Context

Important Social Bills

• In the social sphere, the government introduced the Transgender Bill, the Surrogacy Bill, and the Trafficking Bill.

• In each of the cases, the draft legislation was — correctly — introduced with the aim of addressing an existing lacuna in the legal landscape.

• The recognition of transgender rights by enshrining them in law had long been a demand of the community; the legal regulation of surrogacy and the tackling of trafficking as well arose out of the articulated claims of grassroots social movements, debated and framed over many years of engagement and activism.

Issues with  these bills

1.Transgender Bill

• For example, the Transgender Bill did away with the fundamental and non-negotiable principle — and one recognised by the Supreme Court in its NALSA judgment — of the right to self-determination of gender identity.

• Instead, it placed such decisions in the hands of government-appointed committees, extending state control over gender identities rather than liberating or emancipating them. It also contained deeply suspect provisions on gender reassignment surgery.

2.Surrogacy Bill

Similarly, the Surrogacy Bill excluded LGBT individuals from its ambit (despite their recognition as equal citizens under the Constitution by the Supreme Court), imposed discriminatory age restrictions upon men and women, and by entirely outlawing “commercial” surrogacy (instead of regulating it with appropriate safeguards) opened up space for underground and unreported exploitation of women, effectively creating a black market.

3.Trafficking Bill

• Lastly, the Trafficking Bill criminalised begging without providing any manner of effective alternatives and failed to distinguish between non-consensual trafficking and consensual sex work.

• It thus opened the door to criminalising livelihoods on the basis of what was effectively a set of narrow, moral objections.

Common Aspects among the bills

Individuality – First, each of them dealt with intimate subjects such as individuals’ decisions of what to do with their body, personal dignity and autonomy, and gender identity.

Rights of vulnerable Section – Second, they concerned the rights of some of the most vulnerable and marginalised members of our society.

Ignoring the stakeholders – Third, they were drafted without adequately consulting with, or listening to, the members of the communities who were impacted.

Enhanced State’s Control – Fourth, instead of guaranteeing and securing the rights of these communities to be free from state interference, they extended the state’s control and domination. And last, they were met by extensive and widespread protests from the communities themselves.

Way Forward

• While the government is, of course, entitled to frame its own policies, and draft and implement legislation to enact those policies, there are certain constraints upon how it should go about that task.

• At the minimum, the voices of those who will be directly impacted by the policy should be listened to and engaged with in good faith, and basic constitutional principles and values ought to be respected.

• The last phase of the previous government’s tenure presented a number of examples where these constraints were insufficiently complied with, and the resulting bills would therefore have ended up harming those whose rights they were meant to protect, apart from falling foul of crucial constitutional rights.

• It is to be hoped that these lacunae and shortcomings are remedied by the continuing government in power.

• Apart from the courts, however, this would need a sustained public movement around these issues, which can make its voice heard in the halls of power.