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Section 354A Of The Indian Penal Code Should Apply To Transgenders: Delhi High Court
Can transgender victims of sexual harassment file a case under section 354A of the India Penal Code? The answer is in affirmative. Recently, the Hon'bleBench of the Delhi High Court comprising Justice Siddharth Mridul and Justice Sangita Dhingra Sehgal began to hear contentions from both the sides. The petitioner was assigned “male” gender at birth, but later she identifies herself as a “woman”.
In view of the petitioner’s application seeking non-disclosure of her identity, the court, for the purposes of this case, assigned her the name “Anamika”.
Although the petitioner levelled criminal allegations against the accused and said the police were unwilling to register an FIR, the latter informed the court that the complaint was civil in nature. Thus, she pleaded before the High Court of Delhi alleging that the statutory authorities did not take up her case due to her sexuality.
The petitioner knew that she was sexually harassed by the male students on campus because of her sexuality and identity, and same was the reason for the police to refuse registration of FIR under section 354A of the Indian Penal Code. Thus, she could not have legal recourse as a transgender woman either. According to her, section 354A of the IPC is unconstitutional to the extent that it does not protect a person who does not conform to the stereotypical and binary notion of a woman.
Subsequently, she contended that the said section is in violation of her fundamental rights guaranteed under Article 14,15 and 21 of the Indian Constitution. Taking support of the case National Legal Services Authority vs Union of India (2014) 5 SCC 438, she said that the discrimination is unjustified.
As the Union government persisted being silent on the issue, the Delhi Police registered an FIR under section 354A of the IPC to initiate proceedings in the instant case. The Court concluded saying that the FIR had to be registered under section 354A of the IPC against the accused without any discrimination. The learned counsel appearing for the petitioner did not seek anything further, and the writ petition was duly dismissed.
The High Court delivered this order in spite of the disarray in respect of Transgender Person (Protection of Rights) Bill, 2018 passed by the Lok Sabha. Many across the country expressed dissent on the bill because of the denial of the right to self-identification to the transgenders by forcing them to go through a District Screening Committee.
The Bill requires the transgenders to produce a medical certificate to confirm the SRS (Sex Reassignment Surgery) before a District Magistrate, thereby declaring their gender, whether it is male or female. According to ‘Queer Collective’, a students’ body from TISS, begging and inducing for forced labour are offences as per the provisions the act without recognising the families of choice and traditional livelihood of the Mangti and BadhaiToli of the Hijra/Kinnar communities.
