Proposed Amendments to the Transgender Persons (Protection of Rights) Act, 2019

This Proposed Amendment has been Authored by Ajay Pal and Rahil Setia, Students at Army Institute of Law, Mohali. It was submitted as an entry to Kanooniyat Amendment Writing Competition.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) (AMENDMENT) BILL, 2021

A

BILL

to further amend The Transgender Persons (Protection of Rights) Act, 2019.

BE it enacted by Parliament in the Seventy-Second Year of the Republic of India as follows: —

Proposed Amendment: In the Transgender Persons (Protection of Rights) Act, 2019 (hereinbefore and hereinafter referred to as the Principal Act), in the long title, for the words and figures “Persons (Protection of Rights)”, the word “Rights”, shall be substituted.

Reason for Amendment:

The original title of the act has been replaced as the word Protection of Rights has a limiting effect upon the legislation. It suggests that the scope of the legislation is to merely protect the rights of Transgender Persons. The updated title meanwhile, takes a broader approach, as it is indicative of the fact, that the act is concerned not only with the protection of rights of the Transgender persons, but also confers certain rights upon them. Further the change of name, brings the name closer the Rights of Transgender Persons Bill, 2014 on the matter.

Proposed Amendment: In section 1 of the principal Act, for sub-section (1), the following sub-section shall be substituted, namely: —

“(1) This Act may be called the Transgender Persons Rights Act, 2019.”

Reason for Amendment:

Necessary, Reasonable and Logical consequence of the change in the title of the Legislation.

Amendment – New Provision

Insertion of new clause (aa): In section 2 of the principal Act, after clause (a), the following clause shall be inserted, namely: —

“(aa) ‘cisgender’ means a person whose gender identity corresponds with the sex the person had or was identified as having at birth.

Provided that, for purpose of interpretation of the act, the meaning of the term cisgender shall be construed as a non-transgender person.

Reason for Amendment:

The act while being concerned with the welfare of the transgender community cannot exist in vacuum in the society and hence must incorporate progressive expressions so much so that identity of a non-transgender person is expressed in a coherent and inclusive manner.

Amendment – New Provision

Insertion of new clause (ab): In section 2 of the principal Act, after proposed clause (aa), the following clause shall be inserted, namely: —

“(ab) ‘discrimination’ means any distinction, exclusion or restriction on the basis of gender identity and expression which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all rights or privileges otherwise available to cisgenders under the Constitution or any other law for the time being in force, in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including the denial of right of residence;

Reason for Amendment:

The Transgender Community in India faces ostracization and is one of the most marginalized, stigmatized, oppressed and excluded sections of the society. This fact has been acknowledged by the Hon’ble Supreme Court in its landmark verdict in National Legal Services Authority v. Union of India (2014) and is evident from the conclusions of the Expert Committee on Issues Relating to Transgender” constituted under the Ministry of Social Justice and Empowerment and the several socio-economic parameters reported by the appropriate governments at different intervals. It is quite clear that the objective of any legislation pertaining to the transgender community must always be to eliminate discrimination against them in every form, so as to achieve the larger objectives of establishing a Social Welfare state based upon the principles of Freedom, Equality, Justice and Fraternity.

That being said, while no exhaustive definition of the term discrimination is possible, qua the transgender community, any legislation drafted for their welfare, must at least inclusive definition of the term discrimination, taking into account the political, economic, social, cultural, civil aspects of the same. The aforesaid definition is in line with the clause 2 (c) of the Rights of Transgender Persons Bill, 2014. Hence, the insertion of clause 2 (ab) is absolutely imperative, and a definition for discrimination has been added which is to be read with Section 3 of the Act, titled ‘Prohibition against discrimination’.

Clause (g): “National Council” means the National Council for Transgender Persons established under section 16;

Proposed Amendment: In section 2 of the principal Act, for clause (g), the following clause shall be substituted, namely: —

“(g) ‘National Commission’ means the National Commission for Transgender Persons constituted under section 16 of this Act.”

Reason for Amendment:

As a matter of public policy, several Constitutional and statutory bodies with the nomenclature ‘commission’ exist in India, such as the National Commission for Women, National Commission for Scheduled Castes, National Commission for Scheduled Tribes, National Commission for Backward Classes, National Commission for Minorities and National Human Rights Commission etc. The Transgender community, being a marginalized community, requires a similar body to examine and report upon the welfare of the community. Hence, it is proposed that the National Council be replaced by National Commission, so in order to bring clarity and consistency in its mandate and area of operations, and to ensure that it is in no way inferior in autonomy and significance to other bodies.    

Amendment – New Provision

Insertion of new clause (ja): In section 2 of the principal Act, after clause (j), the following clause shall be inserted, namely: —

“(ja) ‘self-perceived gender identity’ means the right, subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification as provided under section 4A, of a person to identify oneself as a gender of one’s own determination;

Reason for amendment:

Transgender Persons and the Transgender Community-at-large have always treated the question of gender identity at the core of their desire to live a genuine, authentic, comfortable and dignified life. While mere sexual orientation is not sufficient enough to encapsulate all the issues revolving around transgender community, the freedom of a person to determine their self-perceived gender identity is an implied constitutional guarantee under Articles 14[1], 19[2] and 21[3] in Part III of the Constitution of India. Hence a broad-based definition of the term has been included in line with Section 4(2) of the Act, with a clear set of conditions being imposed only in the matter of appropriation of economic, reservation or such other benefits arising out of such identification, necessary in the interest of public policy.

Amendment – New Provision

Insertion of new clause (jb): In section 2 of the principal Act, after the proposed clause (ja), the following clause shall be inserted, namely: —

(jb) ‘State Commission’ means a State Commission for Transgender Persons constituted under section 17 of this Act;”

Reason for Amendment:

The Constitution of India, has established India as a Union of States. The principle of Federalism is part of the basic structure of the Constitution. The subject matters for legislation have been divided into 3 lists (Article 245[4] and 246[5], read with 7^th Schedule to the Constitution). The transgender persons being equal citizens of India, and being spread across the areas governed by the State Governments, must receive due consideration by the State Governments. Hence in order to protect their interests and deal with issues pertaining to the community, it is proposed that a State Commission for Transgender Persons should be set up in each State in India.

