The final vacuum and absurdity of the Indian criminal provisions

Every year in the month of June, the world is witnessing a large number of parades. The Internet is full of photos of people who advocate LGBTQ rights, celebrating it as a month of pride and this also resonates in the heart of India. In fact, in India, this cheerful crescendo extends to early July, while India celebrates Indian day that comes out the day On July 2 to commemorate the Naz VS Foundation of NCT Delhi⁽¹⁾A judgment of the Superior Court of Delhi that farewell from the homosexual sexual activity, which was then stated in the case of Navtej Singh Johar v. India Union⁽²⁾.

However, India strives for gender equality and gender neutrality sounds hollow, since its criminal laws do not recognize the same when it comes to crimes related to sexual crimes. What could be less than an inconsistency states that on July 1, 2024, the day after the end of the month of pride, we came up with three new laws: Bhartiya Nyaya Sanhita, Bhartiya Surakshka Sanhita and Bhartiya Sakshya Adhiniyam without neutral gender dispositions. It is palpable and worrying that a nation that covers the concept of a third genre still clings to gender definitions of sexual crimes, creating significant legal disparity.

The situation worsens, since justice fails more deeply in cases of sexual aggression against transgender people, who were caught under the definitive emptiness of men and women. They were subject to different forms of sexual aggression, such as violation, sodomy, bestiality, etc., guaranteed with extortion, abuse and violence, they are often not recognized due to lack of adequate protection and specific mention under the relevant statutes intertwined with other socio -economic factors. A sampled survey shows that an overwhelming eighty percent of the sample had experienced sexual aggression and 37% reported that repeated victimization during childhood and adulthood, a testimony of its generalized vulnerability.⁽³⁾

The non -recognition and invisibility of transgender victims can be displayed from the data of the National Office of Crime Registries (NCRB) that the transgender community includes 0.53 percent of the population of the country, but constitute 0.006 percent of all victims of the crime. In 2020, NCRB registered only 236 crime victims that were transgender. In the 2022 report, only nine victims of transgender murder, and violations that involve transgender people are not registered.⁽⁴⁾.

Equality can flourish in the modern notion of the State through the promulgation of laws rooted in the principle of equality before the law, but the problems persist and injustice persists when the laws themselves are unequal. Historically, legal systems were molded by patriarchal ideologies, often excluding trans people from recognition or protection, and this systemic non -systemic inclusion permeates almost all facets of Indian criminal legislation. Even the male gender finds incomplete protection, which makes the inclusion of a third genre a distant and fading dream.

In this article, we will dissect the legal framework around the sexual aggression of the transgender, the persistent disparity between the constitutional mandate of articles 14, 15, 21, that is, of equality, not discrimination and the right to life with dignity and reality of gender laws and lagoons existing in them.

Transgender is a broad term that is used to describe people whose gender identity is different from the gender that were thought to be when they were born. According to the transgender law of 2019, a transgender person is such a person whose gender does not coincide with the gender assigned to that person at birth. In addition, the definition includes Trans-Man and Trans-Woman (it is irrelevant that such a person has suffered any sexual reassignment surgery) and people with intersex variations, gender queues and people who have sociocultural identities such as Kinner, Hijra, Aravani and Jogta. When going with this definition, a substantial and diverse population has been covered. However, under the Indian Criminal Code, 1860, the gender concept remains limited.

Under the Indian Criminal Code, 1860, the word gender is defined as – The pronoun “he” and its derivatives are used by anyone, whether male or female. In addition, section 10 defines men and women as male and female human beings of any age. Here it is clear that the Indian Criminal Code expressly excludes transgender people. The exclusion becomes more pronounced in the provisions related to sexual crimes. Sections 354, 354b, 354c, 354d Use the word woman, excluding transgender. The crime of violation defined under section 375, considered as the most atrocious crime, also uses the word women. Interestingly, section 354a does not exclusively use the word women in all its clauses. Provides the definition of the crime of sexual harassment, which is –(1) A man who commits any of the following acts:

(i) physical contact and advances that involve sexual and explicit sexualverters; or (ii) gesture or request for sexual favors; or (iii) showing pornography against the will of a woman; Or (iv) make sexual comments, it will be guilty of the crime of sexual harassment.

Since the clauses (i), (ii), (iv) do not expressly use the word women, therefore, transgender people could obtain some relief under these clauses, and the Superior Court of Delhi has also affirmed this opinion in the order of December 17, 2018⁽⁵⁾.

