Jus Rerum 2020-09-18: 8 Min

LEX MALLA, LEX NULLA

Author: Aeiknor Kaur Virk

Student of ASET, Amity University Madhya Pradesh

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"Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity" 

-Martin Luther King

No quote seems more apt for the judiciary in India that bluntly refuses to acknowledge the validity of the LGBTQ+ community. Sure, the expression has been decriminalized in our country, but the mere notion of a huge chunk of our population needing permission to be themselves screams ignorance and yes, bigotry. 

 

Not to mention that the Transgender Bill 2019 initially required every trans person to submit before a team and get "classified". Their validity was almost based on the whims of someone else. While that has been scraped, they still cannot practice their identity on a legal front without a sex reassignment surgery. 

 

And the surgery needs to meet certain evaluation procedures to be deemed fit; a practice in direct condemnation of Indian and international jurisprudence. If a legal and medical procedure cannot be kept separate, as is a must according to international standards of legal gender recognition, why not use lawyers in hospitals to fill the shortage of doctors during this pandemic? If that notion seems laughable, so are the demands set by the Trans bill 2019. 

 

In fact, the very name, Transgender Bill, seeks to exclude a part of the population it is supposed to be in favor of. Intersex people are not transgenders. In the matter of intersex rights, our supreme court would do well to take a leaf out of Tamil Nadu's book and grant them protection from forced sex reassignment surgery as infants. Can you imagine, something as mundane as a name can be changed by an adult if they wish not to continue with what was allotted to them at birth, but intersex people can never go back to their true bodies if they've been subjected to reassignment at birth. And yet, the name changing right is protected by law, but the rights of intersex infants are not. Doctors are used to treating them like freaks of nature, the law is against them, and the society has always been a rigid, non-inclusive structure. By accepting this law, and every other discriminatory practice present in our system, we're soliciting in a grand celebration of stripping someone of their individuality and reducing them to numbers, cases and stereotypes. 

 

It clearly shows the treatment of a cultural, and more importantly, human, community to be one step below what the rest of us are accustomed to. They are second class citizens in everything but the name.  After all, what else do you call someone if they are being treated in direct contradiction of almost all fundamental laws? 

Even if raped, their perpetrators will face only 1/3rd of the punishment a "generic" or "normal" rapist would if the victim was a heterosexual female. 

 

Excuse the vulgarity, but wouldn't this make it easier to just rape people from the trans community and face much smaller risks? This is almost a redirection of crime. In fact, crime has become a mere legal factor, the repercussions do not ensure non-repetition. 

 

And the reservation situation in educational and other sectors for the LGBTQ+ community is dire at the best. If a socially, culturally and legally, backward community (in terms of opportunities) that faces discrimination daily does not qualify for reservation, who will? The non-extension of this right, the right which has been misused by the wealthy and by the non-deserving wholeheartedly, shows either the blindness of the legal system or their deliberate callousness. 

 

One of the biggest blows to the equality of the LGBTQ+ community comes hand in hand with the marriage rights allotted to them. While trans people exercise some rights, the same cannot be said for same-sex couples in India. They can form relationships, and express their sexuality, but they cannot marry. As a result, any rights associated with matrimony are kept out of their reach, like insurance etc. Not to mention the breach of the right to equality and the right to marry under the right to life. Adoption, consecutively, is an option far out of their reach, both imaginative and legal.

 

This thought comes with the statement made by General solicitor Tushar Mehta, 

"Our law, legal system, society, our values do not recognize the marriage – which is a sacrament – between a same-sex couple,” 

If our values and our legal system actively represses and strangles a community that has done no wrong, maybe we should stop being proud of them and start calling them out. If in 2020 and a marriage driven country like India, people still have to fight for the right to choose their life partner, the term equality holds no real meaning. 

 

Panditji had said, years ago, and it still holds true today, “...we have in India a strange habit of making gods of various things, and having given them our theoretical worship, doing exactly the reverse.”

 

Marriage laws should not become sacred, and therefore static, but the union of two people who love each other should. Laws can be amended, a wrong can never be rectified without having some part of it live forever in the minds of everyone affected. 

A special marriage act, which exists already, can be updated to provide for the needs of everyone in the society. 

 

We should preempt before wrong laws set India's legal clock to reverse and we start to travel back in time.

As is said, "Lex malla, Lex nulla". A bad law is no law. Imagine, right at this moment, there are thousands of people being denied the very rights that we, as members of the human race, take for granted. We shouldn't wait for a prompt, everything we see around us should be one.

 

Food for thought: Our NCERT books have scraped the words "discrimination on the basis of sex" that are given in our constitution, and replaced the word sex with "male or female". Education is practicing the very discriminatory practices it should abate. Isn't this systematic misrepresentation and prejudicing the youth of India? On what more levels can we find such cases that seem trivial, but seek to create a bad rep for a community that holds culturally intrinsic values to ours? 


Bibliography

Websites referred:

  1. Kyle Knight, India’s Transgender Rights Law Isn’t Worth Celebrating (Last accessed Sep 17, 2020)

https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating

  1. Ayushi Singh, Is India Ready to accept Transgender Marriage with reference to Marriage related Laws in India? (Last accessed Sep 17, 2020)

http://www.legalserviceindia.com/legal/article-3321-is-india-ready-to-accept-transgender-marriage-with-reference-to-marriage-related-laws-in-india-.html

  1. Press Trust of India, Our Laws, Values Don't Recognise Same-Sex Marriage": Centre To Court (Last accessed Sep 17, 2020)

www-ndtv-com.cdn.ampproject.org/v/s/www.ndtv.com/india-news/our-laws-values-dont-recognise-same-sex-marriage-centre-to-delhi-high-court-2295129?akamai-rum=off&amp=1&amp_gsa=1&amp_js_v=a2&usqp=mq331AQFKAGwASA%3D#amp_tf=From%20%251%24s&aoh=16003394967937&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Fwww.ndtv.com%2Findia-news%2Four-laws-values-dont-recognise-same-sex-marriage-centre-to-delhi-high-court-2295129

Books Referred:

  1. NCERT Class 7 

  2. Constitution of India 

  3. Arun Shourie, The Parliamentary System, (2007).


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