Amendment – New Provision

Insertion of new clause (ac): In section 2 of the principal Act, after the proposed clause 2 (ab), the following clause shall be inserted, namely: —

(ac) ‘court of competent jurisdiction’ shall mean, for the purposes of this Act, the National Commission as constituted under section 16 or the State Commission as constituted under section 17, as the facts and circumstances of, and parties to, the case, may determine;

Provided that, in any case, where the party to the adjudication is the Central Government, the court of competent jurisdiction shall be the National Commission, whose decision, subject only to judicial review on the ground of error of law, shall be final.

Provided further that, in case of any dispute between parties from two different states, the court of competent jurisdiction shall be determined by the National Commission, on an application made in this behalf by either of the parties or any other person or organization on behalf of the parties and the determination by the National Commission shall be final.

Provided also that, the National Commission shall dispose of the application filed under second proviso to clause (ac) of section 2, as expeditiously as possible.”

Reason for Amendment:

Necessary, Reasonable and Logical consequence following the setting up of National and State Commissions under the Act. Since both set of bodies are being vested with quasi-judicial powers, the meaning of the term Court of Competent jurisdiction (as used in the statute) has been clarified, alongside their jurisdiction as a principle of sound legislative drafting. Further, the legislative intent on having expeditious disposal of applications under the act has been made explicit and clear.

Clause (k): “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.

Proposed Amendment: In section 2 of the principal Act, in clause (k), for the word “means”, the words and expressions “includes but is not limited to” shall be substituted.

In section 2 of the principal Act, under clause (k), the following proviso shall be inserted, namely: —

“Provided that, the right of self-perceived gender identity of a person shall not be affected by anything contained under this Act or in any other law for the time being in force, except as otherwise expressly provided under this Act.”

Reason for Amendment:

Section 2(k) of the Principal Act defines the term transgender person in a narrow and restricted manner. The definition is exhaustive in nature, and is likely to exclude several individuals from the definition. Hence the expression “includes but is not limited to” has been added in place of means. Further, the proviso has been added to ensure that the vital right of self-perceived gender identity is not infringed or limited in any manner whatsoever, except in accordance with procedure established by law i.e., limitations imposed by the act itself.

Amendment – New Provision

“3A. Other rights and privileges not affected by the Act: “Subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification as provided under section 4A, the guarantee in this Act, of certain rights and privileges, shall not be construed as denying the existence of any other rights or privileges, as are otherwise available to cisgenders under the Constitution or any other law for the time being in force.”

Reason for Amendment:

The Act is the only specific legislation enacted for the protection of rights of the transgender community. As such it is important to clarify that while the community has been granted certain rights and privileges, the same are in addition to other rights/privileges available to cisgenders under the Constitution and/or other laws of the time being in force and hence except in accordance to the limitations contained under the proposed Section 4A (in matters pertaining to reservation) the transgenders shall not be denied the existence of rights available to cisgenders in any manner whatsoever.

Recognition of identity of transgender person. — (1) A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act.

(2) A person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.

Proposed Amendment: For section 4 of the principal Act, the following section shall be substituted, namely: —

“4. Recognition of identity of transgender person. — (1) A transgender person shall have a right to be recognized on the basis of one’s self-perceived gender identity as defined under clause (ja) of section 2.

(2) Recognition of identity as provided under sub-section (1) shall not affect the rights or privileges of a transgender person as are otherwise available to cisgenders under the Constitution or any other law for the time being in force and as are provided under section 3A, sub-section (2) of section 4 and sub-section (7) of section 8.

(3) Subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification as provided under section 4A, and without prejudice to anything contained under sub-section (2), the recognition of identity as provided under sub-section (1) shall entitle the transgender person to such exclusive rights or privileges as are provided for under sub-section (8) of section 8 of this Act.

(4) Recognition of identity as provided under sub-section (1) shall be deemed to be a sufficient proof of recognition of one’s identity as a transgender person.”

Reason for Amendment:

The Hon’ble Supreme Court in its verdict in NALSA v. Union of India[6] has recognised the right to self-identification for a transgender person. The said right has been incorporated under Section 4 of the Act. However, the Principal act doesn’t incorporate a definition of the term self-perceived gender identity. The proposed amendment has defined the term under clause (ja) of section 2 and hence the section needs amendment. Further, Sub-sections have been proposed to be added to bring greater clarity on the subject. Crucially, Recognition of identity as provided under sub-section (1) shall be deemed to be a sufficient proof of recognition of one’s identity as a transgender person, thus liberalizing the provision considerably in line with the previously established judicial precedents. However, the limitations imposed by conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification have been retained and specified as a matter of public policy.

