Plea Seeking Equal Protection Against Sexual Offences For Transgenders Filed In Supreme Court

A PIL (Public Interest Litigation) has been filed in the Supreme Court seeking equal protection for sexual offences against the third gender, the transgender community.

The petition has alleged that there was no provision in the Indian Penal Code (IPC) that protects the transgenders from sexual assault by male, female or another transgender, reported The New Indian Express.

The plea has been filed by advocate Reepak Kansal and has made the ministries of law and justice, and social justice and empowerment as parties. It has asked the apex court to direct the Centre to make law and enforcement mechanism dealing with sexual harassment in the country free from gender-bias.

Referring to the provisions of IPC of 1860 and recent amendments into the statute and other laws on sexual offences, it stated that none of the provisions or modifications was pertaining to the "transgender, transsexuals, and eunuchs".

"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 petition read.

The petition challenged the constitutional validity of clauses (i), (ii) and (iv) of sub-section (1) of Section 354A (outraging the modesty of a woman) of IPC that excludes victims of sexual harassment who are transgender persons, which is violative of Article 14( which guarantees equality in general), Article 15 (which prohibits discrimination on the grounds of religion, race, caste, sex or place of birth, or of any of them) and Article 21 (which guarantees right to life and liberty) of the Constitution of India.

"The petitioner is filing this petition. with respect to equal protection of law to the third gender/transgender from the sexual assault /offences as there is no provision/section in the IPC which may protect the third gender from the sexual assault by male/ female or another transgender, therefore, anti-discrimination laws are needed to safeguard the basic citizenship rights of transgender persons," the plea added.

Pointing to the social discrimination faced by the community, the plea said, "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 per cent 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."

Kansal, in his petition, urged that the greatest and most inclusive constitutional provision is Article 21, which specifically states that no person shall be deprived of life or personal liberty except according to the procedure established by law.

It also referred to an incident of not lodging an FIR by Delhi Police on a sexual harassment complaint of a Delhi University transgender student on the ground that there was no provision in the IPC to deal with transgenders.

The plea urged the top court "to issue an appropriate order. directing the respondents to pass an Anti-Discrimination Bill that penalises discrimination and harassment on the basis of gender".

Several reports have hinted at the increasing rate of sexual offences against the transgender community in the country.

On September 23, a Kolkata Police personnel was arrested for allegedly harassing a transgender activist and her two women friends. The activist, who is a member of the West Bengal Transgender Welfare Board, in her police complaint, said that the accused misbehaved with her and roughed up her car driver. Taking to social media she said, "When we tried to stop him, he forced upon us. He tried inserting hands inside our clothes and touch our private parts. Our driver was also severely beaten for trying to stop him forcing on us."

Taking occurrences of such incidents into consideration, the petition seeking a direction to adopt and implement gender-neutral laws is the need of the hour.

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