN’ S RIGHTS, 1959

• After the Second World War, the United Nations General Assembly accepted the Declaration of the Rights of the Child.
• Through the adoption of this declaration, UN kept the process of recognition of children’s rights in pace, as this Declaration paved the way for adoption of the Convention on the Rights of the Child in, 1989.

III. INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD, 1989

• The recognition of the child’s interest and his rights become real on 20^th November, 1989 with the adoption of this declaration.
• It is the first international legally binding text recognizing all the fundamental rights of the child, international text protecting children’s rights.
• It is the most widely ratified human rights treaty in history. It sets out the rights of children in 54 articles, briefed below-
  • ARTICLE 2: Children should not suffer discrimination
  • ARTICLE 3: In all decisions affecting children, their best interests should be the main concern.
  • ARTICLE 6: Children have the right to survive and develop healthily.
  • ARTICLE 12: Children have the right to have their views taken into account in matters that affect them.  

INTERNATIONAL AND NATIONAL INITIATIVE

INTERNATIONAL INITIATIVES

LEGAL PROTECTION

• African Charter on Human and Peoples Rights (Article 18(3)).
• African Charter on the Right and Welfare of the Child
• American Convention on Human Rights (Article 19)
• American Declaration of the Rights and Duties of Man (Article 7)
• Arab Charter on Human Rights (Article 10, 17, 33 and 34)
• Cairo Declaration on Human Rights in Islam (Article 7)
• Convention on the Elimination of All Forms of Discrimination against Women (Article 10 and 16)
• Convention on the Prevention and Punishment of the Crime of Genocide (Article 11(c))
• Convention on the Protection of the Rights of Migrant Workers and Members of their Families (Article 29,30 and 45)
• Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Article 5)
• European Social Charter (Article 7 and 17)
• International Covenant on Civil and political Rights (Article 10, 14 and 24)
• International Covenant on Economic, Social and Cultural Rights (Article 10, 12, 13)
• International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent countries (Article 28)
• International Labor Organization – Minimum Age Convention, 1973
• International Labor Organization – Worst Forms of Child Labor Convention, 1999
• United National Standard Minimum Rules for the Administration of Juvenile Justice
• United Nations Standard Minimum Rules for the Treatment of Prisoners (Article 8)
• Universal Declaration on Human Rights (Article 25(2))

CHILDREN AND UN SYSTEM

• United Nations Educational, Scientific and Cultural Organization (UNESCO) – Focuses on education.
• International Labor Organization (ILO) – To abolish child labor.
• UN Relief and Work Agency of Palestine Refugees in the Near East (UNRWA) – For children and Youth Programme.
• World Food Programme (WFP) – Provides with the nutritional work for mothers and young children.

NATIONAL INITIATIVE

RECOGNIZED CRIMES AGAINST CHILDREN UNDER INDIAN PENAL CODE, 1860

• Section 302: Murder
• Section 307: Attempt to commit murder
• Section 315: Infanticide
• Section 376: Rape
• Section 377: Unnatural offence
• Section 354: assault on Women (Girl Child) with Intent to Outrage on Women her Modesty
• Section 354A: Sexual Harassment
• Section 354B: Assault or Use of Criminal Force to Women (Girl Child) with intent to Disrobes
• Section 354C: Voyeurism
• Section 354D: Stalking
• Section 509: Insult to the Modesty of Women (Girl Child)
• Section 363, 364, 364A, 365, 366, 367, 368 and 369: Kidnapping and Abduction
• Section 315 and 316: Foeticide
• Section 305: Abetment of suicide of Child
• Section 317: Exposure and Abandonment
• Section 366A: Procuration of Minor Girls
• Section 366B: Importation of Girls from Foreign Country (under 18 years of age)
• Section 373: Buying of Minors for Prostitution
• Section 372: Selling of Minors for Prostitution
• SPECIAL AND LOCAL LAW
• Prohibition of Child Marriage Act, 2006
• Transplantation of Human Organs At, 1994(for persons below 18 years of age)
• Child labor (Prohibition and Regulation) Act, 1986
• Immoral Traffic (Prevention) Act, 1956
• Juvenile Justice (Care and Protection of Children) Act, 2000
• Protection of Children from Sexual Offences Act, 2012

RECENT CHILDREN HUMAN RIGHT CASE

ARTICLE 21A: RIGHT TO EDUCATION, Envisages that teachers must be meritorious: The Supreme Court

RIGHT TO EDUCATION ACT, 2009

• An Act is an enacted by the Parliament of India which serves the regulation and modalities of the free and compulsory education.
• According to the Act, every child has the right to education and not just education; he has the fundamental right to receive quality education.
• This Act enables every child between 6 and 14 in India under Article 21A, which makes it the fundamental right to education.

