Explained: The Transgender Persons (Protection of Rights) Bill, 2016

Legislation

Explained: The Transgender Persons (Protection of Rights) Bill, 2016

Nivedita Rao - December 15, 2017 Comments

The Transgender Persons (Protection of Rights) Bill, 2016 has been listed for passage during the ongoing Winter Session of Parliament. This Bill was introduced in the Monsoon Session last year and referred to the Standing Committee on Social Justice and Empowerment, which tabled its report earlier this year. The Bill seeks to recognise transgender persons, and confer anti-discriminatory rights and entitlements related to education, employment, health, and welfare measures. This post explains key provisions of the Bill and certain issues for consideration.

Self-identification and obtaining a Certificate of Identity

The Bill provides for ‘self-perceived gender identity’ i.e. persons can determine their gender on their own. This is in line with a Supreme Court judgement (2014) which held that the self determination of one’s gender is part of the fundamental right to dignity, freedom and personal autonomy guaranteed under the Constitution.[1]

Along with the provision on ‘self-perceived gender identity’, the Bill also provides for a screening process to obtain a Certificate of Identity. This Certificate will certify the person as ‘transgender’. An application for obtaining such a Certificate will be referred to a District Screening Committee which will comprise five members including a medical officer, psychologist or psychiatrist, and a representative of the transgender community.

The Bill therefore allows individuals to self-identify their gender, but at the same time they must also undergo the screening process to get certified, and as a result be identified as a ‘transgender’. In this context, it is unclear how these two provisions of self-perceived gender identity and an external screening process will reconcile with each other. The Standing Committee has also upheld both these processes of self-identification and the external screening process to get certified. In addition, the Committee recommended that the Bill should provide for a mechanism for appeal against the decisions of the District Screening Committee.

Since, the Bill provides certain entitlements to transgender persons for their inclusion and participation in society, it can be argued that there must be an objective criteria to verify the eligibility of these applicants for them to receive benefits targeted for transgender persons.

Status of transgender persons under existing laws

Currently, several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 (NREGA) and Hindu Succession Act, 1956. Now, the Bill seeks to recognise a third gender i.e. ‘transgender’. However, the Bill does not clarify how transgender persons will be treated under certain existing laws.

For example, under NREGA, priority is given to women workers (at least one-third of the beneficiaries are to be women) if they have registered and requested for work under the Act. Similarly, under the Hindu Adoptions and Maintenance Act, 1956, there are different eligibility criteria for males and females to adopt a girl child. In this context, the applicability of such laws to a ‘transgender’ person is not stated in the Bill. The Standing Committee has recommended recognising transgender persons’ right to marriage, partnership, divorce and adoption, as governed by their personal laws or other relevant legislation.

In addition, the penalties for similar offences may also vary because of the application of different laws based on gender identity. For example, under the IPC, sexual offences related to women attract a maximum penalty of life imprisonment, which is higher than that specified for sexual abuse against a transgender person under the Bill (up to two years).^[2]

Who is a transgender person?

As per international standards, ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth.[3]^, [4] For example, a person born as a man may identify with the opposite gender, i.e., as a woman.^[5] In addition to this sense of mismatch, the definition provided under the Bill also lists further criteria to be defined as a transgender person. These additional criteria include being (i) ‘neither wholly male nor female’, or (ii) ‘a combination of male or female’, or (iii) ‘neither male nor female’.

The Supreme Court, the Expert Committee of the Ministry of Social Justice and Welfare, and the recent Standing Committee report all define ‘transgender persons’ based on the mismatch only.¹^,[5],[6] Therefore, the definition provided under the Bill does not clarify if simply proving a mismatch is enough (as is the norm internationally) or whether the additional listed criteria ought to be fulfilled as well.

Offences and penalties

The Bill specifies certain offences which include: (i) compelling transgender persons to beg or do forced or bonded labour, and (ii) physical, sexual, verbal, emotional or economic abuse. These offences will attract imprisonment between six months and two years, in addition to a fine.

