Supreme Court issues notice on plea seeking stringent punishment for offences against Transgender persons

The Supreme Court on Friday issued notice to the Central government on a plea seeking stringent and severe punishment for offences against transgender persons [Kajal Managal Mukhi v. Union of India and Another]..Notably, the plea also challenged the constitutional validity of Section 18 of the Transgender Persons (Protection of Rights) Act 2019, which provides for a list of offences against transgender persons and the respective penalties that can be imposed.A Division Bench of Justices L Nageswara Rao and BR Gavai sought response of the Ministry of Social Justice and Empowerment and tagged the plea with other similar pending cases challenging the constitutional validity of the Transgender Persons (Protection of Rights) Act, 2019..The plea moved by one Kajal Managal Mukhi, a Transgender activist sought directions from the Court to the Central government to provide stringent and severe punishment for offences against transgender persons.Filed through advocate Shantanu Kumar, the plea argued that Section 18 of the Act provides for lesser punishment/ penalties for offences against transgender persons. Offences against transgender persons should be classified and penalties set in accordance with the provisions of the Indian Penal Code 1860, the Bonded Labour (System Abolition) Act 1976 and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989.Moreover, the plea contended that Section 18 infringes Articles 14 and Article 21 of the Constitution of India 1950 and is also against right against discrimination as propounded by the Supreme Court in National Legal Services Authority (NALSA) v. Union of India (2014) 5 SCC 438.According to the petitioner, Section 18 does not speak of the general discrimination faced by transgender persons everyday but only provides for discrimination of a specific nature. Irrational punishment for crimes against transgender persons in comparison to punishment for offences against cis-gender persons, directly hampers a transgender person's protection and social security, the plea contended.The plea also stated that even after the enactment of the 2019 Act, crimes against the transgender persons are still increasing, and the primary reason for the same is less effective punishment for offences committed against them.Hence, classification of offences is imminent since the major chunk of provision under the Indian Penal Code are gender-specific including provisions of Sections 354, 354-B, 354-D, 375 and 376-E, and therefore, it is very difficult to determine the liability of an offender committing an offence against the transgender persons.Advocate-on-Record Shantanu Kumar and Advocate Dipti Singh appeared for the petitioner..On January 27, 2020, the Supreme Court had agreed to hear a petition moved by Assam's first transgender Judge, Swati Bidhan Baruah challenging the constitutional validity of the Transgender (Protection of Rights) Act, 2019.The petition had argued that while the Supreme Court, in its NALSA judgment, had directed the states and the Centre to ensure that the fundamental rights of the transgender community are not violated, the newly enacted legislation "sets the clock back" and negates the positive steps taken through the judgment.On June 12, 2020, the Supreme Court had tagged another petition challenging the validity of the Act with the case moved earlier by Assam's first transgender Judge, Swati Bidhan Baruah.Notably, in November 2020, the Karnataka High Court had expressed serious reservations in staying the entire Act."There is a well-settled principle in law that there is a presumption of constitutionality for statutes. What happens if we stay it? The entire Act will be stayed....it will have disastrous consequences," the High Court had observed..[Read Order]