FACTS

• The Right to Education Act, 2009 holds provisions for the teachers under Section 23(1) of the Act talks about the minimum qualifications required for the application and appointment of teachers in schools.
• The state government of Uttar Pradesh acting under section 19 of U.P. Basic Education Act, 1972, altered the qualification percentage of the Assistant Teachers Recruitment Examination (ATRE)- 2019.
• The petition was filed in Allahabad High Court by the members of ‘SikshaMitras’ against the decision of State Government to set qualification criteria at 65- 60% in the examination. The court upheld the decision by the state government.
• The nature, patterns and difficulty level of the examination was also changed looking at the number of participants of the examination.

JUDGMENT

• The divisional bench of Supreme Court in the petition against the decision if Allahabad High Court that right to education is guaranteed under 21A of the Constitution of India which also includes the quality education and to achieve that the teachers must be meritorious and the best of the lot.
• The bench of Justice U.U. Lalit and M.M. Shantangoundar observed that the fixation of cut off at 65- 60% in ATRE-2019 examination was a valid and justified decision of State government of U.P.
• The court said that it is the duty of the state government to appoint best of the lots to fill the vacancies for 69000 assistant basic teachers.
• While analyzing the take of the state government over the issue, they provided court with the facts that:
• the number of applicants were far more than the required vacancies and
• even after altering the cut-off at 65-60%, the number of candidates getting through examinations were still greater than the required number.

RECENT CASES PROTECTING WOMEN AND GIRL CHILD TOGETHER-

I. UN WOMEN

• International Day to End Violence against women, following a campaign –‘orange the world’, means demonstrating your solidarity in eliminating all forms of violence. For 2020, theme is “Orange the World: Fund, Respond, Prevent, and Collect”.
• COVID-19 pandemic has been a reason of intimate partner violence reports rising across the globe, with calls to helplines increasing 5X in some countries, while restricted movement, social isolation and economic insecurity as a result of this pandemic.

II. SCOTLAND’S LEGAL RIGHT, TO FREE SANITARY PRODUCTS

• Scotland becomes first country to provide free period products for all. On 24^th November, 2020, Scotland voted to offer free universal access to period products, becoming the first country in the world to do so.
• The Scotland Parliament voted unanimously in favour of the Period Products Bill, which makes it a legal right to have free access to sanitary products in public buildings.

HUMAN RIGHTS FOR TRANSGENDER PERSONS

INTRODUCTION

Doing justice to historical and contemporary struggles to obtain transgender rights requires a rigorous analysis of the ‘paradoxical’ nature of human rights. Human rights extend symbolic recognition to individuals and groups providing them with formal freedoms and protections at the state’s behest. To achieve rights, vulnerable populations must render themselves intelligible through cultivating normative identities.

HISTORY

The whole of the transgender Community comprises of Hijras, enunchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. The concept is not new to Indian culture, they have been recognized in our ancient history as well and they, as a group, have a very strong history presence in the ancient Hindu mythologies where is “Kamal Shastra” they have been referred to as ‘trityapakriyi’ or third gender.

In the late 20^th century, some transgender activists and NGO’s have made continuous attempts for official recognition of the hijra as a kind of “third sex”, as neither a man nor a woman.

Transgender have successfully gained this recognition in South Asian countries like Bangladesh. They are also eligible for priority in education and certain specific kinds of low paid jobs. The Supreme Court, in India, in April 2014 recognized hijras, transgender people, eunuchs, and intersex people as a third gender in law.

 IN INDIA- GENDER ORIENTATION AND GENDER IDENTITY

Supreme Court struck down section 377 of Indian penal Code, 1860, decriminalizing consensual adult same sex relations. The ruling followed decades of struggle by activists, lawyers and members of LGBT communities. The court’s decision also has significance internationally, as the Indian law served as a template for similar law throughout much of the former British Empire. Relevant judgments were:

Case 1: Naz Foundation V Government of NCT of Delhi (2009)

Delhi High Court struck off section 377, legalizing consensual homosexual activities between adults.

Case 2: Suresh Kumar Koushal Case (2013)

• Supreme Court overturned the previous judgment by Delhi High Court (2009) that decriminalized homosexual acts and criminalized homosexuality once again.
• Supreme Court argued that in 150 years, less than 200 persons had been prosecuted under section 377.
• Therefore, “plight of sexual minorities” could not be used as argument for deciding constitutionality of law.
• Further, Supreme Court ruled that it was for the legislature to look into desirability of deleting section 377 of IPC.

Case 3: Justice K.S.Puttaswamy V Union of India (2017)

• Supreme Court ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.
• Supreme Court declared that bodily autonomy was an integral part of the right to privacy. This bodily autonomy has within its ambit sexual orientation of an individual.

Case 4: Navtej Singh Johar V Union of India (2018)

• Decriminalized homosexuality
• Dismissed the position taken by Supreme Court in Suresh case (2013) that the LGBTQ community constitute a minuscule minority and so there was no need to decriminalize homosexual sex.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHT) ACT, 2019

(Introduced by the Ministry for Social Justice and Empowerment.)

