Updated: Feb 9, 2021
Section 375 of the Indian Penal Code, 1860 has been amended to widen the scope of the sexual offences that it deems to punish. However, these amendments only protect a solitary class of the Indian population – the female gender. By protecting only one gender, Indian rape laws not only hinder gender inclusivity but puts a large class of people, namely the transgender community at risk.
While sexual offences like rape against the transgender community are rising readily with each passing day, the Indian Penal Code’s scope has not been amended to include these crimes nor any special laws have been introduced to bridge that gap. A plea submitted to the Supreme Court by Advocate Reepak Kansal highlights this problem. The plea reads, “Some reports estimate that transgender survivors may experience sexual assault up to 66 per cent, often coupled with physical assault or abuse”
PROBLEMS FACED IN REPORTING SEXUAL OFFENCES BY THE TRANSGENDER COMMUNITY AND THE STIGMA SURROUNDING IT
Through the landmark judgement of National Legal Services Authority v. Union of India, the transgender (also known as the third gender) community was recognised to fall under the ambit and protection of Article 14 of the Constitution. However, despite the formation of certain guidelines by NALSA in lieu of the aforementioned judgement, the community has still not been extended protection under rape laws of India.
The Indian Penal Code, 1860, conforming to traditional gender norms, refer to a man as a “perpetrator” and a woman as a “victim”. This not only makes it extremely difficult for the transgender community to be recognised as victims of rape and other sexual offences, but it also makes it difficult for them to take the necessary action against these heinous crimes.
Although the Transgender Persons (Protection of Rights) Bill, 2019 contains provisions that punish perpetrators against sexual offences against transgender persons, the lenient punishment fails to deter the offender from repeating it in the future. Coupled with this, the stigma surrounding the transgender community as a whole and them reporting sexual offences makes it even more difficult for them to get justice.
“A 2017 study by the National Human Rights Commission (NHRC) found that "they (transgenders) do not get justice from police if they approach," and even in cases of gang rape, they cannot go to the police for assistance, for fear of harassment and their inability to pay bribes.”
Thus, along with more effective legislation in place, it is also more important to sensitise and educate the police officials at every level.
THE NEED FOR STRINGENT LAWS AND SPECIAL PROVISIONS FOR THE TRANSGENDER COMMUNITY FROM SEXUAL OFFENCES
In 2013, the Criminal Law Amendment Act, 2013 was lauded for expanding the purview of the offence of rape to include other forms of penetration. While extremely important at the time, the provision fails to encapsulate the changing gender roles and identity in India. Thus, Section 375 of the Indian Penal Code, 1860 does not protect transgender persons from rape or other sexual offences. Although the question of gender-neutrality of rape laws has been raised before the Supreme court before in cases like Sudesh Jhaku v KC Jhaku, no change was observed in existing laws.
In 2019, the Transgender Persons (Protection of Rights) Bill, 2019, though introduced to protect the third gender of India, was faced by harsh criticism and backlash. While a step up from the former 2018 version of the bill, the passed bill also endangered transgender persons in India. LGBTQ activists from around the country voiced out their concerns and criticisms about the bill, while highlighting how certain provisions of the bill may be “insensitive” towards the community.
Section 18 (d) of the Bill lays down a punishment of 6 months, only extending to 2 years. By doling out a punishment of a mere 6 months-2 years, the Bill has categorised this grave crime with various “petty offences”, considering the term of imprisonment. It is also significant to note, that in the case of a woman being raped, the term of imprisonment can be extended to a lifetime.
Thus, by failing to protect transgenders and the discrimination that the Bill indirectly promotes, it contravenes Article 14 and 21 of the community and its victims. The lack of stringent laws also contravenes the NALSA Judgement which provides them with equal protection under the law. The judgement recognised the transgender community as the third gender to bring them under the umbrella of equality before the law and to reduce harassment and the prejudice that they often face.
Therefore, it becomes pertinent to amend existing laws and introduce new special laws that would help the transgender community get justice against this ever-increasing social evil. Representation of members of the LGBTQ community in law-making bodies would also result in more gender-neutral laws that would uplift the community.
Transgender persons are no stranger to India and its culture. The third gender of India has existed in the country since ancient times, gaining representation in ancient fables and mythological tales. It is disappointing that even after aeons, the transgender community has not only failed to gain equal representation and a place in society, their lives continue to be in danger.
With the development of society and evolving gender narratives, India must strive to cater to its every citizen. Sharing these sentiments, in 2019 KTS Tulsi introduced a bill to introduce gender neutrality to the penal offences of sexual nature.
The bill read, “the intention of the bill is not to undermine the experiences of women subjected to rape and discrimination. But, as society matures, we must develop empathy for all and this includes male and transgender rape victims also”
While this was a step in the right direction, India must yearn for more voices like this. The country needs representation and a legal system that will deliver what is rightfully theirs.
Footnotes  Seeking equal protection for transgenders from sexual crimes, plea moved in Supreme Court, DNA, (Sep 26, 2020, 08:34 PM), https://www.dnaindia.com/india/report-seeking-equal-protection-for-transgenders-from-sexual-crimes-under-indian-penal-code-plea-moved-in-supreme-court-2845592, Accessed: Jan 06, 2020  National Legal Services Authority v. Union of India (SCC 2014 5 SC 438)  Esha Mitra, India's rape laws don't cover transgender people. They say it's putting them at risk, CNN, (Dec 09 2020, 08.51 PM), https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html, Accessed: Jan 07, 2020  Sudesh Jhaku v K C Jhaku 1998 Cri LJ 2428.  Supra Note 2  Rishabh Chabaria, Abhigyan Tripathi, Transgenders and Rape Law: Is equal protection of law still a pipe dream?, The Leaflet, (May 23 2020), https://www.theleaflet.in/transgenders-and-rape-law-is-equal-protection-of-law-still-a-pipe-dream/#, Accessed: Jan 07, 2020
Meghna Mishra & Yadu Krishnan Muraleedharan,
Symbiosis Law School, Hyderabad.