The Standing Committee recommended graded punishment for different offences, and suggested that those involving physical and sexual assault should attract higher punishment. It further stated that the Bill must also specifically recognise and provide appropriate penalties for violence faced by transgender persons from officials in educational institutions, healthcare institutions, police stations, etc.

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[1]. National Legal Services Authority vs. Union of India [(2014) 5 SCC 438]; Article 21, Constitution of India.

[2]. Sections 354, 354A, 354B, 375, Indian Penal Code, 1860.

[3]. Guidelines related to Transgender persons, American Psychological Association, https://www.apa.org/practice/guidelines/transgender.pdf.

[4]. Standards of Care, 7th Version, The World Professional Association for Transgender Health, https://s3.amazonaws.com/amo_hub_content/Association140/files/Standards%20of%20Care%20V7%20-%202011%20WPATH%20(2)(1).pdf.

[5]. Report of the Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Empowerment, January 27, 2014, http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.

[6]. Report no.43, The Transgender Persons (Protection of Rights) Bill, 2016, Standing Committee on Social Justice and Empowerment, July 21, 2017, http://164.100.47.193/lsscommittee/Social%20Justice%20&%20Empowerment/16_Social_Justice_

Examining pendency of cases in the Judiciary

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Roshni Sinha - August 8, 2019 Comments

Yesterday, Parliament passed a Bill to increase the number of judges in the Supreme Court from 30 to 33 (excluding the Chief Justice of India). The Bill was introduced in view of increasing pendency of cases in the Supreme Court. In 2012, the Supreme Court approved the Scheme of National Court Management System to provide a framework for case management. The scheme estimated that with an increase in literacy, per capita income, and population, the number of new cases filed each year may go up to 15 crore over the next three decades, which will require at least 75,000 judges. In this blog, we analyse the pendency of cases at all three levels of courts, i.e. the Supreme Court, the Highs Courts, and the subordinate courts, and discuss the capacity of these courts to dispose of cases.

Pendency in courts has increased over the years; 87% of all pending cases are in subordinate courts

Sources: Court News, 2006, Supreme Court of India; National Data Judicial Grid accessed on August 7, 2019; PRS.

Overall, the pendency of cases has increased significantly at every level of the judicial hierarchy in the last decade. Between 2006 and now, there has been an overall increase of 22% (64 lakh cases) in the pendency of cases across all courts. As of August 2019, there are over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts. Of these, subordinate courts account for over 87.3% pendency of cases, followed by 12.5% pendency before the 24 High Courts. The remaining 0.2% of cases are pending with the Supreme Court. The primary reason for growing pendency of cases is that the number of new cases filed every year has outpaced the number of disposed of cases. This has resulted in a growing backlog of cases.

In High Courts and subordinate courts, over 32 lakh cases pending for over 10 years

Sources: National Data Judicial Grid accessed on August 7, 2019; Court News, 2006-17, Supreme Court of India; PRS.

In the High Courts, over 8.3 lakh cases have been pending for over 10 years. This constitutes 19% of all pending High Court cases. Similarly, in the subordinate courts, over 24 lakh cases (8%) have been pending for over 10 years. Overall, Allahabad High Court had the highest pendency, with over seven lakh cases pending as of 2017.

Despite high pendency, some High Courts have managed to reduce their backlog. Between 2006 and 2017, pendency of cases reduced the most in Madras High Court at a rate of 26%, followed by Bombay High Court at 24%. Conversely, during the same period, the pendency of cases doubled in the Andhra Pradesh High Court, and increased by 2.5 times in Karnataka High Court.

As a result of pendency, number of under-trials in prison is more than double that of convicts

Sources: Prison Statistics in India, 2015, National Crime Record Bureau; PRS.

Over the years, as a result of growing pendency of cases for long periods, the number of undertrials (accused awaiting trial) in prisons has increased. Prisons are running at an over-capacity of 114%. As of 2015, there were over four lakh prisoners in jails. Of these, two-thirds were undertrials (2.8 lakh) and the remaining one-third were convicts.