Similar is the history of women’s sexual harassment in the workplace (prevention, prohibition and repair) law, 2013. In section 2 (n) of the law, “sexual harassment” has been defined. In addition, section 9 of the law establishes that any injured woman can file a complaint of sexual harassment. The word “aggravated woman” has been defined in section 2 (a). Now, in reading all these sections, we get that transgender people are also out of the scope of this law.

“Err er is human, but persisting in an error is diabolical.” This fundamental concept is painfully applicable to the current state of Indian criminal jurisprudence. In 2023, Parliament presented three new acts repealing the old criminal and the laws of evidence and the penal code of the penalty, 1860, was replaced by the Bharatiya Nya Nya Sanhita, 2023, 2023. Inclusive, but the expected metamorphosis remained difficult to achieve.

It is important to keep in mind that there have been few changes in the BNS that make it something inclusive in contrast to its predecessor IPC. One of these changes can be seen in the definition of the word “gender”, which is provided in section 2 (10) of the Sanhita. Subsection 10 says “Gender”: The pronoun “He” and its derivatives are used by anyone, whether male, woman or transgender. In addition, the explanation of section 2 (10) establishes that the transgender of the word will have the same meaning assigned to clause (k) of Section 2 of the Transgender Persons Law, 2019. But all related provisions on sexual aggression still carry the term “women”, which is non -neutral terminology, excluding transgender people. While defining women, section 2 (35) says that women refer to human beings of any age. Chapter V of Bharatiya Nyaya Sanhita, 2023 deals with the crime against women. Section 63, Section 74, Section 75, Section 76, Section 76, Section 77, Section 78 and Section 79 of the Law are incorporated with the term women. Now the difficulty is that, on the one hand, the new act extended the definition of gender, but on the other hand, it still restricts the crimes of sexual aggression to women only. Therefore, the change made can never be fruitful until the provisions are made neutral in the genre. Therefore, there is no harm to say that the change made under the act is nothing more than the touch of a pen against the weight of a mountain.

In 2019, Parliament approved the Law of Transgender Persons (Protection of Rights) to address the inequalities faced by transgender people. However, sexual assault continues to have different legal provisions. The eighth chapter of the law is on crimes and sanctions and section 18 (d) of the law addresses part of the crime of sexual aggression to a transgender person. However, the punishment for such an offense is much softer than the equivalent provisions of the Bharatiya Nyaya Sanhita.

Then, the efforts of India towards the protection of the transgender people who began with the case of the Naz Foundation in 2009, navigating through several judicial pronouncements such as Nalsa v. India Union⁽⁶⁾ (2014) and Navtej Singh Johar v. Union of India⁽⁷⁾ (2018) is still in limbo due to the absurdity of criminal provisions. Although the report of the Law Commission 172 advocated the laws of neutral gender violation and the recognition of the Supreme Court of the gender nature of section 375 CPI, the parliamentary paralysis has suffocated a substantial reform. The private member’s bill⁽⁸⁾ Presented by the lawyer Senior Kts Tulsi in 2019 he tried to fill these gaps, but his non -approval is an excellent example of this paralysis and the doubt of legislators to address the same.

The Bharatiya Nyaya Sanhita, 2023, although it is an opportunity for inclusion, has greatly preserved the gender approach of its predecessor. On the contrary, legislation such as the Imoral Traffic Law (Prevention) of 1956 has taken a step towards inclusion through the use of neutral language. The word “person” has been replaced instead of “women and girls”, “Subtrial female” was replaced with “subtrants” in several provisions by the amendment made in 1987. The Law of Transgender Persons (Protection of Rights), 2019, was another increase towards acceptance of transgender rights, but their dispositions of sexual aggression are not yet insufficient to provide the required protection.

Inaction to implement the laws of sexual assault of neutral gender not only goes against the constitutional requirements of articles 14, 15 and 21, but also reinforces systemic exclusion. In order for India to effectively promote gender justice, you must understand that sexual violence does not address a particular genre. A justice system that does not protect the entire sections of the population is unfair in itself. The time has come for the legislature to approve effective and neutral gender legislation on sexual aggression that guarantees respect for the principles of equality, dignity and non -discrimination to deliver justice to all without taking into account gender identity.

The authors are third -year students of LLB (Hons.) In the Law Faculty, Hindu University of Banaras. The views are personal.