Muddled Morality: An Attempt at Criminalising Transgender Community

On Dec 17, 2018, Lok Sabha passed the Government of India’s Transgender Persons (Protection of Rights) Bill, 2018 (henceforth TG Bill). The transgender community in the country is vehemently protesting against this Bill, as it not only disempowers the community, but also criminalises them. Another bill that the community is protesting against is The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (henceforth trafficking Bill) that was passed on February 28, 2018; and now both the Bills are to be moved to the Upper House.

Both the TG Bill and the trafficking Bill reflect the moral crusade of the current Bharatiya Janata Party (BJP) government. The former goes on to say that those who have not had gone through Sex Reassignment Surgery (SRS) can only identify as transgender, and not as male or female, and the identification as transgender depends on the scrutiny and certification by a District Screening Committee; those seeking to identify as male or female need to have had an SRS. In the case of sex work, the latter denies sex work from being considered work. As Sandhya Rao and Cath Sluggett write, laws like these snatch away the rights of sex workers by “reiterating the deep rooted belief that human rights exist only when one lives in conditions of socially accepted morality”.

The SRS that the TG Bill talks about is a risky and an expensive medical procedure, one should note. Thanks to the public health system in place in the country, even the willful cannot afford to go through the procedure. The Trafficking Bill not only equates sex work to trafficking, but also talks about sexual trafficking of only women.

Thus, the Bills that are supposedly in the interest of the oppressed communities that they address in them, set new moral definitions and standards for those communities. Most of the transgender persons in the country have to beg and do sex work for livelihood. The trafficking Bill adds on to the existing laws that are used against the community. The transgender community across the country is coming together to tell the government how far its policies are from the reality. As Bittu K, an activist notes, the police, judiciary and even hospitals are the sites of verbal, physical and emotional harassment for the community.

As Coalition for an Inclusive Approach on the Trafficking Bill (CIATB) remarks, the Bill does not adopt measures to encourage victims to approach law enforcement when violated. The Bill is focused solely on a surveillance mechanism that could be misused to target adults whose work is deemed immoral by the State.

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Ministry of Women and Child Development (MWCD) minister had introduced the trafficking Bill in Lok Sabha in May 2016, arguing that there was a need of a comprehensive law to address all the aspects of trafficking. However as Tripti Tandon, a lawyer from Lawyer’s Collective noted, “A “comprehensive law” was expected to harmonise different approaches and integrate existing laws into one. The Anti-Trafficking Bill does not do that. All it does is add yet another legislation to the already fragmented landscape of laws on human trafficking, further complicating the legal framework and its enforcement.”

Section 370 and 370 A of Indian Penal Code (IPC) define trafficking, and prohibit all forms of trafficking. It also expands the purview of what counts as exploitation, and says, “Any act of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude.” According this Section, Trafficking for any purpose – whether begging, domestic work, farm or factory work – is part of section 370, IPC, which lays down a minimum punishment of seven years of imprisonment, which may extend to 10 years and fine.

The current Bill however, creates a new category of “aggravated forms of trafficking”, which carrries a minimum sentence of 10 years, which may extend to life imprisonment. Some of the aggravated forms of trafficking introduced in the Bill are “trafficking for the purposes of forced labour, begging, marriage and child-bearing.” So what the bill does is, it just increases the punishment, and shows no interest in dealing with the causes of and existing powerful networks of traffickers.

As CIATB argued, the aspiration to move and access better living conditions, poverty, lack of equal opportunity and skewed development policies force persons to move in an unsafe manner, and accept work in a criminalised environment. For instance, in sex work or as undocumented workers abroad. The Bill ignores the problems associated with unequal growth, skewed development and inequity, including – aspirations to migrate for better livelihood.

In case of sex work, the Bill talks about sexual trafficking of women, and also proposes a rescue and rehabilitate model of measure to deal with such trafficking. “Women” in the Bill is a heteronormative term. Since, as mentioned earlier, the TG Bill refuses to consider transgender person as a man or a woman, one wonders what the Trafficking Bill has got to say about the exploitation of transgender Persons. The answer to this is, it criminalises them. Following is a case from Karnataka which shows the dire need of a law that does not paint the transgender community as a criminal one, but the one that ensures that their constitutional rights aren’t harmed.

“Operation Anandi”
TV9, a Kannada TV channel, had aired a show called ‘Operation Anandi’ on the September 25, 2016 from 10 am to 4 pm. It revolved around a 18-year-old boy named Rajesh who was abducted by Mangalmukhis (a transgender community from Karnataka), was and forcibly castrated, and hence turned into a Mangalmukhi against his wish. The show carried visuals of all the accused, captured on a ‘secret camera’ by the TV9 reporters along with the recreation of the castration ceremony. What followed this show was what the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 has in store for the community.

The channel called this show a ‘sting operation’, and a story more dangerous than that of the underworld of the city. Underworld refers to illegality and crime in the city. Gangs, sex workers (considered to be illegal), human trafficking, smuggling, robbery, kidnappers, beggars, etc. constitute this world, hidden under the world of judiciary, police, law and the state. Hence, the “underworld”— a world of illegality and lawlessness — exists as a parallel to the legal and lawful world. ‘Operation Anandi’ is a story of Hijras, their rituals, practices and way of life. By calling it a story more dangerous than that of the underworld, the show portrayed transgenders as not only belonging to the criminal class, but as the organised criminals.

There has always been a never-fulfilled curiosity regarding the functioning of the underworld. ‘Operation Anandi’, the anchor announces, is one of such missions that TV9 undertook to expose an “underworld” which was “not rowdism or international smuggling, but something straight from narka (hell)”. This “underworld”, the anchor proceeds to explain, is special and different as people getting into this world never come back because it is “disgusting and inhuman”. While the anchor calls this “sting operation”  a promise to expose this “underworld”, he asks the audience not to judge the entire community, as there are both good and bad people in the community. Such a plea is mere tokenism because the transgender community, for the anchor, the director, and the channel, is an “underworld” nonetheless, although with both good and bad crime.

The transgender persons who were in the recorded video were all arrested and tortured and then released. These arrests were protested widely across the state, however, such arrests of transgender persons is an everyday affair. The trafficking Bill in question here, if passed in Rajya Sabha, would allow such arrests of transgender persons for aggravated begging and sex work, and further would make them vulnerable to the violence. Can such a law be expected from a government which is bound to an ideology that holds morality over constitutional rights? 


First published in Newsclick.



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