TRANSGENDERS AND RAPE LAW: IS THERE A NEED FOR REFORMATION

Author- Phalguni Garg*

Editor- Shuvasmita Nanda

ABSTRACT

The need has now arisen with the changing times to think about being gender-inclusive in all respects going beyond the obsolete binary system. This calls for widening our thinking and approach for maintaining a harmonious balance in society by incorporating all gender in all fields. The recognition of transgender people was a very progressive step, but a significant setback was their exclusiveness from some essential regions. One such area identified is that of 'rape.'

The struggle for including men as rape victims under the law is not yet won, and there has arisen a need to start yet another struggle to recognize the protection of transgender people under such circumstances. Therefore, this is an attempt to contribute a little to the community by critically analyzing the existing legal framework, the agony of the people, and determining how their conditions can be improved.

The transgender community has been thriving in being subject to the same legal and fundamental rights as cis-gendered people. However, when it comes to their protection against rape, the Indian Penal Code remains silent. The Transgender Persons (Protection of Rights) Act, 2019 only proves to be a tangent in providing protection. This research paper's central problem reflects the discrimination that persists against the transgender community, which is visible per se when the legislation on the issue is pierced through.

Keywords: Rape, transgender, sexual offence, binary gender spectrum

INTRODUCTION

The existence that was recognized in Ramayana and Mahabharata's times got recognition in the eyes of the law only after the passing of the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter called the 'Act') in the 21st century. It took decades for the transgender community (hereinafter referred to as 'trans') to win the battle of recognition in the Indian legal system. A handful, however, welcomed the Act with an encomium, but a majority still remained dissatisfied. This discontent resulted from multitudinous factors [1] falling in either of the two categories; the issue not being addressed in the Act or taken up too lightly.

For instance, section 18 of the impugned Act considers sexual assault as a minor offense which will do only a little to shield the trans from such offenses. The paramountcy of this issue cannot be denied because, the third gender, even after being recognized, there is still a grey area in the law that predominantly emphasizes only the 'men and women.

Undoubtedly, the Indian Penal Code, 1860 (hereinafter called 'IPC') provides spectacular protection and remedies to the female rape victims but recklessly ignores the agony of the male and trans rape victims. The law is based on the presumption that in rape, only a woman can be a victim, and a man can only be a perpetrator, which is miles away from the harsh reality. This paper digs deep into the issue and addresses the torment of the trans rape victims.

The paper progresses in first finding out the provisions provided by the existing laws and then subsequently move towards identifying the loopholes in those laws, then analyses the impact of those loopholes on the trans community and concludes with some recommendations and suggestions.

DOES THE IPC PROTECT THE TRANS RAPE VICTIMS?

The very instance we think of rape, the only spectrum of victims we empathize with is ‘women.’ The statistics of the National Crime Report Bureau record show a massive number of women victims of rape[2] stipulating that the present women face such inflictions more than any other community. However, the more disturbing thing is the legal stance that the victims of genders other than women have when they are subject to a heinous crime; their plight is of another intensity because the hunt for a legal stance in such a case is still on! Section 375 of the IPC straightaway declares a woman as a victim and a man as a perpetrator.

Until now, it is a woman-centric law instead of being victim-centric law[3]. However, the problematic scenario of sexual offenses beyond the hetero-normative spectrum is rampant these days. The absence of any legal protection to the trans leaves them in a tight helpless fix. This indeed reflects discrimination to the male and trans victims, which is definitely not what our Constitution calls for.

In Criminal Justice Society of India v. Union of India[4] too, it was argued by the petitioner:-

Crime has no gender, and neither should our laws. Women commit a crime for the same reasons that men do. The law does not and should not distinguish between criminals, and any person who has committed an offense is liable to punishment under the Code[5]. The Supreme Court appreciated the argument put forth by the petitioner and left it to the Parliament to legislate on the issue. However, it should be considered that there has been no such amendment in the existing Code, protecting the rights of the trans.

In instances of being victimized to rape, the trans find themselves in a sequestered space with absolutely no shelter of law. This results in immense mental agony to those victims, and a vast number of cases also go unreported. The UNDP’s Report on Hijras/Transgender [6], 2010, suggests that 46% of trans in India were reported to be raped in the year 2009, and 44% were reported to be physically abused. This is a colossal number sufficient to call for the attention of the lawmakers to legislate on the issue to protect their interests. The Supreme Court has emphasized in the case of National Human Rights Commission v. State of Arunachal Pradesh[7] that the rape law must cover homosexuals, transgender, and transsexual persons.

