A PIL has been filed in the Supreme Court seeking equal protection of the transgender community against sexual crimes under the Indian Penal Code (IPC).
The plea filed by Advocate Reepak Kansal highlights that there is no provision in the Indian Penal Code, 1860 to protect transgenders from sexual assault by any male, female or another transgender.
The petition states that clauses (i), (ii) and (iv) of sub-section (1) of Section 354A of IPC exclude victims of sexual harassment who are transgender persons and are thus violative of Articles 14, 15 and 21 of the Constitution of India.
The petitioner has pleaded for appropriate modifications/interpretation of the concerned provisions of the IPC in order to include transgenders and eunuchs within its ambit.
Mr. Kansal in the petition contended that in spite of the fact that transgenders have been declared to be “third gender” by the Hon’ble Supreme Court, there is no provision in the Code to protect them from sexual assault. He further stated,
"The Indian laws are for men and women and therefore, considering transgender neither men nor women, they generally could not get justice from the authorities due to lack of law / Act. The third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. The State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India."
The petition also stated that statistics show that incidents of sexual violence against transgenders indicate 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 them have been sexually abused and assaulted while in jail and custody of the police. It stated,
"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."
The petition further provided that Article 21, which is the greatest and most inclusive provision of the Constitution of India uses the term “no person” and provides that no person shall be deprived of life or personal liberty except according to procedure established by law.
Mr. Kansal seeked direction to the government to make gender-neutral laws dealing with sexual harassment mechanisms.