Trans act ‘toothless’, inclusion under rape law up to Parl: Delhi HC

The court said Section 18 of the 2019 act defines offences but offers no procedure or clarity on how victims can seek justice.

The Delhi High Court on Wednesday said the transgender protection act was a “toothless tiger” while hearing a petition seeking the recognition of rape as an offence against transgender women and transgender children under the Bharatiya Nyaya Sanhita (BNS). However, the court prima facie observed that such an expansion lies within the legislature’s domain, not the judiciary, while still asking the Centre to file its response in the petition.

Bench said expanding rape law to include transgender persons falls within Parliament’s domain; Centre asked to respond by Dec 24. (Shutterstock)

Dealing with a petition filed by one Dr Chandresh Jain, a bench of Chief Justice DK Upadhyaya and justice Tushar Rao Gedela noted that if the legislature intended such inclusion, it would have amended Section 376 of the Indian Penal Code (IPC), dealing with the offence of rape, long ago—something that has not been done so far.

Section 376 of the IPC was replaced by Section 63 of the BNS in July last year. THE BNS provision explicitly defines rape as committed by a “man” against a “woman”. It does not include the rape of men, transgender individuals, or animals. Rights of transgender individuals are largely governed by the Transgender Persons (Protection of Rights) Act, 2019.

In his petition, Jain, an advocate, has sought the inclusion of the terms “transwoman” and “transchildren” under Chapter V of the BNS, which deals with offences against “women and children”, including rape and gang rape, and under which Section 63 falls. He contended that Section 18 of the transgender persons protection act is inadequate and fundamentally flawed.

Section 18 of the act deals with offences and penalties criminalises various acts against transgender persons, including forced or bonded labour (excluding any compulsory service by the government), denial of access to a public place or refusal to provide goods, services, accommodation, employment, or education and physical, sexual, verbal, emotional, or economic abuse. It provides that anyone committing these offences shall be punishable with imprisonment of 6 months to 2 years, and a fine.

However, Jain claimed, in his petition, it criminalised the offences, without establishing a proportional, structured, or constitutionally consonant penal framework and failed to define specific offences, refer or link to existing penal laws (such as the BNS, and only provided for a generic punishment for up to 2 years.

The petition, argued by advocates Anant Sharma and Sanjeev Kumar, further said that the exclusion of transgender persons from statutory definitions of “woman” or “victim” in key statutes such as the BNS, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Protection of Women from Domestic Violence Act, 2005, and the Immoral Traffic (Prevention) Act, 1956 results in denial of equal protection of the laws and is violative of Articles 14 (equality before the law), 15 (discrimination on grounds only of religion, race, caste, sex, or place of birth or any of them) and 21 (right to life and personal liberty ) of the Constitution.

During the hearing, the court also described Section 18 of the transgender persons protection act as a “toothless tiger,” noting that while it defines the offence, it fails to establish any procedural framework for victims to seek justice.

“Section 18 seems to be absolutely toothless. They’ve (legislature) just put the offence. No rules regarding who is going to file the complaint, who is going to entertain it. The rules do not prescribe anything. Unfortunately. The rules are bereft of procedure as to the complaint has to be lodged by whom, who’s going to file it. They’ve left it (offence) just like something toothless tiger,” the court said.

Though the court asked Centre to file its response before the next date of hearing (December 24) and also appointed senior advocate N Hariharan as an amicus curiae, it said, “This interpretation would perhaps not be possible. That is our prima facie opinion. It’s legislative policy. If that had been possible, perhaps Section 376 of the Indian Penal Code (IPC) would have been interpreted long ago to include transgender women also. It has never been done.”

It added, “It is ultimately left to the legislature to formulate a policy. That is how the enactment (of 2019) was made. So if we desire, we feel that yes, these offences prescribed in Section 63 should include transgender women and children, the call has to be taken by the legislature, keeping in view the principles of criminal law that no one can be punished for an offence which is not defined by the rule-making authority. Perhaps a better course would have been to ask the petitioner to make a representation to the government.”