New Petition filed in SC for equal protection of transgenders against sexual offences 2020

    equal protection of transgenders against sexual offences

    A plea, petitioning for equal protection of laws, to the individuals of the transgender population, has been filed in the Supreme Court. The main argument in the plea is that, for the protection of the third gender from sexual offences by males/females and from other transgender, no provision or section has been incorporated in the India Penal Code. There is a dire need for anti-discrimination laws for the purpose of shielding the transgender community.

    equal protection of transgenders against sexual offences

    “In spite of declaring transgender people to be a ”third gender” by this court, there is no provision/section in the Indian Penal Code which may protect the third gender from the sexual assault by male/ female or another transgender,” the PIL reports.

    The plea was submitted by Advocate Reepak Kansal, where he outlines that clauses (i), (ii) and (iv) of sub-section (1) of Section 354A of IPC exclude victims of sexual harassment who are transgender persons, which goes against the very principles of Articles 14, 15, and 21 of the Constitution of India. Under these circumstances, it is requested by Kansal to direct appropriate modification/interpretation of sections of the IPC dealing with sexual assault to include transsexuals and eunuchs in their definitions.

    The plea states that “State cannot discriminate transgenders on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India.”

    Correspondingly, the petition includes statistics that shed light on incidents of sexual violence against transgenders. There are shockingly high levels of sexual abuse and assault, where one in two transgender individuals are sexually abused or assaulted at some point in their lives, some of which have occurred while in jail and custody of the police.

    “Sexual assaults can be perpetrated by any individual; however, it is particularly startling when professionals who are in “helping” roles abuse their power and sexually assault individuals they are supposed to be serving. Fifteen percent of transgender individuals report being sexually assaulted while in police custody or jail. The main reason is that there is no security of transgender and they put in jail with male convicted. There are no separate jails or wards or security to transgender.”

    equal protection of transgenders against sexual offences

    equal protection of transgenders against sexual offences
    equal protection of transgenders against sexual offences

    Referring to the decision of Delhi Police submitted to the Delhi High Court- all cases concerning sexual harassment against transgenders will now be registered under Section 354A of the Indian Penal Code which deals with “assault or criminal force to woman with intent to outrage her modesty,” Kansal alluded thatthe statement has no binding effect due to lack of proper enactment in law.

    Equal protection of transgenders against sexual offences

    Article 21 of the Indian constitution states that ‘No person shall be deprived of life or personal liberty except according to procedure established by law nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.’

    Characterising this constitutional provision as ‘the greatest and most inclusive’, the petition refers to the commonly understood meaning of  “Right to life” as “Right to live with dignity.” In the vantage point of transgenders, the plea elucidates that “due to said sexual assault /hate crime, transgender could not live their lives with respect and dignity” and discusses the case which granted recognition to the transgenders as “persons” under Article 14 of the Constitution- National Legal Services Authority v. Union of India (SCC 2014 5 SC 438).

    equal protection of transgenders against sexual offences

    Hence, The plea, asks for suitable modification/interpretation of sections and provisions of the IPC dealing with sexual assault to include, under the definition of the IPC, transgender/transsexuals/Kinnar and eunuchs. A need for gender-neutral laws dealing with sexual harassment mechanisms is also emphasised in the petition.

    equal protection of transgenders against sexual offences

    equal protection of transgenders against sexual offences
    equal protection of transgenders against sexual offences