Writ Petition Summary: Kajal Mangal MukhiChallenges to Transgender Persons Act
On June 1st 2021, Mx. Kajal Mangal Mukhi, a transgender activist, filed a petition before the Supreme Court challenging the constitutionality of Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 (2019 Act). Section 18 lists the offences against transgender persons, such as forced labour, denial of right to passage, removal of the person from their residence, and threat to life, including mental, physical and sexual abuse. It then stipulates a punishment between six months to two years with a fine.
The petition seeks that the s 18 be struck down, on the grounds that it violates Articles 14, 15 and 21 of the Constitution of India, 1950. Further, the petition seeks the classification of offences and penalties under the 2019 Act to be made in accordance with the Indian Penal Code, 1860, The Bonded Labour System (Abolition) Act, 1976 and Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
Different Crimes, Same Punishment
Section 18 imposes the same punishment (of six months to two years) for all the crimes listed in the provision. The petitioner argues that this violates the principle of proportionality under Article 14, under which the penalty imposed for a crime must be proportional to the gravity of the misconduct.
The petition referred to a report issued by the Departmentally Related Standing Committee for Social Justice and Empowerment which was tasked with assessing the Transgender Persons (Protection of Rights) Bill, 2016. The report stated that offences that involve physical and sexual assualt must be met with higher punishment.
Less Severe Punishment for Crimes Against Transgender Persons
Punishment for crimes under the Indian Penal Code, 1860 (IPC) is more clearly defined as compared to the 2019 Act. Punishment too is far more severe under the IPC. For instance Section 354 of the IPC stipulates the punishment for assault or criminal force to woman with intent to outrage her modesty, between 1-5 years.
Mx. Mukhi argued that the punishment for crimes against women is substantially higher than for transgender persons, violating transgender persons’ right to equality as recognised in NALSA v Union of India. The lack of clear laws and lenient punishments fails to deter persons from committing an offence against transgender persons.
Crimes Against Transgender Persons not Recognised in the Act
Mx. Mukhi argues that the 2019 Act lists general crimes against persons in s 18. It does not specifically assess the crimes committed against transgender persons.
For instance, it does not recognise violence and discrimination in educational institutions, healthcare institutions, police stations, jails, shelter and remand homes. The 2019 Act also fails to mention abortion of intersex foetuses, and forced surgical assignment of sex of intersex infants.