Amendment – New Provision

“4A. Limitations on the right to self-perceived gender identity. — Notwithstanding anything contained in this Act and subject only to the order or decision of a court of competent jurisdiction to the contrary (made after recording reasons in writing), the right to self-perceived gender identity of a person shall only be limited, on the grounds and to the extent, as have been enumerated herein, namely: —

(a) if a person, after recognizing oneself as a transgender person, appropriates, once or more than once, the benefit of reservation in an educational institution (except unaided minority educational institutions), such a person (who has exercised his right of self-perceived gender identity) shall be barred from reversing such a recognition (so as to now to recognise oneself again as a gender identified with, prior to such an exercise of right of self-perceived gender identity) for a period of five years from the date of appropriation of such reservation benefit;

(b) if a person, after recognizing oneself as a transgender person, appropriates, once or more than once, the benefit of reservation in public employment, such a person (who has exercised his right of self-perceived gender identity) shall be barred from reversing such a recognition (so as to now to recognise oneself again as a gender identified with, prior to such an exercise of right of self-perceived gender identity) for a period of ten years from the date of appropriation of such reservation benefit;

(c) if a person, after recognizing oneself as a transgender person, appropriates, once or more than once, the benefit of reservation both in educational institution and in public employment, such a person (who has exercised his right of self-perceived gender identity) shall be barred from reversing such a recognition (so as to now to recognise oneself again as a gender identified with, prior to such an exercise of right of self-perceived gender identity) for a period of fifteen years from the date of appropriation of such reservation benefit in a field where benefit was appropriated later;

(d) if a person, after recognizing oneself as a transgender person, appropriates, once or more than once, the benefit of any welfare scheme as provided under sub-section (8) of section 8, such a person (who has exercised his right of self-perceived gender identity) shall be barred from reversing such a recognition (so as to now to recognise oneself again as a gender identified with, prior to such an exercise of right of self-perceived gender identity) for a period of three years from the date of appropriation of such a benefit and in case of multiple benefits from multiple schemes, the period of three years shall be computed from the date when the last benefit was appropriated;

(e) if a person, after recognizing oneself as a transgender person, receives a special treatment with reference to right or privileges as provided under section 3A, sub-section (2) of section 4 and sub-section (7) of section 8, such a person (who has exercised his right of self-perceived gender identity) shall be barred from reversing such a recognition (so as to now to recognise oneself again as a gender identified with, prior to such an exercise of right of self-perceived gender identity) for a period of two years from the date of reception of such a special treatment; and

(f) without prejudice to anything and in addition to periods, contained under clauses (a), (b), (c), (d) and (e), if a person, after recognizing oneself as a transgender person, receives any other benefit, which such person shall not have been entitled to receive but for such recognition as a transgender, then, such a person shall be barred from reversing such a recognition (so as to now to recognise oneself again as a gender identified with, prior to such an exercise of right of self-perceived gender identity) for a period of one year from the date of reception of such a benefit.”

Reason for Amendment:

While the Right to Self-Identification has been recognized and protected under Section 4, the same cannot be an absolute right as a matter of public policy. Therefore, the grounds and extent to which the gender identity of a person shall be limited are required to be enumerated and for the same Section 4A is proposed to be added. The proposed section imposes certain time period-based restrictions upon the switching one’s gender identity/recognition for availing the benefit of reservation in educational institutions and public employment only to reverse such a recognition subsequently after claiming the benefit. Thus, section is necessary to ensure that there is no abuse of law, and a transgender person’s Right to Self-Identification doesn’t jeopardize or harms the rights of other transgender and cisgender persons under Article 16[7] of the Constitution.

Application for certificate of identity. —A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed:

Provided that in the case of a minor child, such application shall be made by a parent or guardian of such child.

Proposed Amendment: Section 5 of the principal Act shall be omitted.

Reason for Amendment:

Right to Self-Identification for Transgender Persons has been recognised in NALSA v. Union of India[8] judgment. The said right has been incorporated under Section 4 of the Principal Act and expanded upon by this Amendment Act. Section 5 of the Principal Act is manifestly discriminatory. It violates Article 14[9], 15[10], 16[11], 19[12] and 21[13] of the Constitution, in imposing limitations, curtailing freedom, and right to a dignified life on the basis of sex (upon transgender persons vis-à-vis the cisgender persons). Requisite limitations for having certificates in matters of reservation in educational institutions and public employment have been retained by the proposed Section 4A as a matter of public interest and public policy. Therefore, it is proposed that Section 5 be omitted.  

Issue of certificate of identity. — (1) The District Magistrate shall issue to the applicant under section 5, a certificate of identity as transgender person after following such procedure and in such form and manner, within such time, as may be prescribed indicating the gender of such person as transgender.

(2) The gender of transgender person shall be recorded in all official documents in accordance with certificate issued under sub-section (1).

(3) A certificate issued to a person under sub-section (1) shall confer rights and be a proof of recognition of his identity as a transgender person.

Proposed Amendment: Section 6 of the principal Act shall be omitted.

Reason for Amendment:

Necessary, Reasonable and Logical consequence following the omission of Section 5 of the Principal Act. Some requisite provisions have been retained in form of proposed Section 4A, regarding the matter of reservation in educational institutions and public employment. Thus, this Section has been rendered inconsequential and thus should be omitted.

Change in gender. — (1) After the issue of a certificate under sub-section (1) of section 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed.

(2) The District Magistrate shall, on receipt of an application along with the certificate issued by the Medical Superintendent or Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating change in gender in such form and manner and within such time, as may be prescribed.

(3) The person who has been issued a certificate of identity under section 6 or a revised certificate under sub-section (2) shall be entitled to change the first name in the birth certificate and all other official documents relating to the identity of such person:

Provided that such change in gender and the issue of revised certificate under sub-section (2) shall not affect the rights and entitlements of such person under this Act.

Proposed Amendment: For section 7 of the principal Act, the following section shall be substituted, namely: —

“7. Changing self-perceived gender identity. — (1) Subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification as provided under section 4A, the right of a transgender person to bring a change to one’s self-perceived gender identity shall not be infringed.

(2) Subject to sub-section (1), the right of a transgender person to change the first name in the birth certificate or all other official documents relating to the identity of such person, shall not be infringed.”

Reason for Amendment:

Section 7 of the Principal Act has been rendered inconsequential following the omission of Sections 5 and 6 by this Amendment Act. Thus, it should be substituted by a new section proposed by the Amendment Act, which reiterates that the right of a transgender person changes their self-perceived gender identity shall not be infringed. However, the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification must be complied with. The same is necessary to be specified in the interest of public interest and public policy.

Obligation of appropriate Government. — (1) The appropriate Government shall take steps to secure full and effective participation of transgender persons and their inclusion in society.

