Author: Sparsh Gupta
A special law treating the offence of sexual harassment as a penal offence was inserted in Section 354 A, IPC 1860 related to sexual harassment by way of Criminal Law (Amendment) Act, 2013, providing as under :
- A man committing any of the following acts-
- physical contact and advances involving unwelcome and explicit sexual overtures; or
- a demand or request for sexual favours; or
- showing pornography against the will of a woman or
- making sexually coloured remarks, — shall be guilty of the offence of sexual harassment
- Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of subsection (1) shall be punished with rigorous imprisonment for a term which may extend to three years or with fine or with both.
- Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to 1 year, or with fine, or with
The applicability of Section 354A wrt. transgender people has been recently affirmed in the case of ‘Anamika v. Union of India and others’[1] , whereby it has been cleared stated by the Hon’ble Supreme Court of India as under :
“… if a cognizable offence under the provision of Section 354 A IPC , in particular sub clause (i) , (ii) and (iv) is made out on the complaint of a transgender, the same shall be registered in accordance with law…”
The need of the said decision arose due to lack of knowledge about transgender people, their rights, their legal status etc. As it has been a taboo to talk of transgender people in society, but one needs to legally appreciate the legal persona of transgender people. It is to be noted here that much effort has been done in broadening the definition of transgender people in the Transgender Persons ‘Protection of Rights’ Bill, 2018 by defining ‘transgender person’ under Section 2(k) of the aforesaid bill as under :
Section 2 (k) “”transgender person” means
a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
Conferring this definition of transgender people took a span of more than 140 years of legal and traumatic battle as during the reign of British, the Criminal Tribes Act, 1871 , was enacted to administer and govern the acts of transgender community, whereby their community was deemed as a criminal and were termed as addicted to systematic commission of non bailable offences.
The landmark judgment in case of National Legal Services Authority v. Union of India[2] stresses that prior to Criminal Tribes Act, Section 377 IPC was incorporated in IPC, 1860 and almost highlights Section 377 IPC has been used as an instrument of harassment and physical abuse against transgender persons.
Transgender people are subject to a certain level of cruelty or harassment just because of their gender which they did not opt for at the time of their birth. It is a rare group of people who are born with bodies which have features of both male and female genders as a consequence of being born in this group creates a heap of problems for them viz. social recognitions, restrictions, harassments, abuses etc.
After going through the above data it seems that Article 1, 6 , 7 and 12 of Universal Declaration of Human Rights (which provide that all human beings are born free, equal in dignity and rights, recognizing the right to treat everyone is equal before law without any discrimination) as well as Article 7, 9, 16 and 17 of International Covenant on Civil and Political Rights have a very less impact on society and how it behaves towards transgenders.
It has been observed in the case of National Legal Services Authority v. Union of India[4] that certain provisions of Indian Constitution have not been fully adopted by the society resulting in inequity of transgender people.
Article 14 provides for equality before law of ‘any person’ and as per the society norms, it is experienced that the transgender persons were never included in the broadest meaning of the term ‘any person’, as a result of which they were subjected to extreme discrimination despite the constitutional guarantee of equality. Similarly, Article 15 assures that there shall be no discrimination caused on the ground of sex, caste, creed, race, religion but the access of any public place by transgender people is considered as a sin and heinous. It is further to be noted that as per Article 16 every citizen has been accorded equal rights of employment in public offices but that has not been the case for transgender people.
As far as the applicability of fundamental rights is concerned the very first right incorporated under Article 19 (1) (a) freedom of speech and expression is not considered by transgender people as their right because expressing themselves freely as transgender people or their way of living etc further subjects them to discrimination and their right to live with dignity is violated which is guaranteed under Article 21 is shattered .