In Reepak Kansal v. Union of India & Anr. [8], the petitioner, through his writ petition, had alleged that there are no penal provisions in the country to protect the trans from sexual offenses [9]. The Bench consisting of Chief Justice S.A. Bobde, Justices A S Bopanna, and V Ramasubramanian identified the plea as a good cause and issued a notice to the Central government for making modifications to the criminal law to protect the trans community from sexual violence [10].

The existing rape laws in the IPC make it impossible for the trans to get justice post being inflicted by rape [11] . Following the Nirbhaya case that shook the entire country from the very core came the Criminal Law (Amendment) Act, 2013 [12] that imposed stricter penalties to those who are guilty of crimes such as rape, acid attacks, stalking and voyeurism [13] . But as evident from the current laws, nothing much has been done for the protection of other genders. Unambiguously, the provision for rape is not in conformity with the central idea of the Indian Constitution, equality before the law and equal protection of laws [14] .Though there is an Act protecting the trans, let’s examine how far are the provisions of the Act sufficient in addressing the issues of trans rape victims.

PROTECTION TO THE TRANS RAPE VICTIMS UNDER THE ACT

15 April 2014 is a date of recognition in the history of the battles of the trans people. On this day, the Supreme Court in the NALSA v. Union of India [15] (hereinafter referred to as the NALSA Judgement') speaking through J. K.S. Radhakrishnan gave a landmark judgment that revamped the legal status of the trans in the country. The trans was given the right to self-identification as a third gender and were entitled to the same constitutional and legal rights as any other citizen. The Court further directed the Central and State governments to take the appropriate actions to protect the rights of the trans and further promote their interests [16].

To give a legislative shape to the judgment mentioned above, the Ministry of Social Justice and Welfare, through its Minister, Mr. Thaawarchand Gehlot, introduced the Transgender Persons (Protection of Rights) Bill, 2019 in Lok Sabha in July 2019 [17]. The Bill was passed in the Parliament and consequently received the President's assent, despite receiving copious refutations from the trans community and several other Activists.

The Act, which sought to protect trans rights, in reality, according to some trans activists, does the opposite [18]. The Act kicked off a fresh round of outages in the community itself that it seeks to protect. Grace Banu, a trans activist, even associated the Act as a 'murder of gender justice' [19].

This was the level of criticism that the Act attracted. While some areas in the Act have loopholes and make the Act ineffective to a certain extent, one such loophole in the Act that deals with rape and its punishment. Section 18(d) under Chapter VIII (Offences and Penalties) of the Act mentions punishment for abuse.

It elucidates that the culprit would be punished of imprisonment for a term which shall not be less than six months but which may extend to two years and with fine to whoever who harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse [20].

The provision described above does not expressly provide for 'rape'; the mention of sexual assault seems sufficient to come into play whenever such an offense is inflicted. However, before any opinion is formed in furtherance of the provision, it is essential to analyze it critically. It is worth noting here that the lawmakers are very well aware that the trans are not an exception when it comes to sexual assaults. Nevertheless, what bothers us, first, what is meant by the term' sexual abuse' in the Act, and second, why the penalty imposed is of such low intensity.

The Act of the lawmakers prima facie appears to be careless and negligent when it is found that it was not considered essential to define the term 'sexual abuse' that is open to multiple interpretations. While there is no express section for criminalizing rape against a trans, the undefined term adds to the already distressing situation's ambiguity. The section at first imposes less strict penalties and then leaves it to a vague and cryptic interpretation.

Amrita Sarkar, a trans activist, voiced why should rape laws that protect women differ from those that protect trans women [21]. The protection given to a cis-gendered woman is over seven years [22], but for trans, it only extends up to 2 years, and a fine of Rupees 10,000. The punishment so prescribed is lesser than the minimum punishment for the perpetrator of rape of a woman. Instead of providing adequate protection to trans rape victims, it seems to take the edge off the crime's seriousness and gravity.

Moreover, it implies that the trans lives are dispensable and of marginal value. Such a legal provision undermines the Court's ruling in the NALSA Judgment that recognized the trans as the 'third gender' entitled to all the fundamental rights. It appears to be a clear-cut violation of Article 14 of the Constitution discriminating between cis-gendered women and trans women rape victims. This takes us to the conclusion that the law does not provide adequate protection to trans rape victims. This is likely to lead to many troubles in the life of such victims.

