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Petition in Supreme Court seeks protection for transgender persons against sex crimes under existing laws

Advocate Kansal has stated in the plea that Indian laws against sexual crimes are for men and woman and the transgender persons, being neither men nor women, fail to get justice under the available laws.

A petition has been filed in the Supreme Court seeking protection for the transgender community under laws against sex crimes. As reported by Live Law, the plea states that provisions available under the Indian Penal Code (IPC) do not provide protection to transgender persons from sexual crimes by males, females or even from another transgender person.

The petition, filed by Advocate Reepak Kansal, challenges clauses (i), (ii) and (iv) of sub-section (1) of Section 354A of the IPC as being ultra vires the Articles 14, 15 and 21 of the constitution contending that the above mentioned clauses exclude transgender persons from being considered victims of sexual harassment.

How the Law Excludes Transgender Persons

Advocate Kansal has stated in the plea that Indian laws against sexual crimes are for men and woman and the transgender persons, being neither men nor women, fail to get justice under the available laws. He has requested the court to make appropriate modification or interpretation of the relevant sections of the IPC so as to include transsexuals or eunuchs under them.

He said that Articles 14 and 15 do not limit the term person to just male and female and therefore the state cannot discriminate on the ground of gender. He relied on Article 21 which provides every person the right to life and personal liberty which includes life with dignity and said that due to sexual and hate crimes, transgender persons cannot lead their lives with dignity.

The Decision in NALSA v Union of India

Advocate Kansal referred to the Supreme Court decision in the 2014 case of National Legal Services Authority v Union of India in which the court had recognised transgender people as ‘persons’ under Article 14. He said despite the fact that transgender persons have been declared as Third Gender by the court, there is no provision under the IPC which extends protection to transgender persons against sex crimes.

The petition also cites some statistics indicating high levels of sexual abuse of transgender persons. The statistics referred show that one in every two transgender persons is subjected to sexual abuse or assault at some point in their lives. Some of them are also subjected to sexual abuse and assault in jail or police custody. The pleas states that 15% of transgender persons report being sexually assaulted while in police custody or jail. No separate jails, wards or security are there for transgender people.

Filing of Sexual Assault Cases Against Transgender under 354A

The petition states that the Delhi Police has submitted before the Delhi High Court that all the cases of sexual harassment against transgenders will be registered under section 354A of the IPC. However, the statement of the Delhi Police does not have a legal backing and it has not binding force in other states. The petition highlighted that India is a signatory to the Universal Declaration of Human Rights (UDHR) and therefore, the rights relating to life, liberty, equality and dignity available under the Constitution as well as the International Covenants are enforceable by the courts.

The plea, in addition to appropriate writ, order or direction, has sought directions from the court for:

  • Setting up of gender-neutral sexual harassment mechanism,
  • Enactment of an Anti-Discrimination Bill that penalises discrimination and harassment on the basis of gender,
  • Adoption and implementation of the UDHR, and
  • Framing of guidelines for the protection of the Fundamental Rights of transgenders till legislation to that effect is passed.

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