This Article has been authored by Alay Raje and Ishika Jain, students of law at Nirma University, Ahmedabad.
The Universal Declaration of Human Rights states that, “All human beings are born with equal and inalienable rights and fundamental freedom”. Also, Articles 1 and 2 of the same state that all human are entitled to the same dignity and that no discrimination can be made on the basis of sex, respectively. Several international covenants such as Guidelines of the Committee on Economic Social and Cultural rights protect against discrimination on the grounds of gender identity and sexual orientation.
In India, the transgender community comprises of various groups, such as Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv-Shakthis. The term ‘Transgenders’ is used to describe a group of people who do not fall under the strict, binary gender characteristics, and who showcase a breaking of culturally predominant stereotypical gender roles. Due to the stigma surrounding these individuals, they are subjected to ever-increasing sexual offences, and yet the laws prohibiting the same in India are not fulfilling its objective. Crucial rights of transsexuals in India have been neglected and as a result, their lives lack basic human dignity.
Sexual Offences against Transsexuals in India
There is no doubt that women at large are generally the victims of sexual offences and more often than not, members of the transsexual community also find themselves to be the victims of these crimes. Unfortunately, they do not get the same attention that is accorded to the crimes committed against women,as in their case, these crimes go unnoticed and unregistered. The same was even acknowledged in the case of NALSA v. Union of India where it was stated that, “Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.” India ails from a deep-rooted transphobia; studies indicate that Doctors in India are reluctant to acknowledge that transsexuals can be raped. The data of the crimes against men, women and children is collected and published by the Indian Government but the same about transgenders is hardly available in Government reports. This data is collected by several NGOs through surveys and one such survey shows that sexual abuse on transsexuals happens as early as at 5-years of age.
There have been increasingly gruesome crimes against transsexual individuals in recent times. Khushi, an Indian transgender woman, was sexually abused by a police who officer groped her and when she, alongwith her other transgender friends, were wrongfully arrested, the police officer dragged her to a room where she was gang-raped by 3 officers. In another incident, a 20-year-old was raped by two men and they also poured acid on her. One transgender woman was kidnapped and held captive for two years, wherein she was gang-raped multiple times. According to an interview of a person who works for rehabilitation of people with HIV, a transgender woman was gruesomely raped by 17 police officers and was then left to die.
A 19-year-old transgender girl was brutally gang-raped in Puneand yet the police, instead of registering the offence as rape, registered it under the offence of ‘hurt’ and ‘unnatural sex’. In one incident, a transgender women was raped by an army officer and then thrown out of a jeep; while in another case, after being raped and becoming a victim of an acid attack, when a transgender woman approached the police to file a complaint, the police were reluctant to listen to her. Yet another instance of a violent crime against these individuals was when Alka, a 16-year-old, was killed by crushing her genitals with a rock.
The horrors of being transsexual in India can be understood from the case of Pinky Pramanic. When she was arrested for allegedly raping her live-in partner, despite identifying as a woman, due to her physical appearance she was forced to stay in a male prison, where she was subjected to brutal sexual abuse and violence by the police. She was tortured mentally and physically by the authorities including the medical officers, even her gender test video recording was leaked as an MMS.
The pain and helplessness that this community feels cannot be described or measured, the abovementioned cases only being a out of hundreds and thousands. These are the cases that have been brought to the notice of people, while thousands of unregistered sexual offences are committed against the transsexuals.
Development of the Legal Standing
The battle against discrimination and for recognition of rights of the LGBTQ community started in India in the case of Naz Foundation v. Govt of NCT of Delhi, wherein the Court found Section 377 of IPC, which considered same-sex intercourse as an unnatural criminal offence, to be unconstitutional as it is violative of the right to equality and the right against discrimination on the basis of sexual orientation enshrined under Articles 14 and 15 of the Indian Constitution, respectively. However, the Supreme Court of India, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the previous judgment and upheld the constitutionality of Section 377.
But due to an uproar across the nation for the demand to be legally recognized as transgender persons, the landmark judgment of NALSA v. Union of India declared transgender as the ‘third gender’. The Court held that the expression ‘sex’ in Article 15 of the Constitution, is not only inclusive of male or female but also includes people who are neither male nor female, hence, transgenders can also enjoy the fundamental right to live with dignity and equal status like others. Furthermore, in the landmark judgment of Navtej Singh Johar v. Union of India, the Supreme Court finally decriminalized homosexuality by declaring Section 377 of IPC to be unconstitutional.
In pursuance of the above judgments, the Transgender Persons (Protection of Rights) Act, 2019 (“the Act”) was passed in December, 2019. The Act is aimed at improving the conditions of transgender/ LGBTQ community and providing protection to them against any form of discrimination. Under the Act, a ‘self-perceived’ gender identity right is given to them. It also creates an obligation on the State to ensure the welfare of the transgender persons on subject matters such as health, education, employment etc.
Failure of the Legal Regime
The definition and scope of the offence of rape under Section 375 of IPC has expanded over time to include non-penile vaginal acts of penetration. However, the offence still remains a gender-specific crime. According to the Section, only a woman can be raped and so the right to seek justice when subjected to rape becomes impossible for transsexuals. Criminalizing rape should adopt a human rights-based approach so that the dignity of every human being is protected instead of making the offence gender-specific and discriminating against a particular community.
Moreover, the Act which is made to grant protection to the rights of the transgender persons lacks substantially in safeguarding their right against sexual offences. Section 18 of the Act states the punishment for certain offences. The entire construction of the Section construes sexual abuse as a petty offence. Unlike Section 375 of IPC, which is a dedicated section for rape and exhaustively defines and lays down ways in which rape can be committed, neither the Act nor Section 18 defines rape or any sexual offence and the same is entirely downplayed. Furthermore, while Section 375 of IPC imposes stringent punishments such as rigorous imprisonment for a term of 10-years or life imprisonment including a fine, Section 18 imposes a punishment of minimum 6-months and maximum of 2-years.
Additionally, there are other provisions in IPC that are gender-specific in terms of safeguarding against sexual crimes. Section 376C criminalizes a person in authority if he seduces a woman for sex. Section 509 punishes a person for intentionally insulting the modesty of a woman. Section 354 punishes a person for using criminal force or assault to outrage the modesty of a woman. These provisions only cover women and there is no mention of transgenders or people belonging to the LGBTQ community, thus, leaving them vulnerable to sexual crimes without any statutory protection.
The Preamble of the Indian Constitution ensures that in this nation, equality will be served, the people shall flourish as one big fraternity and that each and every individual shall live life with dignity. The current situation of the transsexuals clearly shows that we as a nation have failed this community and in a nation that propounds the principle of ‘Vasudhaiv Kutumbakam’, i.e., the world is a one big family, we have casted away our own members of the family and forced them to live a life of dishonour and sufferings. It is high time that we act upon it and ensure that such individuals are protected against sexual offences .
Globally, the rights of the LGBTQ community are getting a lot of attention lately. Especially in a country like India which followed a 158-years-old colonial law criminalizing homosexuality, the Supreme Court’s judgment of striking the law under Section 377 of the Indian Penal Code, 1872 (“IPC”) is a major breakthrough in terms of the LGBTQ community rights. However, even though this might seem like a win, the battle is still incomplete.