High Court of Delhi & applicability of S. 354A of IPC to transgender community
On 17th December, 2018, a matter with respect to applicability of Section 354A of the Indian Penal Code (“IPC”) to transgender victims reached the High Court of Delhi. From perusal of a copy of the writ petition filed by Anamika before the High Court of Delhi in 2018 it appears that she is a student of Delhi University and a transgender person who identifies herself as a woman, though she was assigned “male” sex at birth. Her petition states that she was sexually harassed by male students on campus in 2017-18, however, when she approached the police for filing an FIR, the police did not do so as she was not a ‘woman’ for the purpose of IPC.
In her petition to High Court, she also states that the police chose not to apply the relevant provisions of IPC due to her sexuality, as she did not conform to the stereotypical gender of a male or a female. The petition states, “At the first instance, Respondent No.3 was sympathetic and acknowledged that Petitioner had been a victim of sexual harassment. However, according to the Investigating Officer (hereinafter “I.O.”), the relevant section under the IPC, i.e. Section 354A provides that acts of sexual harassment can be committed by a ‘man’ against a ‘woman’ only. The Officer doubted whether Petitioner could file a police complaint of sexual harassment under Section 354A of the IPC as she was a transgender person and not a ‘woman’. When Petitioner tried to explain to Respondent No.3 that transgender persons are entitled to equal protection of laws under the Constitution of India, the I.O. retorted:- “In the Police Station, it is the IPC that applies and not the Constitution.”
She also challenged the constitutional validity of section 354A in the petition calling it discriminatory. Section 354A of IPC states that “A man committing any of the following act- i) physical contact and advances involving unwelcome and explicit sexual overtures; ii) a demand or request for sexual favours; or iii) showing pornography against the will of a woman; or iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment, shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both”.
Before the court, advocates on behalf of Delhi Police stated that an FIR, based on the complaint made on behalf of the petitioner, under the provision of Section 354-A IPC, has since been registered at Police Station Rajouri Garden; and investigation is underway and if a cognizable offence, under the provision of Section 354-A IPC, in particular, sub clause (i), (ii) and (iv), is made out on the complaint of a transgender, the same shall be registered, in accordance with law, in terms of the decision of the Hon‟ble Supreme Court in the case of National Legal Services Authority vs UOI, 2014 5 SC 438 as instructed by the Commissioner of Police, Delhi. As the Delhi Police registered the complaint, the proceedings were not pressed further and the writ petition was dismissed.
The Supreme Court in its landmark judgement National Legal Services Authority vs UOI, 2014 5 SC 438 declared transgender people to be a ‘third gender’, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them as well and gave them the right to self-identification of their gender as male, female or third-gender. It held that equality includes the full and equal enjoyment of all rights and freedoms and that “transgender persons cannot be denied such protection”.