I. DEFINITION

• Definitions of ‘person with intersex variation’ and ‘transgender person’ have been provided to inter alia include trans men and trans women (whether or not such person has undergone sex reassignment surgery, hormone or other therapy).
• Inclusive definitions provide for ‘inclusive education’ to prevent discrimination, neglect, harassment and intimidation of transgender persons at schools, and ’institution’, for the protection and care of transgender persons.

II. NON DISCRIMINATION

• PROHIBITIONS: It prohibits the discrimination of transgender persons at educational establishments, in employment or occupational opportunities, healthcare services and access to public facilities and benefits.
• RIGHTS: It further reinforces Transgender Persons right of movement, right to property and holding of public or private office.

III. CERTIFICATE OF IDENTITY

• It provides of right to self-perceived gender identity and casts an obligation on the District Magistrate (a designation government official) to issue a ‘certificate of identity’ as a transgender person, without the requirement of any medical or physical examination.
• It further provides that a person undergoing surgery for change of gender to either male or female may make an application for issuance of a revised certificate indicating change in gender.

IV. EQUAL OPPORTUNITY

Every establishment has been mandate to formulate an equal opportunity policy with certain specific information as prescribed under the law.

V. COMPLAINT OFFICER

Every establishment has been mandate to designate a person as a complaint officer to handle complaints from transgender persons.

VI. WELFARE SCHEME

The government has been mandate to formulate welfare scheme and programs which are transgender sensitive, non-stigmatizing and non- discriminatory.

VII. MEDICAL CARE FACILITIES

The government has been mandated to set up separate HIV sero-survellance centers to conduct sero-survellance for transgender persons, provide for medical expenses by a comprehensive insurance scheme for sex reassignment surgery and other therapies.

VIII. NATIONAL COUNCIL FOR TRANSGENDER PERSONS (NCT)

Constitution of NCT to:

• Advise the government for the formulation and monitoring of policies and
• Redress the grievance of transgender persons.

IX. FOR PRIVATE EMPLOYERS

• Prohibition of discrimination
• Equal opportunity policy
• Infrastructure facilities (such as unisex toilets)
• Appointment of a complaint officer

X. OFFENCES AND PENALTIES

• OFFENCES: Like indulging transgender persons in forced or bonded labor or denied of access to public places, physical, emotional or sexual abuse or other offences committed under the provisions of the Transgender Persons Act,
• PUNISHMENT:
  • imprisonment for a term of at least six months, extending up to two years  and
  • fine.

XI. LIMITATIONS

I. AMBIGUOUS DEFINITION:

• The definition of ‘transgender persona’ is ambiguous and misleading. While a transgender person is one who has a different gender identity tan that provided at the time of birth. A ‘person with intersex variation’ is one whose gender is based on biological characteristics.
• Though the difference is subtly brought through the two separate definitions, the definition of ‘transgender persons’ has been made too broad to include a ‘person with intersex variations.’

II. INADEQUACY

The Transgender Persons Act probably remains inadequate as it fails to provide for as skeleton on various other related rights, like marriage rights, adoption rights etc- a missed opportunity to be even more inclusive.

III. INCOMPLETE

Some may argue that the Act may have appealed better to the transgender persons and been more comprehensive and effective had it provided for reservations (affirmative action) for transgender persons in education institutions and employment.

RECENT RELEVANT CASE

FACTS

• The case came into light after the plea filed by a Kerala University student against an exceptional provision which does not allow transgender persons persons in the National cadet Corps.
• Haneefa, the petitioner, had challenged section 6 of the National Cadet Corps Act, 1948, which only allow either “male” or “female” cadets.
• The petitioner in her plea also states that the fourth respondent i.e. national Cadet Corps, at the college, and the fifth respondent i.e. the associate NCC officer of University college, Thiruvanthapuram, informed her that there were no provisions for transgender to take admission and so she was not eligible.

COURT RULING

• Justice Ramchandran, heading a single-judge bench , was hearing the plea filed by Hina Haneef, opposed her exclusive from the NCC unit at the college on the basis of her gender.
• The Court said, “A person cannot be denied a legitimate right only because she is a transgender.” Justice Ramachandran further said that the Centre’s stance for transgender goes against Kerala’s policy and also it does not justify the current status.
• The Central Government standing  stated that the application could not be accepted as it was not discrimination, but reasonable classification as per Article 14 of the Constitution of India.
• The court also directed NCC to file a written statement and ordered Haneef’s University to keep a seat vacant for her enrollment.

BIBLIOGRAPHY

Gender Equality, United Nations- un.org
Vishakha Guidelines against sexual harassment at workplace- www.nitc.ac.in
“Protection of Human Rights of Women- International and National Perspective- A study”- Sandip B. Satbhai
Children’s Rights- International Justice Resource Center- ijrcenter.org
Child Rights- History, facts and how to protect them, Worldvision Australia- worldvision.com.au
Children United Nations- un.org
World report 2019: India, Human Rights watch- hrw.org
lawyersclubindia- instagram.com
IBA-India’s new law on the protection of right of transgender persons- ibanet.org