A plea has been preferred in the Supreme Court seeking equal protection of laws to the transgender community from sexual crimes in context of the Indian Penal Code.
The plea states that there is no provision or section in the IPC which protect the third gender from sexual assaults/harassment by males/females and from other transgenders. Clauses (i),(ii) and (iv) of sub-section (1) of Sec 354A of the IPC excluded victims of sexual harassment who are transgender.
“The Indian laws are for men and women and therefore, considering transgender neither men nor women, they generally do not get justice. The third gender 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 grounds of gender, violating Article 14 to 16 and 21 of the Constitution”, said the Advocate who filed the petition.
Article 14 of the Constitution states that the State shall not deny to any person equality before the law or equal protection of law within the territory of India. This being gender neutral provision it does not restrict the word ‘person’ to binary genders of male & female and the transgenders fall within the purview of the term ‘person’.
Pointing to Article 21, the plea states that the ‘greatest and most inclusive constitutional provision is Article 21 that states that no person shall be deprived of life or personal liberty except according to the procedure established by law which is commonly known as “Right to Life” which also includes ‘Right to live with dignity’.
In a celebrated case, National Legal Services Authority v. Union of India, the Supreme Court granted recognition to the transgenders as “persons” under Article 14 of the Constitution. The present plea states that despite declaring transgender to be a third gender, there is no provision or section in the Indian Penal Code which protects them from sexual assault/harassment.
The plea prays for direction to make gender-neutral sexual harassment mechanisms, pass an Anti-Discriminatory Bill that penalizes discrimination and harassment on the basis of gender in order to safeguard the Fundamental Rights of transgenders.