Ondede v. Union of India

September 9, 2021
Case No. WP 11679/2020 Date of Filing 03/06/2020 Status Pending Petitioners Ondede Respondents 1. Union of India- Ministry of Law and Justice 2. Union of India- Ministry of Social Justice and Empowerment 3. State of Karnataka

This is a public interest litigation filed by the Petitioners before the High Court of Karnataka challenging the constitutional validity of Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. The petition has been filed stating that the impugned 2019 Act has been passed but the provisions are in violation of Articles, 14,15, 16 and 21 of the Constitution of India.

 

Section 4 of the impugned Act states that a transgender person shall have a right to be recognized only as transgender. This violates one’s right to gender identity guaranteed under Article 21 as it forces persons to identify only as ‘transgender’ and not as male, female, or any other. Sections 5, 6 and 7 prescribe the procedure for a certificate of identity to be given to a transgender person on the basis of medical documents. This infringes the right to freedom and expression under Article 19. These provisions go against the decision of the Supreme Court in National Legal Services Authority v. Union of India, which held that gender self-determination cannot be based on medical reassignment or any other procedure.

 

Section 12(3) of the Act provides for those transgender persons who are not being taken care of by their families to be placed in rehabilitation centres by the direction of the court. However, no distinction is made between minors and adults. The section also leaves no third option, only giving them the choice of their home or the rehabilitation centre and thus interferes with the decisional autonomy recognized as part of one’s right to privacy and right to life in Justice K.S. Puttaswamy v. Union of India.

 

Section 18 prescribes the maximum punishment for certain types of abuse, including sexual abuse against transgender persons as imprisonment from 6 months to 2 years with a fine. This creates a distinction in punishment for sexual abuse based on gender identity. Similar offences under the Indian Penal Code, 1860, are penalised with three years to life imprisonment. Therefore, the provision violates Article 14 of the Constitution. The Supreme Court, in Navtej Singh Johar v. Union of India also affirmed that a classification that discriminates on the basis of one’s ‘intrinsic or core trait’ such as their gender identity would ipso facto fail the test of equality under Article 14. Further, as the provision fails to define what the offences of ‘sexual abuse’, ‘forced labour’ and ‘bonded labour’ would constitute, it is void for vagueness and arbitrariness.

 

The petition prays for holding the specific sections, i.e. Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the Act as ultra vires, and for a stay on the operation of the Act.

 

The case is listed for final hearing on 19th November 2021.

 

This post was authored by Aashita Sharma, an intern at Centre for Law and Policy Research.

Resources

Case No. WP 11679/2020 Date of Filing 03/06/2020 Status Pending Petitioners Ondede Respondents 1. Union of India- Ministry of Law and Justice 2. Union of India- Ministry of Social Justice and Empowerment 3. State of Karnataka

Resources