The Supreme Court on Monday issued notice to the central government on a public interest litigation (PIL) that demanded equal protection under the law for sexual offences against transgender persons.
The petition, filed by advocate Reepak Kansal, challenged the constitutional validity of Section 354A (punishing sexual harassment) of the Indian Penal Code (IPC), specifically clauses (i), (ii) and (iv) of sub-section (1) as it excluded transgender persons from being treated as victims of sexual harassment.
“There is no provision or section in the Indian Penal Code (IPC) which may protect the third gender from the sexual assault by male/ female or another transgender,” stated the petition.
The bench, headed by Chief Justice SA Bobde and also comprising justices AS Bopanna and V Ramasubramanian, appreciated the thought behind the petition. The bench said it was a “good case” that needed hearing.
Arguing for Kansal, senior advocate Vikas Singh told the bench that in 2014, the top court passed a landmark ruling by recognising members of the transgender community as the third sex and confirming the rights of the marginalised community. “This gave them a distinct identity. However, they are still deprived of equal protection of law when it comes to sexual offences they face from within the community and outside,” he argued.
The bench asked Singh to file details of cases where the court passed orders in the absence of laws to deal with issues. In the hearing conducted via video conferencing, the bench referred to the framing of the Vishaka guidelines to deal with sexual harassment of women at work places in 1997 and the decriminalization of homosexuality in 2018.
“In spite of declaring transgender people to be a ‘third gender’ by this court, there is no provision/ section in the Indian Penal Code which may protect the third gender from the sexual assault by male/ female or another transgender,” the petition said.
The petition said that the motive behind the 2014 judgment was to grant “equity and equality” to members of the transgender community and equal protection before law. “However, this was not being realized under the sexual harassment law contained under Section 354A IPC. This amounted to violation of Article 14 (right to equality) and Article 21 (right to life and liberty) of transgender persons in being treated differently by the law,” the petition added.
In November 2019, Parliament passed the Transgender Persons (Protection of Rights) Act that laid out the rights and protections for the marginalised community.
But Section 18(d) of the act made sexual offences against transgender persons punishable with a minimum term of six months, extendable up to two years. The act used the term “sexual abuse” and failed to make any distinction between the various offences under this category making sexual harassment, abuse or rape, all punishable with maximum term of two years. Activists argued that this section was discriminatory because IPC provisions for violence committed against women is up to seven years.