In contemporary India, the recent jurisprudence embraces the Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual (‘LGBTQIA+’) community, conferring equal constitutional and civil entitlements. There remain incongruities between the popular judicial rhetoric advocating for equal rights for the LGBTQIA+ community and its real world manifestation. The nation has advanced in acknowledging the existence of the LGBTQIA+, yet it remains stagnant in implementing gender-neutral laws pertaining to sexual offences.
This article endeavours to address these predicaments: Do laws addressing rape and sexual harassment extend their protection? Do the community’s rights fall within the purview of statutes safeguarding “women,” as dictated by the Indian Penal Code (‘IPC’), 1860 and other special legislation? Are the current legal provisions effective in materializing the rights pronounced by Indian courts into tangible action?
In India, the LGBTQIA+ community is disproportionately affected by targeted crimes.This gamut encompasses offences such as stalking, harassment, rape, sodomy, sex trafficking, and more. Unfortunately, these offences rarely surface in official crime statistics due to the scarcity of records regarding this community Justice remains elusive since the prevailing penal statutes present a dismal state of affairs despite evident human rights and autonomy violations.
That being said, there has been a gradual trend towards recognition of the transgender community, which form one component of the larger LGBTQIA+ community, in Indian society. In a first, the court in Sudesh Jhaku v. K.C. Jhaku (1996) ruled that sexual assault victims of all genders should receive equal legal protection, impliedly bringing the third gender in its fold of protection. This was followed by the 172nd Law Commission Report (2000), which recommended amending section 375 IPC (rape) to make it gender neutral. Naz Foundation v. Govt. of NCT of Delhi (2009) and the subsequent Verma Committee (2013) report similarly clamoured for a gender-neutral transformation of the penal legislation. Most notably, NALSA v. Union of India (2014), the judicial system finally took action over recommendation, embracing the concept of the “third gender” by allowing them the liberty of self-identification. However, even almost a decade after the NALSA verdict and amidst fervent claims of the judiciary to be pursuing gender parity, the administrative machinery barely acknowledges and assimilates “gender neutrality” and gender expression in practice. For instance, in January 2022, four transgenders in Tripura were irrationally detained for ‘wearing skirts,’ forced to strip to reveal their sex, and made to sign statements renouncing their gender expression, never to cross-dress or apply makeup again. And this has happened 8 years down the line of the proactive NALSA judgement!
‘Gender’ for penal offences is categorized within rather-archaic parameters of the IPC, 1860, the primary penal law in India. Under Section 10, it stipulates that “the term ‘man’ denotes a male human being of any age; the term ‘woman’ denotes a female human being of any age.” This delimits the applicability of the laws exclusively to a biological framework of ‘man’ and ‘woman’ in its judicial and academic interpretation. It disregards the “right to identification” as a man or womanpronounced in the NALSA judgment.
Offences that are academically categorized as “crimes against women” and they are scattered across the IPC. Apart from Section 377, which pertains to “unnatural sex,” all sexual offences (375 to 376E) are intrinsically gender-specific. The victim is perpetually classified as a “woman,” while the “man” is considered the perpetrator.
This language in the section inherently restricts its application to the third-gender because it forces them to conform to the definitions of “man” or “woman” based on their genitals and assigned gender, rather than their actual gender identity. Consequently, LGBTQIA+ individuals identifying as women, even if originally assigned the male gender, are precluded from seeking recourse under laws designed for women. Unless they undergo a gender-affirming surgery to fall under the definition of a “woman” biologically, the IPC thoroughly fails to protect them. Additionally, society often overlooks the violence endured by those who defy conventional notions of male and female identities, such as the hijras and kothis in India.
Any sexual offence that doesn’t align with the definition of “rape” as outlined in Section 375, irrespective of severity, can be categorized under Section 377 of the IPC, which deals with “unnatural sex.” In its current context, post the Navtej Singh Johar v. Union of India (2018) verdict which decriminalized consensual homosexual intercourse, section 377 continues to penalize non-consensual homosexual intercourse in a way that trivializes the gravity of the offence by not elevating it to the status of “rape” . It also exempts females from penalties for inflicting a sexual offense on an LGBTQIA+ individual assigned the “male” gender biologically. Moreover, the sectiondeems specific consensual acts between same-sex couples as “unnatural” and against the “order of nature,” based on their non-conformity with the “natural.” Furthermore, Section 377 inadequately addresses the comprehensive spectrum of sexual harassment or assault, as offences filed under this provision would essentially be treated as sodomy. Consequently, it neglects other forms of sexual offences, such as rape, voyeurism, stalking, trafficking, and more, which this community endures routinely. Notably, many of these offences do not meet the criteria of being “unnatural,” thus falling beyond the ambit of this section.
Despite decades of appeals from the Supreme Court and Law Commissions for reforms, concrete propositions for gender-inclusive laws concerning sexual offences remain conspicuously absent. With the introduction of three recent criminal law bills aiming to adopt an indigenous criminal system in India, the Bharatiya Nyaya Sanhita Bill, 2023, has introduced numerous provisions that are gender-neutral in language, encompassing perpetrators of any gender. However, these changes have not extended the victim’s rights to men or the LGBTQIA+ community. Furthermore, the proposed Bill intends to remove Section 377 from its content entirely. This move could worsen the situation for the community if the Bill is passed and adopted in its present form. Such a move could leave this community without recourse for sexual offences under the Indian penal system entirely. It is imperative to revise the Bill’s provisions by replacing the phrase “any woman” with “any person” or “whoever,” ensuring continued protection for this marginalized community. Beyond rectifying the gender neutrality and inclusivity concerning sexual offences as prescribed in the IPC, comprehensive amendments are equally vital across other criminal legislation to holistically recognize the substantive rights of the LGBTQIA+ community.