(2) The appropriate Government shall take such welfare measures as may be prescribed to protect the rights and interests of transgender persons, and facilitate their access to welfare schemes framed by that Government.

(3) The appropriate Government shall formulate welfare schemes and programmes which are transgender sensitive, non-stigmatizing and non-discriminatory.

(4) The appropriate Government shall take steps for the rescue, protection and rehabilitation of transgender persons to address the needs of such persons.

(5) The appropriate Government shall take appropriate measures to promote and protect the right of transgender persons to participate in cultural and recreational activities.

Proposed Amendments: In section 8 of the principal Act, before sub-section (1), the following words and figures shall be inserted, namely: —

“Subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification as provided under section 4A and without prejudice to anything contained under section 3A and sub-section (2) of section 4 of this Act: —”

In section 8 of the principal Act, under sub-section (1), for the words and expressions “The appropriate Government”, the words and figures “Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the appropriate Government” shall be substituted.

In section 8 of the principal Act, sub-section (2) shall be omitted.

In section 8 of the principal Act, under sub-section (3), for the words and expressions “The appropriate Government”, the words and figures “Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the appropriate Government” shall be substituted.

In section 8 of the principal Act, under sub-section (4), for the words and expressions “The appropriate Government”, the words and figures “Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the appropriate Government” shall be substituted.

In section 8 of the principal Act, under sub-section (5), for the words and expressions “The appropriate Government”, the words and figures “Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the appropriate Government” shall be substituted.

In section 8 of the principal Act, after sub-section (5), the following sub-sections shall be inserted, namely: —

“(6) Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the appropriate Government shall take appropriate measures to provide for reservation of seats for transgender persons in educational institutions (except unaided minority educational institutions) or public employment or both and facilitate their equal access to various welfare schemes of the appropriate Government.

(7) Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the appropriate Government shall take appropriate measures to prevent infringement of rights or privileges as are provided under section 3A and sub-section (2) of section 4 of this Act,

(8) Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021 and without prejudice to anything contained under sub-section (6) and sub-section (7), the appropriate Government shall take appropriate measures to formulate such exclusive welfare schemes for transgender persons as shall be prescribed by the appropriate Government.”

Reason for Amendment:

The proposed amendment to sub-section (1), by addition of certain words will clarify and specify the role and obligation of the appropriate government while exercising its power of delegated legislation. Thus, Government’s power is subject only provisions of the proposed section 4A and without prejudice to Section 3A and Section 4 (2) of the Act.

The proposed amendment to sub-section (1), inserting a time frame will ensure that the appropriate government takes steps to secure full and effective participation of transgender persons and their inclusion in society in a time bound manner.

The proposed amendments to sub-sections (3), (4) and (5) will ensure that the appropriate government will formulate welfare schemes and programmes (which are transgender sensitive, non-stigmatizing and non-discriminatory), take steps and measures for rescue, protection and rehabilitation of transgender persons, and promote/protect their right to participate in cultural and recreational activity in a time bound and effective manner.

The three proposed sub-sections i.e., sub-sections (6),(7) and (8) will ensure that the appropriate government takes suitable and appropriate measures by formulating schemes for reservations for transgender persons in educational institutions and public employment, prevention of infringement of transgender person’s rights and privileges and welfare schemes for their benefit in a time bound and effective manner.

Section 8 (2) of the Principal Act has been omitted following the addition of sub-sections (6), (7) and (8) as they comprehensively describe the exclusive/general measures and steps to be taken by the appropriate government for the welfare of transgender persons, whereas sub-section (2) was rendered irrelevant following these additions due its narrow language.  

Non-discrimination in employment. —No establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues.

Proposed Amendment: In section 9 of the principal Act, after the words and expressions “other related issues.”, the words and figures “or else shall be liable to a penalty as provided for under Section 18A.” shall be added.

Reason for Amendment:

The Amendment Act seeks to include a new set of penalties in form of minimum imprisonment of two years which may extending up to five years and with fine for violation of Section 9. Thus, the Amendment Act proposes to amend Section 9 of the Principal Act to achieve a deterrent effect. Thus, this will give more teeth to the legislation. 

Grievance redressal mechanism. —Every establishment shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.

Proposed Amendments:

In section 11 of the principal Act, before the words and expressions “Every establishment shall”, the words and figures “Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021” shall be added

In section 11 of the principal Act, for the word “Every”, the word “every” shall be substituted.

Reason for Amendments:

Section 11 of the Principal Act refers to the establishment of a Grievance Redressal Mechanism for hearing to deal with the complaints relating to violation of the provisions of the Act, but doesn’t leave specify any time frame whatsoever for setting up such an entity/appointment of complaint officer. Hence, the Amendment Act proposes to amend Section 11 by incorporating a deadline of 2 years from the date of the commencement of the Amendment Act to ensure actual and effective implementation of the said Section. Further, the word “Every” has been substituted for “ever” for removing grammatical inconsistencies in the Principal Act.

Right of residence. — (1) No child shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such child.

(2) Every transgender person shall have—

(a) a right to reside in the household where parent or immediate family members reside;

(b) a right not to be excluded from such household or any part thereof; and

(c) a right to enjoy and use the facilities of such household in a non-discriminatory manner.

(3) Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation Centre.

Proposed Amendments: In section 12 of the Principal Act, under sub-section (1), for the words and expressions “order of a competent court, in the interest of such child.” the words and expressions “order of a court of competent jurisdiction, made in accordance with the provisions of this Act and after taking into consideration the welfare of such a child.” shall be substituted.

In section 12 of the principal Act, under sub-section (3), for the words and expressions “transgender, the competent court shall by an order direct such person to be placed in rehabilitation Centre.”, the words and expressions “transgender and after making such a declaration, along with the reasons, in writing, before a court of competent jurisdiction and thereafter, such a court of competent jurisdiction may, for reasons to be recorded in writing, direct such a person to be placed in an extended family or in a foster family, ready and willing to take care of such a transgender person or within the community in a family setting or in a rehabilitation center.”