IMPACT OF SUCH LENIENT PROVISIONS

It is evident from the above discussion that the IPC provides absolutely no protection, and section 18 of the Act does no justice to such victims. This leniency is bound to result in several fatal consequences. Some of them are discussed below.

1. Signs that their lives are of lesser importance

Swati Bidhan Baruah, one of India's first transgender judges, stated that imposing lighter sentences on the perpetrators of trans rape victims in a way implies that their lives do not matter [23]. The gravity with which the victim is destroyed is the same, whether it is the trans rape victim or the woman belonging to the binary gender spectrum. Already the trans had to struggle a lot to get recognition of their legal rights and identity. The provision for sexual assault seems to be a mockery of such victims.

2. Less fear in the minds of the perpetrators

According to the Centers for Disease Control and Prevention (CDC) Reports, [24] lesbian, gay, and bisexual people experience sexual violence at similar or higher rates than straight people [25]. With such a frequency, it is vital to keep the fear of penalty alive in the perpetrators' minds so that the number of such crimes can be cubed. However, the punishment of a maximum of two years is significantly low to curb the rate of such crimes. Moreover, since there is no express provision for 'rape,' it is likely to happen that accurate statistics of such crimes will not be available.

3. Increased chances of being targeted

Since the penalty is very low, it does not impose immediate and stringent fear in the perpetrator's mind. Such happenings are already very high, and this provision will not do much to curb the incidents. A report by the National Coalition of Anti-Violence Programs (NCAVP) [26] is worth mentioning here that states that trans individuals are two times more likely to be abused and harassed in intimate relationships [27]

.

DO WE NEED GENDER NEUTRAL LAWS IN INDIA?

The need for gender-neutral laws would primarily arise concerning the current scenario of society. Unfortunately, whenever it is thought of as gender neutrality, it is only the equality amongst those falling within the binary gender spectrum. However, what about those who fall outside this binary category and have been given the right to identity and all the fundamental and legal rights? The mere piece of legislation, i.e., the Act, seems to do nothing much for them. The primary issue that springs up is that there is a need to recognize the 'third gender' in all respects.Wherever there is mention about gender equality, we only empathize with men and women, effortlessly ignoring the trans.

For instance, the Protection of Children from Sexual Offences Act strikes a balance of gender equality for protecting children of all genders under the age of 18 years. Nevertheless, there is no provision for the protection of the marginalized trans community [28]. This leads to the conclusion that still there is some form of unacceptance in the minds of the people for considering the trans as a part of the society and a subset of the gender spectrum.

There is no denying the fact that there is a need for the protection of women who are equally vulnerable to such crimes. Nevertheless, for this sake, protecting the people from another gender cannot be put at stake. Coming back to the question, whether there is a need for gender-neutral laws in our country or not? The answer goes in the affirmative that the laws need to be gender-neutral but along with an assertion that the laws have to be gender inclusive. For a progressive society like ours, we need to place each gender category on an equal footing.

Gender inclusiveness saw the rays of reality when Mr. KTS Tulsi, a private member, introduced the Bill on the 12th of July 2019 seeking to amend the criminal law and make the sexual offenses listed therein gender neutral [29]. The Statement of Objects and Reasons of the Bill mentioned the need to empathize with the male and trans rape victims [30]. However, to ourdiscontent, the Bill could not be transformed into an Act. The plight of the trans community, therefore, still continues.

RECOMMENDATIONS AND CONCLUSION

The above discussion shows that the trans community is still miles away from what they deserve. The Indian legislation is unable even to fulfill their just demand. Are they asking for something extravagant or unjust? The answer is in negation so long as the Constitution guarantees the right to equality to every citizen of the country. The job of providing

social security to them is half done.

Below are some recommendations that may be considered while tackling the issue:-

1. Talking strictly about protecting trans rape victims, an amendment needs to be made to the Act explicitly dealing with the offense of rape and prescribing strict penalties. It should be done by bearing in mind that 'crime is crime irrespective of the gender of the victim.'

2. In line with the above recommendation, it is also essential for the upcoming years that all gender-biased legislation is made gender-neutral, or rather gender-inclusive, so that equal treatment is given to the men, women, and the trans at once.

3. It is also recommended that such progressive steps should be taken by the government or the lawmakers so that the trans community gets adequate acknowledgment and identification. The fact that there is a world outside the binary gender spectrum consisting of the human beings of the third gender should be normalized.