Another Act eliciting particular attention is the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (‘POSH, 2013’). The POSH Act 2013, although praiseworthy, only safeguards ‘women’ in the workplace.It overlooks that members of the LGBTQIA+ community can also fall victim to workplace sexual harassment. Given their status as a sexual minority, they are particularly susceptible to such forms of abuse, surpassing even the risk faced by women due to the gender dynamics. Although constitutional recognition guarantees their right to work anywhere without discrimination under the law, it does not eliminate the likelihood of discrimination in workplaces due to societal norms. The LGBTQIA+ community, perceived as outside the conventional societal norms of “normalcy,” remains exposed to heightened risks of sexual harassment in workplaces due to the predominant male-centric ethos that has yet to fully integrate the third gender as equals capable of meaningful contribution.
The absence of gender neutrality within the POSH Act has been critiqued extensively, where the LGBTQIA+ remain excluded from its umbrella of protection. The 239th Parliamentary Standing Committee attributed this omission to the majority of victims being women, thereby considering the remedy a provision sanctioned under Article 15(4) of the Constitution. This article empowers Parliament to make special provisions for socially or educationally backward citizens. Although this argument does not reasonably justify excluding men from the purview of the legislation, it does provide a persuasive rationale for including the LGBTQIA+ community, given their marginalized societal status. Recent legal progress notwithstanding, this community, especially the transgender community, is still in the process of fully integrating into society. While they have achieved legal recognition, achieving equality on par with males or females remains an ongoing journey. Thus, the socially disadvantaged status of the transgender community makes a strong case for their inclusion within the Act, congruent with the reasoning provided by the Parliament to enact special provisions under Article 15(4).
Article 21 of the Indian Constitution entitles each individual with the right to lead a life with dignity. Laws penalizing sexual offences should not selectively safeguard one gender. Crafting such crucial laws in a gender-specific manner evidently infringemes of the right to a dignified life of this community by exposing it to social harassment coupled with legal prejudice.
Several Indian companies have adopted gender-neutral sexual harassment policies. For instance, the Taj Group of Hotels, Tech Mahindra, and Godrej have implemented such systems to ensure all employees’ safety, regardless of gender. Such positive changes should inspire analogous amendments in the POSH Act of 2013.
Another pertinent piece of legislation is the Immoral Traffic (Prevention) Act, 1956. The transgender community is disproportionately affected by human trafficking, yet the Act does not adequately address its vulnerabilities. This Act, initially focused on preventing the trafficking of women and children, underwent an amendment in 1986 to encompass individuals who defy traditional gender binaries. Unfortunately, this expansion treated males and transgender individuals as potential criminals, while women became the designated victims. This skewed perspective failed to acknowledge that transgender individuals could also fall victim to human trafficking.
Furthermore, the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2016, bore adverse consequences for the transgender community. In 2016, when the transgender community had just secured legal recognition, many individuals, particularly the vulnerable Hijra community, still struggled to secure employment in the formal sector. Consequently, they were forced into sex work and begging due to long-standing neglect — both of which the Act criminalized. Regrettably, the government neither consulted nor provided alternative skill development programs to facilitate self-sufficiency and integration into the formal sector. The Act also categorized anyone undergoing “hormone therapy” as engaging in trafficking. This therapy is a vital aspect of many transgender peoples’ lives, especially those undergoing sex reassignment procedures. Criminalizing these activities further marginalized the community, an act that was both unwarranted and regressive. While the Trafficking Act’s intention was genuine it failed to encompass the perspectives and interests of all stakeholders, handing out justice for one group at the cost of another. After one set of revisions in 2018, the Bill underwent another revision most recently in 2021 to widen the scope of ‘victims’ to include the LGBTQIA+ in the Draft Trafficking of Persons (Prevention, Protection, and Rehabilitation) Act, 2021. The passage of this Bill without legislators invalidating the inclusion of the LGBTQIA+ protection aspect can establish a positive precedent in favour of this community’s rights.
While the aforementioned laws might seem backward and illogical to certain groups or in certain cultural contexts, it is essential to recognize that Indian society’s acceptance of LGBTQIA+ is still in its early stages. Given the standard of societal morality in India, this community remains taboo, and extending acknowledgement and rights is considered preposterous in popular opinion. Even the ongoing proceedings to allow same-sex marriages have received overwhelming opposition from the government as well as the Indian public. Achieving comprehensive inclusion for the third gender requires time and societal reshaping. Nevertheless, the urgency for reform remains vital. Despite securing legal acknowledgement and constitutional equality, the treatment of transgender individuals in society and within the legal system raises concerns about potential violations of their fundamental rights outlined in Articles 14 (right to equality), 15 (right against discrimination), and 21 (right to life) stems from the lack of gender-neutral sexual offences laws. This necessitates concrete efforts to accelerate the move towards gender-neutral legal frameworks. India has the necessary legal jurisprudence at its disposal, and a rather gender-neutral set of legislation is on its way for India. What is lacking is practical adherence and administrative sensitivity. This can be remedied through structured training and sensitization of law enforcement, judges, and legal professionals on issues related to gender diversity and LGBTQ+ rights to promote fair and unbiased application of the law. The recent Supreme Court Handbook on Combatting Gender Stereotypes is one recent measure that is laudatory in guiding stakeholders in the justice system to ensure mindfulness. Such initiatives will reflect a more nuanced understanding of the complexities of such crimes under criminal law, acknowledging that those affected and responsible can include men, women, and all others in between.