In section 12 of the principal Act, under sub-section (3), the following proviso shall be inserted, namely: —

“Provided that, nothing in this sub-section shall be construed to affect the rights or privileges, as are provided under section 8, of a transgender person.”

Reason for Amendments:

In Githa Hariharan v. Reserve Bank of India[14] (1999), the Hon’ble Supreme Court has held that welfare of the child is the paramount consideration in appointment of a guardian under Hindu Minority and Guardianship Act, 1956. This has been recognised as an acceptable standard in a catena of matters that involve custody etc. of minors. Therefore, in order to ensure that similar standards are applied for both cisgender and transgender children, the Amendment Act proposes that Section 12 of the Principal Act is amended to ensure that an order by a Court of Competent Jurisdiction separating a child from their parents/immediate family account of being transgender is made after taking into consideration the welfare of such a child. Further to ensure that the order directing a transgender person to be placed in rehabilitation Centre, is based upon proper and sound reasoning, it is proposed that transgender’s parents or a member of immediate family who are/is not able to take care of them, make a written declaration before the court of competent jurisdiction and the reasons for an order of such court are recorded in writing as well. Further, the proposed proviso will ensure that while an aforementioned order is made, the rights of a transgender person under Section 8 of the Principal Act are protected.

Obligation of educational institutions to provide inclusive education to transgender persons. — Every educational institution funded or recognised by the appropriate Government shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination on an equal basis with others.

Proposed Amendment: For section 13 of the principal Act, the following section shall be substituted, namely: —

“13. Obligation of educational institutions to provide for reservation and inclusive education to transgender persons. — Without prejudice to anything contained under section 8 and subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification as provided under section 4A, every educational institution, except for an unaided minority educational institution, shall provide for reservation, inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination on an equal basis with other persons.”

Reason for Amendment:

Section 13 of the Principal Act is proposed to be substituted by Section 13 of the Principal Act to impose an obligation upon the Educational Institutions to provide transgender persons the benefits of reservation in matters of Education available under the proposed Section 4A. Pursuant to Article 26[15] of the Constitution, unaided minority educational institution has been excluded from this obligation. The amendment is a necessary consequence of the Reservation for Transgender Persons in Educational Institutions, and is similar to the obligation imposed by Section 21 of the Rights of Transgender Persons Bill, 2014. However, the obligation to of Educational Institutions to provide inclusive education to transgender persons remains unchanged and has been incorporated in proposed amendment of Section 13.   

NATIONAL COUNCIL FOR TRANSGENDER PERSONS

Proposed Amendment: In the principal Act, in Chapter VII, for the Chapter heading, the following Chapter heading shall be substituted, namely: —

“NATIONAL AND STATE COMMISSIONS FOR TRANSGENDER PERSONS”

Reason for Amendment:

Proposed amendment of Section 2(g) by this Amendment Act has replaced National Council for Transgender Persons with National Commission for Transgender Persons, which is to be constituted under an amended Section 16. Section 2 (jb) has defined the term State Commission for Transgender Persons which is proposed to be constituted under an amended Section 17 by the Amendment Act. Hence, as a logical and necessary consequence, it is proposed that the Heading of Chapter VII of the Principal Act is suitably modified.

National Council for Transgender Persons. — (1) The Central Government shall by notification constitute a National Council for Transgender Persons to exercise the powers conferred on, and to perform the functions assigned to it, under this Act.

(2) The National Council shall consist of—

(a) the Union Minister in-charge of the Ministry of Social Justice and Empowerment, Chairperson, ex officio;

(b) the Minister of State, in-charge of the Ministry of Social Justice and Empowerment in the Government, Vice-Chairperson, ex officio;

(c) Secretary to the Government of India in-charge of the Ministry of Social Justice and Empowerment, Member, ex officio;

(d) one representative each from the Ministries of Health and Family Welfare, Home Affairs, Housing and Urban Affairs, Minority Affairs, Human Resources Development, Rural Development, Labour and Employment and Departments of Legal Affairs, Pensions and Pensioners Welfare and National Institute for Transforming India Aayog, not below the rank of Joint Secretaries to the Government of India, Members, ex officio; 

(e) one representative each from the National Human Rights Commission and National Commission for Women, not below the rank of Joint Secretaries to the Government of India, Members, ex officio;

(f) representatives of the State Governments and Union territories by rotation, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government, Members, ex officio;

(g) five representatives of transgender community, by rotation, from the State Governments and Union territories, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government, Members;

(h) five experts, to represent non-governmental organisations or associations, working for the welfare of transgender persons, to be nominated by the Central Government, Members; and

(i) Joint Secretary to the Government of India in the Ministry of Social Justice and Empowerment dealing with the welfare of the transgender persons, Member Secretary, ex officio.

(3) A Member of National Council, other than ex officio member, shall hold office for a term of three years from the date of his nomination

Proposed Amendment: For section 16 of the principal Act, the following section shall be substituted, namely: —

“16. Constitution of National Commission for Transgender Persons. — (1) Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the Central Government shall, by notification, constitute an independent regulatory body at the national level, to be known as the National Commission for Transgender Persons, to exercise the such powers and to perform such functions (to be in addition to, and not inconsistent with, the ones expressly provided for under section 16B) as shall be prescribed by the Central Government.

(2) The Commission shall consist of the following members, namely, —

(a) a Chairperson, who is an eminent person with a documented record of service in the field of transgender rights and rehabilitation; and

(b) six members, of whom not less than three shall, subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification, be transgender persons of eminent stature and the remaining three members must have a documented record of service in the fields of rehabilitation, advocacy, law, in relation to transgenders.

(c) The Chairperson shall hold the office for a term of not more than three years or till the age of sixty-seven years, whichever is earlier, and shall not be eligible for re-election.