All such acts must be prohibited that downplays the respect of the trans community. We shall strive to protect the marginalized section of our society and ensure that no section of the society remains marginalized and each of them is on an equal pedestal. The concept of 'equality before the law' that weaves the Indian Constitution shall be adopted at every stance. It shall be within every individual's soul not to do any act that infringes this right of any other individual. The Constitution of India is for every citizen of the country, whether male, female, or trans.

REFERENCE

1. FEMINISM INDIA, https://feminisminindia.com/2019/08/05/critique-transgender-persons protection-of-rights-bill-2019/ (last visited Mar. 15, 2021).

2. NATIONAL CRIME REPORTS BUREAU, https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf (last visited Mar. 15, 2021).

3. Shashwat Bhutani, The Lacuna in Law: Desideratum of Gender-Neutral Rape Law, IJLPP (last visited Mar. 24,2021, 3:20 PM) https://ijlpp.com/the-lacuna-in-law-desideratum-of-gender-neutral-rape-laws/.

4. Writ Petition (Civil) No. 1262/2018.

5. LIVE LAWhttps://www.livelaw.in/pdf_upload/pdf_upload-357321.pdf (last visited Mar. 24, 2021).

6. UNDP, https://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social_exclusion.pdf (last visited Mar. 24, 2021).

7. (1996) 1 SCC 742.

8. Writ Petition (Criminal) No. 290/2020.

9. THE HINDU, https://www.thehindu.com/news/national/no-penal-provision-to-protect-transgenders-from-assault-plea/article32837641.ece (last visited Mar. 29, 2021).

10. THE LOGICAL INDIAN, https://thelogicalindian.com/lgbtq/sc-trangenders-law-24286, (last visited Mar. 29,2021).

11. CNN, https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html, (last visited Mar. 29, 2021).

12. MINISTRY OF LAW AND JUSTICE, https://www.iitk.ac.in/wc/data/TheCriminalLaw.pdf, (last visited Mar. 29, 2021).

13. ILO,https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/93631/109535/F245345440/IND93631.pdf, (last visited Mar. 29, 2021).

14. INDIA CONST. art. 14.

15. Writ Petition (Civil) No.604 OF 2013.

16. SOUTH ASIAN TRANSLAW DATABASE, https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/ (last visited Mar. 29, 2021).

17. PRS INDIA, https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019 (last visited Mar.24, 2021).

18. Sushmita Pathak, India Just Passed A Trans Rights Bill. Why Are Trans Activists Protesting It? (last visited Mar.24, 2021, 3:22 PM) https://www.npr.org/sections/goatsandsoda/2019/12/04/784398783/india-just-passed-a-trans-rights-bill-why-are-trans-activists-protesting-it.

19. Id.

20. MINISTRY OF LAW AND JUSTICE, http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf (last visited Mar. 29, 2021).

21. Ankita Ramgopal, Rape laws: Why is sexual violence against India’s transgender community not being taken seriously, SCROLL.IN (Mar. 29, 2021, 5:20 PM) https://scroll.in/article/868907/rape-laws-why-is-sexual-violence-against-indias-transgender-community-not-being-taken-seriously

22. Indian Penal Code, 1860, § 376.

23. CNN supra note 11.

24. NISVS, https://www.cdc.gov/violenceprevention/pdf/cdc_nisvs_victimization_final-a.pdf, (last visited Mar. 29, 2021).

25. HUMAN RIGHTS CAMPAIGN, https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community, (last visited Mar. 29, 2021).

26. WHITE CODE VIA MEDIATION AND ARBITRATION CENTER, https://viamediationcentre.org/readnews/MTc=/Punishment-for-Sexual-Offences-under-the-Transgender-Persons-Protection-of-Rights-Act-2019-Are-they-really-Progressive#_ftn15, (last visited Mar. 29, 2021).

27. Id.

28. Ankita, supra note 21.

29. http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-E-12719.pdf

30. Rishabh Chhabaria and Abhigyan Tripathi, Transgenders and Rape Law: Is equal Protection of Law still a pipe dream?, THE LEAFLET (Mar. 29, 2021, 5:29 PM), https://www.theleaflet.in/transgenders-and-rape-law-is-equal-protection-of-law-still-a-pipe-dream/#.

*The Author is a 3rd year, B.A.LL.B. (Hons) student at Amity Law School, Noida, Amity University, Uttar Pradesh.

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.