In such circumstances, Government steps in to keep the hopes of transgender people alive followed by judicial activism. The role of government in uplifting the status of transgender people has been remarkable over the years and as wisely as said by Ronald Reagan ‘Government exists to protect us from each other..’[5] The government has provided the transgender people the voting rights and right to contest elections, form political parties and it was with the acts of such government that one Shabnam Mausi became an inspiration to the whole transgender community as she became the first transgender Indian to be elected to public office (MLA). She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003. There are many other instances empowering transgenders viz. Apsara Reddy became the first transgender woman to be appointed as the national general secretary of All India Mahila Congress (AIMC)[6]. Sathyasri Sharmila became India’s first transgender lawyer in Bar of Tamil Nadu and Puducherry. Joyita Mondal became the first judge as she was appointed at Lok Adalat in North Bengal in October 2017. Prithika Yashini became the first transgender sub-inspector Manabi Bandopadhyay, who became the first transgender college principal of Krishnagar Women’s College[7] . Madhu Kinnar as India’s only transgender mayor.[8] Shreegauri Sawant was appointed as one of the goodwill ambassadors of the Election Commission in Maharashtra.[9]
All the above instances are a pointer to the testimony that the prejudice being caused to the transgender people is at a down pace and slowly India and its society are overcoming these kind of discriminatory approaches. In a move to advance the transgender community, the Lok Sabha passed The Transgender Persons (Protection Of Rights) Bill, 2018[10] on 17.12.2018 with the following key features:
- Recognizing the transgender identity and establishment of District Screening Committee for that
- Providing access to the welfare schemes, their rescue, rehabilitation, protection of rights, promotion of their
- Providing the right to be appointed in employment and right to promotion
- Providing the right to reside in the parental house
- Providing education and medical facilities
- Establishing the National Council For Transgender Persons with the direct objective to formulate policies for advancement and protection of transgender people and redress their
- Making it an offence of injuring or harming transgender people , compelling them to go into begging or bonded labour or forcing them to leave their household
These all are positive actions having a great impact on the lives of transgenders and the judicial activism strengthens these objectives by landmark decisions in the cases of National Legal Services Authority (supra) which declared the transgender people as third gender-affirming the applicability of fundamental rights on transgenders. Moreover, in another landmark case of Navtej Singh Johar vs Union of India through the Secretary[11], Ministry of Law and Justice whereby the Hon’ble Supreme Court of India decriminalized all consensual sex among adults in private, including homosexual sex.
Thus, to conclude the transgenders are a part of the community and that they should be treated as one and their upliftment helps in shaping the society of mutual cohesiveness and understanding.
[1] 2019(1) RCR (Cr) 595.
[2] 2014 (2) RCR (cr) 534
[3] https://www.prsindia.org/sites/default/files/bill_files/Transgender%20persons%20bill%20as%20passed%20by% 20LS.pdf
[4] 2014 (2) RCR (cr) 534
[5] https://www.ft.com/content/73d6ea8a-81fb-11e4-a9bb-00144feabdc0.
[6] https://www.indiatoday.in/india/story/apsara-reddy-first-transgender-woman-aimc-general-secretary-1426532-2019-01-08
[7] https://www.indiatoday.in/education-today/gk-current-affairs/story/list-of-transgenders-firsts-who-made-it-big-in- their-fields-1276415-2018-07-03.
[8] https://www.theguardian.com/cities/2015/mar/03/india-first-transgender-mayor-overcoming-prejudice-hijra.
[9] https://www.thehindubusinessline.com/news/national/ec-appoints-first-transgender-goodwill- ambassador/article26655200.ece
[10] https://www.prsindia.org/sites/default/files/bill_files/Transgender%20persons%20bill%20as%20passed%20by% 20LS.pdf
[11] (2018) 1 SCC 791.
About the Author: Mr. Sparsh Gupta is currently practicing in High Court of Punjab and Haryana at Chandigarh and Supreme Court of India and also looks after matters in CBI Courts of Haryana, Punjab and U T Chandigarh. (Area of Practice: Civil, criminal and especially contractual law revolving around real estate and other sectors.)
He is also a pro bono lawyer empanelled with Department of Justice, Ministry of Law and Justice, GoI. He is empanelled with various NGOs all over India. He has authored 2 books namely- ‘A Commentary on the Indian Contract Act’ & ‘Cruelty Against Women’.. His Research Paper on ‘The Theory of Justice with John Rawl’s Perspective was recently published by Indian Society for Legal Research in their maiden journal Changing Dynamics of Indian Legal System, 2019.
Criminal Law Research & Review 