How Parliament came to have two Bills on transgender persons’ rights (and why neither may pass)

While the Lok Sabha passed the Transgender Persons Protection of Rights Bill, 2018, last week, it continues to sit on another similar piece of legislation. The Rights of Transgender Persons Bill, 2014, was introduced as a private member’s Bill by the Dravida Munnetra Kazhagam MP Tiruchi Siva, and passed by the Rajya Sabha in April 2015.

It was the first time in four decades that the Upper House had passed a private member’s Bill ‒ that is one introduced by a legislator not acting on behalf of the executive. It was widely lauded for laying out legal protections for India’s transgender people. The Bill also provided for reservations in education and government jobs for the community. “Are they not fellow human beings?” Siva had asked after moving the Bill. “And yet, they face discrimination. They do not even have access to public toilets and their vote ID cards identify them as females.”

However, Siva’s Bill may never become the law ‒ particularly now that the Narendra Modi government has moved its own piece of legislation to protect the rights of transgender people.

After the Rajya Sabha cleared the Bill, the Lok Sabha was expected to take it up for discussion quickly. That did not happen, though. In December 2015, the Ministry of Social Justice and Empowerment brought out a draft of the Transgender Persons Protection of Rights Bill, 2016. It was severely criticised by activists as also members of the transgender community, not least for getting the definition of the term “transgender” wrong. This is the Bill that was moved in the Lok Sabha on December 17 and passed, with 27 amendments, including a new definition.

A Bill pending in the Lok Sabha lapses with the dissolution of the House. “The logic is that the Lok Sabha is a fixed-term House,” explained Chakshu Roy of the PRS Legislative Research. “The Women’s Reservation Bill suffered the same fate. It was passed by Rajya Sabha in 2011 and went to Lok Sabha, where it remained until the House dissolved for the general election in 2014.”

The government’s Transgender Bill will meet the same fate if it is not cleared by the Rajya Sabha before the general election, Roy noted.

This is a unique situation in India’s parliamentary history, said a joint secretary in the Lok Sabha Secretariat who would only speak anonymously. “This is the first time that we have two such Bills,” the official explained. “The private member’s Bill was the reason why the government thought of bringing in legislation on the same subject.”

He agreed that Siva’s Bill is likely to lapse. “It has to be dropped,” he said. “Friday is when such Bills are taken up. In the Winter Session, there are only two Fridays left. Friday of December 21 was for resolutions and the following Friday is for private member’s Bills. If this Bill is not taken up that day, that will be the end of it. It will have to be introduced again after the election.”

‘Not substantially identical’

Rule 67 of the Rules of Procedure and Conduct of Business in Lok Sabha mandates that “when a Bill is pending before the House, notice of an identical Bill, whether received before or after the introduction of the pending Bill, shall be removed from, or not entered in, the list of pending notices, as the case may be, unless the Speaker otherwise directs”.

Similarly, Rule 112 states that “a Bill pending before the House shall also be removed from the Register of Bills pending in the House in case a Bill substantially identical is passed by the House.”

How then did the government manage to pass a similar piece of legislation when Siva’s Bill was pending? And why has Siva’s Bill not been removed from the register yet?

“The Lok Sabha Secretariat examined both these Bills in 2016,” the official explained. “They weren’t identical or substantially identical from a logical perspective. We could not come to a clear conclusion that Siva’s Bill fell under these rules and we did not want to set a wrong precedent by dropping the Bill.”

‘Kept in cold storage’

But why was Siva’s Bill left hanging fire for so long to begin with? Shamsher Sheriff, former secretary general of the Rajya Sabha, said the Bill was kept in “cold storage” because it put “too much onus on the government”. “They wouldn’t have wanted to pass it for that reason,” he said.

When the government moved its own Bill, the Lower House had to take it up first as mandated by the Order of Precedence. PDT Acharya, former secretary general of the Lok Sabha, confirmed that the executive’s legislation takes priority over a private member’s Bill. “Once the government introduces their Bill, the member is asked to withdraw theirs if it is on a similar subject and pending,” he added.

Such situations are rare, however. “In April 1979, a private member’s Bill on the Aligarh Muslim University was passed in the Rajya Sabha,” Acharya said. “Since a Rajya Sabha member cannot come to the Lok Sabha to introduce it, the Bill was taken up there by GM Banatwala. But then the government introduced the Aligarh Muslim University Amendment Bill, 1978. The Speaker ruled the two Bills were not identical and the government’s Bill was passed and the private member’s Bill was withdrawn.”

The Order of Precedence aside, the government’s Bill receives higher priority for other reasons as well. “Firstly, a government’s Bill is more comprehensive than a private member’s Bill,” Acharya explained. “For the government, experts draft a Bill fully knowing what repercussions it might have, whereas a private member’s Bill is usually drafted by amateurs who have no knowledge of its implications. And this is what makes two Bills different, even though they may broach the same subject.”

Sheriff said when the government’s Bill goes to the Rajya Sabha, it could either be debated or sent to a select committee. “Members would want to bring 50 or more amendments to this so they would rather send it to a select committee,” he added. “What we are yet to see is how this plays out politically. The regional parties with small numbers will have to take a call on whether they support the Opposition or the government.”

On his part, Siva insisted that he does not intend to withdraw his private member’s Bill. As for the executive’s legislation, the MP said he will push for it to go to a select committee. “The government had a problem with my Bill because of the provision for reservation,” he added. “We said they could drop it and apply reservation later. In any case, the way we had calculated the percentage of reservation to be granted to the transgender community, it would not have exceeded the limit set by the Supreme Court.”