On August 21, 2020, the Government of India announced the creation of  the National Council for Transgender Persons (“Council”) to work towards the societal acceptance and improvement in the status of the transgender community. The Council is the country’s first step towards the realization of the objectives set out by the Transgender Persons (Protection of Rights) Act, 2019 (“Act”).

This Act was structured on the judgement given by the Supreme Court of India in the case of National Legal Services Authority v. Union of India, which guaranteed legal and constitutional protections for the transgender community. The judgement specifically recognized the right to self-recognition and attributed the same with one of the fundamental rights under the Indian Constitution. Several other legislative and judicial developments in this regard have previously been a part of the discourse.

This article provides an insight into the long leap taken by the Government of India towards acknowledging and honoring the rights of the transgender community on Indian soil. These reforms are the results of ceaseless efforts of every individual who has been advocating for this cause.

The Council is to be presided by the Union Social Justice and Empowerment Minister and comprises members from State, Union Territories and several other ministries, including the National Human Rights Commission and National Commission for Women and States. An astute step was to include five representatives each from the transgender community and the non-governmental organizations working for their welfare.

While the powers of the Council are yet to be notified, as per Section 17 of the Act, the Council is responsible for advising on the formulation of policies, programmes, legislations and projects for transgender persons, monitoring and evaluating the impact of such policies, reviewing and coordinating the activities of different government departments and non-governmental organizations, dealing with matters relevant to transgender persons and addressing the grievances raised by them.

The transgender community in India suffers pitiably from various human right violations. The nominated members of the Council have reported at various platforms, their intended plans to further reforms at the national level. The root of all problems, is stigma and discrimination and accordingly, plans are for increasing advocacy of rights and sensitization regarding the problems of intersex children. Problems like unavailability of public services, inadequate housing and unemployment must be resolved through policies and projects. Furthermore, the transgender community is suffering immensely during COVID-19 and thus, remedial and restorative measures must be taken.

Furthermore, in the long term, the Council can focus on two very important problems by advising the government for adequate legislative reforms. Firstly, in order to deter sexual assaults against transgender persons, the community shall be brought in the purview of the definition of rape which presently includes only women. It is underpinned by the fact that the punishment for sexual abuse prescribed in the Act is significantly lesser than the rigorous punishment prescribed for sexual offences under the Indian Penal Code. Secondly, adequate laws, including decriminalization of prostitution, must be put into place to protect transgender sex workers.

While adding representatives from the transgender community in the Council is promoting discourse, there are concerns on the fairness of the nomination as the procedure was kept absolutely opaque. The present composition of the Council is also being criticized for not having adequate representation and grass-root participation. This is a big concern as some organizations have expressed their intentions about filling a Public Interest Litigation to challenge the constitutionality of the Council on this ground.

Notably, the Act from which the Council derives its powers is under judicial review for alleged constitutional violations and for being regressive as well as ineffective. Furthermore, the Draft Transgender Persons (Protection of Rights) Rules, 2020 which shall clarify that the working of the Council has not been enacted yet and there have been suggestions to postpone the public consultation as the same was initiated during the restrictive conditions of the pandemic.

There has been a rampant and longstanding discrimination against the Transgender community and thus, the slow evolution of the law has only contributed to the evil. India has come a long way since 2013, when the first expert committee to study the transgender problems in the country was constituted. The importance of specialized national institutions for the promotion and protection of human rights has been widely recognized and the recent reforms are an appreciable step. It is especially crucial in the backdrop of multiple human rights violations of the community requiring immediate intervention.

However, it must be ensured that the composition and powers of the Council do not become a hindrance for the object sought to be archived. Although challenges highlighted in the article are limited to policy developments, role of social responses cannot be overemphasized. For only then can we create a society where the transgender individuals can not only survive but thrive too.

Lavanya Pathak and Kunwar Surya Pratap are students of law at National University of Study and Research in Law, India.

Suggested citation: Lavanya Pathak and Kunwar Surya Pratap, The Establishment of the National Council for Transgender Persons in India is a Long Overdue Reform, JURIST – Student Commentary, September 16, 2020 https://www.jurist.org/commentary/2020/09/lavanya-pathak-kunwar-pratap-india-national-council-transgenders/.

This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org