The Supreme Court on Monday sought the Centre’s reply on a petition seeking equal protection in law to transgender people on the grounds that there was no penal provision, which protects them from offences of sexual assault.
A bench headed by Chief Justice SA Bobde said that it was a “good case” which needed hearing.
The bench, also comprising Justices AS Bopanna and V Ramasubramanian, asked senior advocate Vikas Singh, representing petitioner lawyer Reepak Kansal, to file details of cases where the court had passed orders in the the absence of laws to deal with issues.
In a hearing conducted via video conferencing, the bench referred to the framing of the Vishaka guidelines to deal with sexual harassment of women at work places and the decriminalisation of consensual gay sex by the top court in the absence of laws.
Singh said he would be filing such details as asked by the court.
The petition, which has made the ministries of law and justice, and social justice and empowerment as parties, has referred to the provisions of the IPC of 1860 as also to the recent amendments to the statute and other laws on sexual offences and alleged that none of them talked about the “transgender, transsexuals, kinnar and eunuchs”.
“In spite of declaring transgender people to be a ”third gender” by this court, there is no provision/ section in the Indian Penal Code which may protect the third gender from the sexual assault by male/ female or another transgender,” it said.
The petition challenged the constitutional validity of certain clauses of Section 354A (outraging the modesty of woman) of IPC, to the extent that they are interpreted to exclude victims of sexual harassment who are transgender persons, as being ultra vires Articles 14, 15 and 21 of the Constitution.
Lawyer Kansal, who filed the PIL in personal capacity, said that though the top court in 2014, had granted “recognition to the transgender/ third gender as ”persons” falling under the ambit of Article 14 of the Indian Constitution”, still they do not have equal protection of law in relation to sexual offenses.
“The petitioner is filing this petition…with respect to equal protection of law to the third gender/ transgender from the sexual assault /offences as there is no provision / section in the IPC which may protect the third gender from the sexual assault by male/ female or another transgender therefore, anti-discrimination laws are needed to safeguard the basic citizenship rights of transgender persons,” the plea said.
The petition, which may come up for hearing in few days, has sought a direction to the Centre to “make appropriate modification/ interpretation of sections/ provisions of IPC dealing with sexual assault to include transgender/ transsexuals/ kinnar and eunuchs in the definitions accordingly”.
It also referred to an incident of not lodging an FIR by Delhi Police on a sexual harassment complaint of a Delhi University transgender student on the ground that there was no provision in the IPC to deal with transgenders.
The plea urged the top court “to issue an appropriate order… directing the respondents to pass an Anti-Discrimination Bill that penalises discrimination and harassment on the basis of gender”.
It also sought a direction to the Centre to adopt and implement the Universal Declaration of Human Rights being signatory of it.