(d) The members shall hold the office for a term of not more than two years or till the age of sixty-five years, whichever is earlier, and shall not be eligible for re-election.

(3) The Chairperson and the members shall be appointed by the Central Government on the binding recommendations of an independent Selection Committee with such composition as may be prescribed.

(4) Where, in the opinion of the Central Government, any existing body is competent to discharge the powers and functions of the National Commission, as envisaged under this Act, then the Central Government may notify such existing body to act as the National Commission under this Act.

(5) The nature, constitution, powers (to be in addition to, and not inconsistent with, the ones expressly provided for under section 16A), terms and conditions of service and various other aspects regulating the working of the National Commission, shall be such as shall be prescribed by the Central Government.”

Reason for Amendment:

The proposed National Commission for Transgender Persons shall be an independent regulatory body at the national level exercising specified powers and performing specified functions. To bring clarity and consistency to its mandate as an independent body and to ensure that it retains its autonomous character, a change to Section 16 of the Principal Act is proposed. Section 16 of the Principal Act, whilst providing a useful composition for a National Council is completely inadequate for a National Council. Hence the provisions of Section 26 of the Rights of Transgender Persons Bill, 2014 have been reintroduced as a part of Amendment Act. This allow for largely independent appointees, and not members acting in their Ex-Officio capacity as Ministers in or Bureaucrats to Union and/or State Government to be the member of the aforesaid commission. This is further in line with the reasons for amendment of Section 2(g) of the Principal Act.

Amendment – New Provision

“16A. Power of National Commission to conduct inquiry, conduct search and seizure, issuing of directions, joinder of trial. — Power of the National Commission to conduct inquiry, conduct search and seizure, issuing of directions, joinder of trial, for the prosecution of offence under the Act shall be in the manner as set out in the Code of Criminal Procedure, 1973.

16B. Other powers and functions of the National Commission. — The Commission shall perform all or any of the following functions, namely: —

(a)  within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, identify, suo-moto, or on a representation received, provisions of any laws, policies, programmes and procedures, which are inconsistent with anything contained under this Act, and to make binding recommendations regarding corrective measures to be undertaken;

(b) review and coordinate the activities of all Departments of the Central Government and other non-Governmental Organizations dealing with matters pertaining to transgender persons and to make binding recommendations regarding corrective measures to be undertaken;

(c) inquire and adjudicate (subject to the principles of natural justice or judicial review on the ground of error of law), either suo-moto or on a representation made by an affected transgender person or any person or organization on such transgender person’s behalf, with respect to deprivation of such transgender person’s rights or privileges as provided for under this Act or the Constitution or any other law for the time being in force and to make binding recommendations regarding corrective measures to be undertaken or a binding adjudication (subject to the principles of natural justice or judicial review on the ground of error of law), as the case maybe;

(d) without prejudice to the competency of the National Commission to make binding recommendations or binding adjudication (subject to the principles of natural justice or judicial review on the ground of error of law) or both, such other functions as shall be prescribed by the Central Government.

Explanation. — For the removal of doubts, it is hereby expressly provided that any recommendations or adjudication (subject to the principles of natural justice or judicial review on the ground of error of law) made, or to be made, by the National Commission shall be binding on the Central Government, which the Central Government shall implement within a period of not more than one year from the date of supply of the notification containing recommendations or the certified copy of the adjudicatory order (only if the Central Government is a party to the adjudication), as the case maybe.”

Reason for Amendment:

The proposed Section 16A vests quasi-judicial powers of a Criminal Court under the Code of Criminal Procedure, 1973 upon the National Commission in order to enable it exercise as a proper adjudicatory body while performing its functions under the proposed Section 16B. These powers are similar to the powers available to the National Human Rights Commission under Chapter III of the Protection of Human Rights Act, 1993[16] and to the proposed National Commission under Chapters VII and VIII of the Rights of Transgender Persons Bill, 2014. Meanwhile Section 16B contains the provisions regarding the powers and functions of the National Commission. The National Commission has been given the power to make binding recommendations and adjudications to ensure that it can take prompt and corrective measures regarding the provisions of any actions, omissions, laws, policies, programmes and procedures, which are inconsistent with anything contained under the Principal and Amended Act or involve deprivation of a transgender person’s rights or privileges. The National Commission primarily has adjudicatory and recommendatory functions, although the Central Government has been given the power to specify more functions from time to time as a form of delegated legislation.

Functions of Council. —The National Council shall perform the following functions, namely: — (a) to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons;

(b) to monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons;

(c) to review and coordinate the activities of all the departments of Government and other Governmental and non-Governmental Organisations which are dealing with matters relating to transgender persons;

(d) to redress the grievances of transgender persons; and

(e) to perform such other functions as may be prescribed by the Central Government.

Proposed Amendment: For section 17 of the principal Act, the following section shall be substituted, namely: —

“17. Constitution of State Commissions for Transgender Persons. — (1) Within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, the concerned State Government shall, by notification, constitute an independent regulatory body at the state level, to be known as the ‘name of the concerned state’ State Commission for Transgender Persons, to exercise the such powers and to perform such functions (to be in addition to, and not inconsistent with, the ones expressly provided for under section 17B) as shall be prescribed by the State Government.

(2) The Commission shall consist of the following members, namely, —

(a) a Chairperson, who is an eminent person with a documented record of service in the field of transgender rights and rehabilitation; and

(b) six members, of whom not less than three shall, subject only to the conditions governing the appropriation of economic, reservation or such other benefits arising out of such identification, be transgender persons of eminent stature and the remaining three members must have a documented record of service in the fields of rehabilitation, advocacy, law, in relation to transgenders.

(c) The Chairperson shall hold the office for a term of not more than three years or till the age of sixty-five years, whichever is earlier, and shall not be eligible for re-election.

