In 2018, in the case of Anamika v. Union of India & Ors., the Hon’ble Delhi High Court delivered a landmark judgement in progressing the rights of transgender persons. Section 354A of Indian Penal Code, 1860 deals with sexual harassment of women and punishment for the same. In Anamika, the Delhi High Court held that section 354A of IPC is applicable to trans women and further directed the police department to register the case under the same section. This case is one of the exceptional cases where a section, which is applicable to a cis woman, was made applicable to a trans woman. Further, the punishment for a rape of a cis woman, under the Indian Penal Code, is at least 10 years or life imprisonment and if the rape of a woman causes her death, then the death penalty is awarded in certain cases.
In 2014, the Supreme Court of India delivered its landmark judgment in National Legal Services Authority v. Union of India & Ors. This judgment held that Article 14 of the Constitution of India, 1950 is applicable to transgender persons and that transgender persons are not second class citizens. While the judgment has been heralded as a constructive step towards realizing the rights of the transgender community, five years later, in 2019, the Transgender Persons (Protection of Rights) Act, 2019 (Hereinafter referred as “Trans Act”) came into force midst a wave of protests by the transgender community. Section 3 of the Trans Act deals with non discrimination in employment, education, place of residence etc. Section 4 deals with the right to self perceived gender identity and Section 5 deals with the rules pertaining to obtaining identity cards.
Perhaps most importantly, Section 18 of the Trans Act deals with the punishment for violence against trans persons. Whereas under the Indian Penal Code, the maximum possible punishment available for sexual harassment of women is rigorous imprisonment for a period of ten years and with fine, Section 18 of the Trans Act proceeds to clump all aspects of violence against the transgender community, such as physical abuse, verbal abuse, mental and emotional abuse, and economical abuse together, and furthermore, makes all of the abovementioned instances of violence towards transgender persons punishable merely with a maximum imprisonment of two years.
If a transgender person is being forced to work as a bonded labourer, the same punishment applies whereas, as per the Bonded Labour System (Abolition) Act, 1976, the punishment for forcing a person to partake in bonded labour is imprisonment upto three years. The increase in punishment for perpetrators is given based on the concept of deterrence of crimes but the Trans Act considers a trans persons, a level below cis persons. This provision is also against Articles 14, 19 and 21 of the Indian Constitution and against the Supreme Court’s judgment in NALSA.Thus, any Act including the Trans Act which differentiates a cis person from a trans person is against the Indian constitution.
The objective of the NALSA judgment rendered by the Supreme Court of India was to afford protection to the trans community through the existing laws, for the betterment of the transgender community, including protection against sexual harassment, rape and any type of sexual abuse that the trans community faces. However, the problems inherent with the Trans Act is due to the society conditioned thinking that sexual abuse can be perpetrated by only one gender. Society has to come to an understanding that any gender can indulge in sexual abuse and only if the society understands it can gender neutrality of rape laws can be achieved. Even in the NALSA judgment, the Supreme Court, at length, discussed about how vulnerable the trans community is to sexual abuse.
The trans community is being put through a lot of societal inequalities and hurdles by the existing legal framework in India, and the primary reason for this being that the trans community doesn't adhere to the established norms of the gender binary practised in society. The Trans Act exemplifies this patriarchal norm established in society. Due to all these reasons, the Trans Act has been currently challenged before the Supreme Court of India regarding it's constitutionality. It's high time that the society and the Trans Act checks its biases with respect to considering the trans community as second class citizens.
(Note: This article was originally published in Tamil in Nirami, a LGBTQ+ monthly e-digest published by Dhammam Foundation, Tamil Nadu, India. Click on the following link to read the original article -
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