Does the ‘Right against Sexual Exploitation’ Extends to Third Gender Person/ Communities too?

Though India may be one of the countries which are known for its humane and kind character, it’s also a fact worth noting that there lies a great deal of social stigma towards being inclusive about a certain number of things. The Third Gender or most commonly known as “Transgender or Transsexes” in such circumstances struggle to get the common respect as available to any normal male or female in society and are called names.

Recently, a plea has been filed in the Supreme Court for pursuing the “Right against Exploitation” guaranteed under the Constitution of India and seeking the protection and safeguard of law for the transgender community by Advocate Reepak Kansal in his personal capacity and further recommending an Anti-discrimination bill for the Third Gender Community.

What does the petition allege?

Such plea filed by Mr. Reepak Kansal questioned the constitutional validity of Clause (i), Clause (ii), and Clause (iv), sub-section (1) of Section 354A of the Indian Penal Code (IPC) in relation with Article 14, 15, and 21 of the Indian Constitution which guarantees gender equality and justice to the citizen of India. Where Article 14 provides “Any person” not to be denied equality before the law, Article15 forbids any gender discrimination, and Article 21, guarantees ‘Right to life’.

The petition alleges that the Transgender people who have been a victim of sexual harassment are dispossessed of their penalizing rights and thus need separate legislation for their protection and for securing timely justice. However, the available Indian legislations neglect the status of such “Third gender Communities” as a result of which it is deprived of justice, rights, and privileges generally available to other “genders” in India.

The petition further alleges that there is no provision in the Indian Penal Code available to protect the third gender from the sexual assault by a male/ female or another transgender. Therefore, anti-discrimination law is needed to safeguard the basic citizenship rights of transgender persons.

He also requests directly to the respondents to make appropriate interpretations of sections of IPC dealing with sexual assault to include transsexuals and eunuchs in the definitions accordingly. Further, Article 21 states that no person shall be deprived of life or personal liberty except according to the procedure established by law under the “Right to life”, which includes the right to live with dignity.

The Petitioner maintained that the Supreme Court of India passed a path-breaking judgment in the matter of National Legal Services Authority v. Union of India (SCC 2014 5 SC 438) that granted recognition to the transgender / third gender as ‘persons’ falling under the ambit of Article 14 of the Indian Constitution and the main objective of the Apex Court behind doing so was to grant equity and equality to members of the transgender community and to give equal protection before the law. Thus, it was affirmed by the judgment that the fundamental rights guaranteed under the Constitution of India will be equally available to transgender people. On the basis of which, the National Legal Services Authority wrote out certain guidelines which again were not meted with the Court observations.

Importance of this PIL for the protection of Transsexuals:

In recent years, several legislations and legal provisions have been adopted by the Indian Constitution for the purpose of the uplifting of the transgender community, including the recognition of a new gender applicable for legal purposes by the Apex Court of India. However, it’s a fact worth mentioning that so much is needed to be done for providing them equal status and respect in the society for claiming equal rights for all generations in India. There have been innumerable cases of sexual abuse and violence towards “Third genders” in India.

 As per statistics, one in two transgender individuals is sexually abused or assaulted at some point in their lives. Some reports estimate that transgender survivors undergo sexual assaults of up to 66 percent along with occasional physical assaults or abuse. The majority section of the transgender community is leading a life with the aftermath of trauma, agony, and fear. Their Right to Life is being constantly challenged.

Thus, it is understood that the trans-genders still lack the “Right to Life with dignity” apart from social acceptance. There has been a case in which a Transgender Delhi University student was denied filing a complaint as there was no such provision in the IPC. Finally, not a single provision/section in the Indian penal code which may protect the third gender from the sexual assault by male/ female or another transgender is accessible in present.

Nevertheless, it is need of the time to change the legal system of India more inclusive and gender-neutral to the sexual harassment mechanisms and similarly to pass an Anti-Discrimination Bill which will provide penalties against gender discrimination and harassment on the grounds of gender in India and thus, helping India to achieve its goal of a kind, inclusive and a holistic country.

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