The highest proportion of undertrials (where the number of inmates was at least over 1,000) were in J&K (85%), followed by Bihar (82%). A total of 3,599 undertrials were detained in jails for more than five years. Uttar Pradesh had the highest number of such undertrials (1,364) followed by West Bengal (294).

One interesting factor to note is that more criminal cases are filed in subordinate courts than in High Courts and Supreme Court. Of the cases pending in the subordinate courts (which constitute 87% of all pending cases), 70% of cases were related to criminal matters. This increase in the pendency of cases for long periods over the years may have directly resulted in an increase in the number of undertrials in prisons. In a statement last year, the Chief Justice of India commented that the accused in criminal cases are getting heard after serving out their sentence.

Vacancies in High Courts and Subordinate Courts affect the disposal of cases

Sources: Court News, 2006-17, Supreme Court of India; PRS.

Vacancy of judges across courts in India has affected the functioning of the judiciary, particularly in relation to the disposal of cases. Between 2006 and 2017, the number of vacancies in the High Courts has increased from 16% to 37%, and in the subordinate courts from 19% to 25%. As of 2017, High Courts have 403 vacancies against a sanctioned strength of 1,079 judges, and subordinate courts have 5,676 vacancies against a sanctioned strength of 22,704 judges. As of 2017, among the major High Courts (with sanctioned strength over 10 judges), the highest proportion of vacancies was in Karnataka High Court at 60% (37 vacancies), followed by Calcutta High Court at 54% (39 vacancies). Similarly, in major subordinate courts (with sanctioned strength over 100 judges), the highest proportion of vacancies was in Bihar High Court at 46% (835 vacancies), followed by Uttar Pradesh High Court at 42% (1,348 vacancies).

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Explainer: The Code on Occupation Safety, Health and Working Condition

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Anya Bharat Ram - July 31, 2019 Comments

Presently, there are around 40 central laws regulating different aspects of labour such as, industrial dispute resolution, bonus payments, and working conditions. The Ministry of Labour and Employment has proposed to consolidate these laws into four codes—wages, social security, industrial safety and welfare, and industrial relations.

The Occupational Safety, Health and Working Conditions Code, 2019 was introduced in Lok Sabha on July 23, 2019.[1] The Code consolidates 13 labour laws relating to safety, health and working conditions. These include the Factories Act, 1948, the Mines Act, 1952, and the Contract Labour (Regulation and Abolition) Act, 1970. In this context, we explain key provisions of the Code.

Who will be covered under the Code?

The Code applies to organisations employing at least 10 workers, and to all mines and docks. Provisions of this Code will cover both employees and workers. Employees include individuals in managerial and administrative positions. However, the Code does not apply to apprentices, or to offices of the central or state governments.

Does the Code create special provisions for different types of organisations and workers?

Apart from prescribing health and safety provisions that apply to all organisations, the Code also outlines special requirements for different types of organisations (such as factories and mines) and workers (such as beedi and cigar workers). These special provisions include exceptions or additional requirements. For example, under the Code, factories are required to get a license in addition to registering under the general provisions of the Code. Similarly, the Code requires certain contractors to get licenses before hiring any contract labour. Further, audio-visual workers can only be hired after signing an agreement with employers, which must be registered with a government authority.

What are the duties of employers and employees?

The Code lays down several duties of employers. These include, providing a workplace that is free from hazards that may cause injury or diseases, and providing free annual health examinations to employees. For certain organisations such as, factories and mines, the employer may have additional responsibilities. These include the obligation to notify authorities in case of an accident at the workplace that leads to death or serious bodily injury of an employee.

Under the Code, employees must take care of their own health and safety, comply with the specified standards, and report unsafe situations to the inspector-cum-facilitator. Employees also have the right to obtain information related to safety and health standards from the employer. They may do this by directly approaching the employer, or through a Safety Committee representative.

