CHENNAI: While the recent Bill moved in the Rajya Sabha by DMK MP ‘Tiruchi’ Siva is being widely welcomed as a step towards betterment of the transgender community, legal experts say doubts still linger as to whether transgenders will be given equal treatment before law as long as Indian Penal Code Section 377 remains in the statute books.
The IPC section, which deals with unnatural sex, is at the crux of contention as it criminalises queer forms of sexual orientation, often ending up as a tool in the hands of law enforcers to harass transgenders.
After a prolonged legal battle, the Supreme Court upheld the Section in December 2013, nullifying an earlier Delhi High Court judgment that declared the Section unconstitutional.
Even as the recent Bill, which will become an Act only after it gets passed in the Lok Sabha, stresses on welfare and social recognition of transgenders, it is silent on the recognition of their sexual orientation or IPC Section 377, which criminalises it. Legal experts say, even if the present Bill is successfully passed in the Lok Sabha and becomes a law, unless the IPC Section 377 is modified to exempt transgenders from its purview, it cannot be said that complete legal recognition is given to them.
“This Bill empahsises that transgenders are a third gender and this will go to a certain extent in recognising their sexual orientation. But unless Section 377 is modified to exempt them, we cannot say that they are given complete recognition by the law since this section implies that they are offenders,” says K Elangovan, an advocate in the Madras High Court.
When queried about this, MP Siva too agreed that the Bill does not touch upon Section 377. “My Bill is only about the welfare, social recognition and reservation for transgenders. Section 377 involves much deeper issues that need wide consultation,” Siva told City Express adding that did not want to comment if the Section must be modified to exempt transgenders.
A few advocates feel that the Bill can be seen as a positive step towards complete recognition of transgenders in the long run.
S Balamurugan, general secretary of the Tamil Nadu unit of the People’s Union for Civil Liberties (PUCL), says it is for the Central government to act in removing the anomaly by redrafting Section 377.
“We can say that transgenders cannot get the compete benefit even if this Bill becomes as Act, unless Section 377 is redrafted. But we can see it as an optimistic step in that direction,” he says.
“Transgenders are first human beings with flesh and blood like us. They must be treated as humans first and this historic Bill paves the way for that. They are being denied the right to live for no fault of theirs. This act will put an end to it,” says P Wilson, former Additional Solicitor General of India, adding that transgenders need not always be seen only through the prism of their sexual orientation.