In a recent criminal quashing application, the Andhra Pradesh High Court was called upon to examine whether the protection under Section 498A of the Indian Penal Code, 1860 (‘IPC’) may be extended to a transgender woman. Section 498A of the IPC lays down the offence of cruelty where such cruelty is inflicted on a woman by her husband or any of his relatives. The aforementioned offence is punishable with imprisonment for a term which may extend to three years as well as fine.
The quashing application in the case at hand was filed pursuant to a criminal complaint by a transgender woman alleging that her partner’s parents harassed her by implicating false cases on her, abusing her with obscene comments and further threatening to kidnap her. It is the case of the accused that a plain reading of section 498A requires the complainant to be a ‘woman’ and therefore, these allegations by a transgender woman cannot be sustained under the law.
While the micro level scrutiny of the facts and merits of the case warrants closer judicial examination, it is first pertinent to establish whether a transgender woman can be recognised as a complainant under the existing law.
In the present case, the averment of the accused, which takes a narrow interpretation of the law, is problematic since it restricts the definition of women to cisgender women only. Watering down the law in this manner leaves transgender women with little legal protection and no recourse in instances of such abuse. It also denies transgender persons the right to equality before law and equal protection of law, guaranteed under Article 14 of the Constitution, as well as the right to live with dignity espoused under Article 21 of the Constitution.
The existing law and its inadequacies
The Supreme Court’s watershed judgement in NALSA versus Union of India (2014) recognised transgender persons as the ‘third gender’, thereby extending legal recognition and all fundamental rights to the community. The court stressed on the importance of the right to dignity by recognising one’s gender identity within the ambit of right to life under Article 21. It also was noted that denying equal protection of law to the transgender community would make them extremely vulnerable to violence and sexual assault in public places, at home and in jail.
Thereafter, the Delhi High Court, in a welcome decision in 2018, acknowledged the right of a transgender person to seek protection against sexual harassment under Section 354A (sexual harassment) of the IPC. By lending such a purposive interpretation to the existing law, the court bridged the gap between law and life so as to mete out justice to the members of the transgender community.
While the NALSA judgement and the subsequent Transgender Persons (Protection of Rights) Act, 2019 seek to secure the rights of transgender persons by prohibiting all forms of discrimination and enabling equal opportunity for them, instances of apathy and violence against trans persons is still a commonplace in India. Section 18 of the Act provides that any person who harms, injures or endangers the life, safety, health or well-being or a transgender person, whether physical, mental or emotion, shall be punished with imprisonment for a minimum period of six months which may extend to two years and a fine. The punishment provided under the Act is therefore lesser than the punitive sanction contained in section 498A of the IPC, even though the degree of cruelty may be identical in both cases.
The marginalisation of the transgender community on account of their sexual orientation and gender identity has made them susceptible to the risk of violence and ill-treatment for decades. Studies indicate that transgender individuals experience a dramatically high prevalence of intimate partner violence as compared to their cisgender counterparts.
Due to the internalisation of such stigma and systemic discrimination, victims from the community encounter several hurdles on the road for access to justice. The lack of documentation of crimes against transgender persons is also indicative of how sexual minorities and transgendered people are largely excluded from criminal record keeping, and are more likely to forgo seeking legal assistance on account of the fear of further humiliation within the justice system.
Since the dynamism of law is rooted in its power to reflect socio-cultural changes, there is an urgent need to progressively interpret and amend penal codes for the purpose of ensuring real inclusivity for transgender persons. Provisions within the IPC which seek to protect women from sexual and other forms of abuse must be extended to trans women. Further, the 2019 Act should clarify that the term ‘women’ used in other legislations includes ‘trans women’ since the absence of such a clarification disproportionately deprives trans women of legal protections and other benefits available to women simpliciter. This need to suitably amend criminal laws for protecting transgender persons from sexual violence has also been reiterated by the Supreme Court pursuant to a public interest litigation petition filed before it.
In addition to the above, appropriate sensitisation programmes must be put in place for police and law enforcement personnel to dismantle their trans phobic beliefs and allow them to better protect vulnerable communities, including sexual minorities.
While granting legal recognition to the transgender community has cracked the glass ceiling, India still has a long way to go before the long-oppressed minority gender becomes ‘equal’ at last.