(d) The members shall hold the office for a term of not more than two years or till the age of sixty-two years, whichever is earlier, and shall not be eligible for re-election.

(3) The Chairperson and the members shall be appointed by the State Government on the binding recommendations of an independent State Selection Committee with such composition as may be prescribed.

(4) Where, in the opinion of the State Government, any existing body is competent to discharge the powers and functions of the State Commission, as envisaged under this Act, then the Central Government may notify such existing body to act as the State Commission under this Act.

(5) The nature, constitution, powers (to be in addition to, and not inconsistent with, the ones expressly provided for under section 17A), terms and conditions of service and various other aspects regulating the working of the State Commission, shall be such as shall be prescribed by the State Government.”

Reason for Amendment:

Section 17 of the Principal Act dealt with Functions of National Council for Transgender Persons. Since the Amendment Act proposes to replace it with the National Commission for Transgender Persons, the original Section 17 has been rendered irrelevant. Meanwhile as the reasoning for the proposed Section 2 (jb) suggests, the Transgender privileges, rights and issues are required to be protected and handled at State Level, and the same is to be dealt with the setting up of a State Commission for Transgender Persons in every State in India. The composition of the proposed State Commissions has been kept akin to Section 38 in Chapter VII of the Rights of Transgender Persons Bill, 2014, which is the only other proposed legislative measure on the subject of State Commissions for Transgender Persons.

Amendment – New Provision

“17A. Power of State Commission to conduct inquiry, conduct search and seizure, issuing of directions, joinder of trial. — Power of the State Commission to conduct inquiry, conduct search and seizure, issuing of directions, joinder of trial, for the prosecution of offence under the Act shall be in the manner as set out in the Code of Criminal Procedure, 1973.

17B. Other powers and functions of the State Commission. — The Commission shall perform all or any of the following functions, namely: —

(a)  within a period of two years from the date of the commencement of the Transgender Persons (Protection of Rights) (Amendment) Act, 2021, identify, suo-moto, or on a representation received, provisions of any laws, policies, programmes and procedures, which are inconsistent with anything contained under this Act, and to make binding recommendations regarding corrective measures to be undertaken;

(b) review and coordinate the activities of all Departments of the State Government and other non-Governmental Organizations dealing with matters pertaining to transgender persons and to make binding recommendations regarding corrective measures to be undertaken;

(c) inquire and adjudicate (subject to the principles of natural justice or judicial review on the ground of error of law), either suo-moto or on a representation made by an affected transgender person or any person or organization on such transgender person’s behalf, with respect to deprivation of such transgender person’s rights or privileges as provided for under this Act or the Constitution or any other law for the time being in force and to make binding recommendations regarding corrective measures to be undertaken or a binding adjudication (subject to the principles of natural justice or judicial review on the ground of error of law), as the case maybe;

(d) without prejudice to the competency of the State Commission to make binding recommendations or binding adjudication (subject to the principles of natural justice or judicial review on the ground of error of law) or both, such other functions as shall be prescribed by the State Government.

Explanation. — For the removal of doubts, it is hereby expressly provided that any recommendations or adjudication (subject to the principles of natural justice or judicial review on the ground of error of law) made, or to be made, by the State Commission shall be binding on the State Government, which the State Government shall implement within a period of not more than one year from the date of supply of the notification containing recommendations or the certified copy of the adjudicatory order (only if the State Government is a party to the adjudication), as the case maybe.

17C. Appeal to the National Commission. — Any person aggrieved by any order or decision of the State Commission, may prefer an appeal, either on fact or law or both, to the National Commission within a period 120 days from the date of receipt of such an order or decision.

Provided that the National Commission may allow an appeal to be filed after the expiry of the said period of 120 days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed thirty days.

17D. Appeal to Supreme Court. — (1) Any person aggrieved by an order of the National Commission may file an appeal to the Supreme Court on a question of law arising out of such order or decision under this Act within a period of ninety days from the date of receipt of such order or decision.

(2) The Supreme Court may, if it is satisfied that a person was prevented by sufficient cause from filing an appeal within ninety days, allow the appeal to be filed within a further period not exceeding thirty days.

17E. Superiority of the National Commission. — Subject to the judicial review on the ground of error of law, in case, there is any gross inconsistency (either direct or indirect or expressed or implied) between the recommendation(s) and the adjudication by the National Commission and the State Commission, the recommendation(s) and the adjudication of the National Commission shall override the recommendations and the adjudication of the State Commission, whether the recommendation(s) or the adjudication by the National Commission was made either before or after such grossly inconsistent recommendation(s) or adjudication of the State Commission.”

Reason for Amendment:

With the setting up of the State Commissions, their powers and functions are required to be specified and hence the proposed additions to the Principal Act have been made by the Amendment Act. Further, with a proposed Two-Tier structure, with State Commissions at the State Level and National Commission at the Central/Union level, the latter has been constituted as an Appellate Body from the decisions of the State Commissions, with further appeals from the decisions of the National Commission lying to Hon’ble Supreme Court. Further as there is a distinct possibility of conflicting recommendations grossly inconsistent with the provisions of the Act or the interests of the transgender community, the decision of National Commission has been given priority.

Offences and penalties. —Whoever, —

(a) compels or entices a transgender person to indulge in the act of forced or bonded labour other than any compulsory service for public purposes imposed by Government;

(b) denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access to or a right to use; (c) forces or causes a transgender person to leave household, village or other place of residence; and

(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.

Proposed Amendments: In section 18 of the principal Act, under clause (d), for the words and expressions “not be less than six months”, the words and expressions “not be less than two years” shall be substituted and for the words and expressions “extend to two years”, the words and expressions “extend to five years” shall be substituted.

In section 18 of the principal Act, under clause (d), after the words and expressions “with fine.”, the words and expressions “, and in the case of continuing contravention, with an additional fine which may extend to fifty thousand rupees, for every day during which such contravention continues, after conviction for the first such contravention.” shall be added.