Will work hours be uniform for all workers and employees?

Work hours for different types of organisations and employees will be notified by the government. This is different from the current labour laws, many of which specify work hours within the law itself. For example, the Factories Act, 1948 provides for a maximum 10 hours of work per day and 60 hours of work per week.[2]

The Code also changes work hour requirements for women. The current laws such as, the Mines Act, 1952, and the Plantations Labour Act, 1951, prohibit women from working after 7 pm and before 6 am.^{[3]^,[4]} However, the Code permits female workers to work past 7 pm and before 6 am with their consent and the approval of the government.

What working conditions and welfare facilities does the Code provide for?

The employer is required to provide a hygienic work environment with: (i) ventilation, (ii) comfortable temperature, (iii) sufficient space, (iv) clean drinking water, and (v) latrine and urinal accommodations. In addition, the government may specify certain other facilities such as, canteens, first aid boxes, and crèches that an employer must provide for. This is a shift from the current legislation which provides for welfare facilities like canteens and crèches, in the law itself. For instance, the Factories Act, 1948 requires the provision of canteens, ambulances, and first aid kits for organisations depending on the number of workers employed in the organisation.²

What is the leave policy for workers?

The Code states that no employee can be made to work for more than six days a week. However, exceptions could be provided for motor transport workers. Annually, workers must receive one day off for every 20 days they have worked. While calculating annual leave, maternity leave and periods of lay off will be counted as days spent on duty.

What are the authorities set up under the Code?

The Code requires central and state governments to set up Occupational Safety and Health Advisory Boards at the national and state level, respectively. These Boards will advise the central and state governments on the standards, rules, and regulations to be framed under the Code.

The composition of the National Advisory Board includes five representatives for employers, five representatives of employees, and five reputed persons from the fields related to occupational health and safety, amongst other members. The composition of State Advisory Boards will be decided by state governments.

How is the Code being enforced?

An inspector-cum-facilitator may be appointed by the government to inspect workplaces, inquire and investigate accidents, and provide safety information to workers. In the case of factories, mines, and docks, the inspector may close or restrict employment in parts of the organisation if there is a health and safety risk.

The Code also prescribes penalties for violating provisions of the Code. An offence that leads to the death of an employee could result in imprisonment of up to two years, or a fine up to five lakh rupees, or both. Further, at least 50% of such fine may be given as compensation to the heirs of the victim. For any other violation where the penalty is not specified, the employer will be penalised with a fine between two and three lakh rupees. On the other hand, if an employee violates provisions of the Code, he could be fined up to Rs 10,000.

Does the Code provide gender specific provisions?

The Code includes certain provisions specific to female and transgender workers. With respect to women, the government can prohibit employment of women in certain organisations if working there may be dangerous to their health and safety. Further, the Code allows female workers to work night shifts with their consent and subject to approval of the government. The Code also acknowledges transgender persons as a third gender by requiring separate urinal and latrine accommodations, rest rooms, washing spaces, and locker rooms for male, female, and transgender workers.

[1] Occupational Safety, Health and Working Conditions Code, 2019, Ministry of Labour and Employment, https://www.prsindia.org/sites/default/files/bill_files/Occupational%20Safety%2C%20Health%20and%20Working%20Conditions%20Code%2C%202019.pdf.

[2] Factories Act, 1948, Ministry of Labour and Employment, https://labour.gov.in/sites/default/files/TheFactoriesAct1948.pdf

[3] Mines Act, 1952, http://www.dgms.gov.in/writereaddata/UploadFile/Mines%20Act,%201952.pdf.

[4] Plantations Labour Act, 1951, https://labour.gov.in/sites/default/files/The-Plantation-Labour-Act-1951.pdf.

[5] Beedi and Cigar Workers (Conditions of Employment) Act, 1966, http://labour.bih.nic.in/acts/beedi-and-cigar-workers-act-1966.pdf.