By: Aprajita Tyagi
Though the existence and acceptance of transgender persons have long been recorded in ancient Indian texts, the recognition of their legal rights is a recent occurrence in the country. It was only in 2019 that the Indian Parliament enacted the nation’s first legislation, namely the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter “TPA”), to address the issues faced by transgender persons in the country. This article examines the stance of the TPA in granting protection to transgender persons against rape while mentioning the legal position adopted beyond the Indian borders.
The provisions of the TPA, prima facie, do not accord protection against rape to transgender persons. In National Legal Services Authority v. Union of India (hereinafter “NLSA”)(para 112), the Hon’ble Supreme Court recognized that rape is a recurrent offence against transgender persons. Despite such recognition by the Apex Court, the TPA does not use the word ‘rape’ while listing punishable offences. Considering this, it would be relevant to explore whether ‘sexual abuse’ under Section 18 of the TPA includes ‘rape’ within its ambit.
The only given definition of ‘sexual abuse’ in India is provided under Section 3(d)(ii) of the Protection of Women from Domestic Violence Act, 2005, wherein it has been defined as a conduct of sexual nature that violates a woman’s dignity.
The Hon’ble Supreme Court has established that rape violates the dignity of the victim, and this, coupled with the fact that rape is categorized as a ‘sexual’ offence, is a strong argument in favour of ‘rape’ being covered under the ambit of ‘sexual abuse’ under the TPA.
This proposition, however, does not seem very strong from a penal perspective. The TPA aims at raising the standard of behaviour met out to transgender persons in furtherance of gender equality. It is, thus, crucial for provisions regarding rape contained therein (if they do exist) to at least be on par, if not more advanced, with those contained under the Indian Penal Code, 1860 (hereinafter “IPC”). Yet, the TPA holds that the maximum imprisonment that can be prescribed to an offender for sexual abuse is merely two years which doesn’t even come close to the minimum imprisonment prescribed for committing rape on women that stands at ten years as per the IPC. Moreover, the nature of imprisonment is ‘simple’ under the TPA, whereas the IPC prescribes mandatory ‘rigorous’ imprisonment to offenders. The TPA, thus, seems ill-equipped for dealing with cases of rape.
The Deterrence Theory of punishment presents that the purpose of punishing offenders is to make others see the negative consequences of committing a crime so that they refrain from doing the same for the want of avoiding a similar punishment. In this context, the harsher the punishment is, the more successful it will be to deter crime as it will invoke a higher level of fear and demotivation in the minds of potential criminals. Therefore, since the IPC prescribes a harsher punishment, it will be more potent than the TPA in protecting potential victims.
Another angle from which the punishment clauses in both the legislations should be analysed is that of justice. The Retributive Theory of justice, though criticized as being immoral, is still relevant herein as it connects the idea of justice with the ‘rule of proportionality’ – a fundamental aspect of most modern legal systems and a constant consideration in the minds of judges while determining the quantum of punishment.
In a nutshell, this theory states that those who commit crimes deserve to endure suffering themselves. The infliction of such suffering upon the offender would be moral and just only if it is proportionally equal to the gravity of the crime committed. The offence of rape is serious enough to have made the legislature include life imprisonment and death penalty on the list of administrable punishments, and the trauma caused to a rape victim can never be fully compensated, nor can the damage to their dignity ever be restored. Therefore, no amount of fine imposed on the offender can come close to the psychological and physical suffering of the victim or help them in their full and proper restitution.
The disproportionate scope of punishment could have two interpretations: firstly, that the rights of transgender persons weigh less than other people’s in the eyes of the State, and secondly, that Section 18 was never meant to address rape under the TPA. The former assumption would entail a blatant violation of Article 14 of the Indian Constitution by the Parliament, which is a gender-neutral provision that includes transgender persons within the ambit of its protection. However, it is quite unlikely that the Parliament would go against State policy and openly discriminate against a vulnerable community if it itself meant to recognize their right against rape through the TPA.
The latter assumption stems from the fact that the definition of ‘sexual abuse’ in Indian law was laid out in the context of domestic violence against women. There is no punishment prescribed for committing ‘domestic violence’ in any statute, so when acts constituting domestic violence, such as sexual abuse, occur, relevant penal provisions of other legislations are paired with the charge of domestic violence in the FIR.
This arrangement works for females as all penal provisions regarding sexual offences consider them ‘eligible’ to be acknowledged as a victim of such crimes. The same, however, is not true for transgender persons. It can, thus, be summarized that the legislature holds only certain kinds of sexual offences can occur against transgender persons, and this list certainly does not include ‘rape’.
Under Section 375 of the IPC, four categories of actions are given that are said to constitute the offence of rape. The first three involve penetration of the vagina, urethra, or anus, and the fourth one involves involuntary contact between reproductive organs and the mouth. None of these body parts is exclusive to women. The former three can also be found in transgender persons with intersex variation and the latter two are present in all human beings irrespective of their gender or sex.
With how the penal law stands today, even if an act is committed against a transgender which by nature is the same as rape, they would still be unable to get an FIR filed against the offender for the same under Section 376 of IPC. This is a very peculiar state of affairs as reasonable classification based on intelligible differentia as required by Article 14 does not seem to be present here.
Like India, many other countries do not deem rape to be a gender-neutral offence. Even the Rome Statute refuses to acknowledge cases of rape against transgender persons. However, this trend is slowly changing.
Countries like the USA, UK, Scotland, Northern Ireland and the Philippines have changed their definition of ‘rape’ to make it gender-neutral, albeit only concerning victims. Some countries have taken an altogether different approach. For example, in New Zealand, though the law pertaining to ‘rape’ only refers to situations of penetration of the vagina by a penis, nowhere have the words ‘man’ and ‘woman’ been used in the entire provision. Further, even if their legal system were to refuse acknowledgement of anyone other than women as ‘rape’ victims, it would not pose a problem as their legislature has included an offence in their penal law that criminalizes unconsented acts of sexual connection, irrespective of the gender or sex of the victim or offender while prescribing the same scope of punishment.
The right to social justice is fundamental by nature. This right, though envisioned in the Preamble of the Indian Constitution, will never be an achievable reality lest gender justice is done by extending due and proper protection to transgender persons. Protection against sexual offences is every human’s right and acknowledgement of the same should never be considered ex gratia.
Within the patriarchal bounds of the legislation (as illustrated by the recurrent use of the pronoun ‘his’ for transgender persons), there has indeed been a failure to expand national jurisprudence regarding the penal law on rape. The umbrella of protection continues to only shelter women, disregarding the struggles faced by transgender persons.
In this light, the author suggests that inspiration should be derived from the worldwide changing trend of increasing the ambit of protection against rape, and sexual offenders in India should stand to face the same scope of punishment during trials in cases where the victim is transgender. An amendment of the terminologies used in the TPA, such as changing ‘his’ to ‘their’ to make it more appropriate, is also sought. Pursuing these changes is necessary as presently, the TPA, though a welcome step, is still quite underwhelming and unsatisfactory.
[Aprajita Tyagi is a fourth-year law student at Symbiosis Law School, NOIDA.]