Amendment – New Provision

“18A. Contravention of section 9 of Act No. 40 of 2019. —Whosoever contravenes section 9, shall be punishable with imprisonment for a term which shall not be less than two years but which may extend up to five years and with fine, and in the case of continuing contravention, with an additional fine which may extend to fifty thousand rupees, for every day during which such contravention continues, after conviction for the first such contravention.

18B. Operation of other laws not barred. —Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for any act or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided under this Act.

Provided that no person shall be punished twice for the same offence.  

18C. Attempts and Abetment. —Whoever attempts to contravene, or abets or aids the contravention of, any of the provisions of this Act or of any rule or regulation or order made thereunder, shall be deemed to have contravened that provision or rule or regulation or order, as the case may be, and shall be punished as if he himself had committed the offence.  

18D. Offences to be Cognizable and Non-Bailable. —Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable, non-bailable and non-compoundable.

18E. Offences by State. — (1) Where it has been proved that an offence under this Act has been committed by any department or authority or body of the State, by whatever name called, the head of such department or authority or body shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(2) Nothing contained in sub-section (1) shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(3) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a department of the Central or State Government, or any authority of the State and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the head of the department or authority, such officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(4) Notwithstanding anything contained in this section, the provisions of the Code of Criminal Procedure, 1973 pertaining to public servants, shall continue to apply.

18F. Offences by Companies. — (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(2) Nothing contained in sub-section (1) shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(3) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Explanation—For the purpose of this section—

(a) “company” means any entity corporate, and includes—

(i) a firm; (ii) an association of persons or a body of individuals whether incorporated or not.

(b) “director” in relation to—

(i) a firm, means a partner in the firm; (ii) an association of persons or a body of individuals,

means any member controlling affairs thereof.”

Reason for Amendment:

A major criticism of the Principal Act has been the fact that it only contains a single section i.e., Section 18 in Chapter VIII as offences and penalties and the quantum of punishment is inadequate for an offence against a transgender person.[17] Hence, a complete overhaul of Chapter VIII is proposed. Thus, Section 18 is proposed to be amended by providing enhanced punishments (increased periods of imprisonment and fine). Further Sections 18A, 18B, 18C, 18D, 18E and 18F propose to classify the offences under the Act as cognizable, non-bailable and non-compoundable. Specific instances such as offences by State and Companies, act of discrimination by an Establishment employing transgender persons are proposed to be made punishable as well. Aiding and abetment of contravention of the provisions of the act or rules made thereunder is proposed to be penalized as well etc. All these measures will significantly improve upon the penal consequences of the act, and have a deterrent effect upon the potential offenders.

Grants by Central Government. —The Central Government shall, from time to time, after due appropriation made by Parliament by law in this behalf, credit such sums to the National Council as may be necessary for carrying out the purposes of this Act.

Proposed Amendment: In section 19 of the principal Act, for the word “Council”, the word “Commission” shall be substituted.

Reason for Amendment:

Necessary, Reasonable and Logical consequence of the proposed amendments to Chapter VII of the Principal Act which constitutes a National Commission for Transgender Persons.

20. Act not in derogation of any other law. —The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force.

Proposed Amendment: For section 20 of the principal Act, the following section shall be substituted, namely: —

“20. Act to have overriding effect. —Save as otherwise expressly provided under this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Reason for Amendment:

The proposed amendment of the Principal Act by the Amendment Act will ensure that the act will have primacy in case of conflict with any other law for the time being in force, thereby ensuring better implementation and protection of rights and interests of Transgender Persons.

Amendment – New Provision

“22A. Power of National Commission to make regulations. — (1) The National Commission may, by notification, make regulations consistent with this Act and the rules for the effective implementation of the purposes of this Act, in respect of the matters enumerated under List I and List III in the 7^th Schedule of the Constitution.

(2) Before finalization of regulations, the National Commission shall make available the draft rules in accessible formats to the members of the public and invite their suggestions and objections to the same.

22B. Power of State Commission to make regulations. — (1)1The State Commission may, by notification, make regulations consistent with this Act, the rules and the regulations of the National Commission (in so far as it relates to the same subject matter) for the effective implementation of the purposes of this Act, in respect of the matters enumerated under List II and List III in the 7^th Schedule of the Constitution.

(2) Before finalization of regulations, the State Commission shall make available the draft rules in accessible formats to the members of the public and invite their suggestions and objections to the same.

Provided that where any regulation has already been issued in any such matter enumerated under List III by the National Commission, such regulations shall override the regulations of the State Commission in respect of the said matter.”

Reason for Amendment:

Necessary, Reasonable and Logical consequence of the proposed amendments to Chapter VII of the Principal Act which constitutes a National Commission for Transgender Persons and State Commissions for Transgender Persons.

[1] INDIA Const. art. 14.

[2] INDIA Const. art. 19.

[3] INDIA Const. art. 21.

[4] INDIA Const. art. 245.

[5] INDIA Const. art. 246.

[6] National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438.

[7] INDIA Const. art. 16.

[8] National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438.

[9] INDIA Const. art. 14.

[10] INDIA Const. art. 15.

[11] INDIA Const. art. 16.

[12] INDIA Const. art. 19.

[13] INDIA Const. art. 21.

[14] Githa Hariharan v. Reserve Bank of India, 2 S.C.C. 228.

[15] INDIA Const. art. 26.

[16] The Protection of Human Rights Act, 1993, § 13, No. 10, Acts of Parliament, 1994 (India).

[17] Abhishek Goyal, Transgender Persons (Protection of Rights) Act, 2019: Enduring Struggle for Gender Rights Recognition, S.C.C. Online, (Jun.25, 2021, 9:19 PM), https://www.scconline.com/blog/post/2020/06/25/transgender-persons-protection-of-rights-act-2019-enduring-struggle-for-gender-rights-recognition/

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