In a welcome development, the Delhi High Court has affirmed the application of Section 354A of the Indian Penal Code to transgender victims of sexual harassment.
The Delhi Police informed the Delhi High Court that all cases concerning sexual harassment against transgenders will now be registered under Section 354A of the Indian Penal Code which deals with “assault or criminal force to woman with intent to outrage her modesty.”
The petition was moved by a transgender student from Delhi University after the police refused to lodge a sexual harassment case against one of her male classmates citing ‘lack of an appropriate penal section’. The police stated that Section 354 is specifically for women and has no mention of any other gender.
A division bench of Justice Siddharth Mridul and Justice Sangita Dhingra Sehgal during the hearing stated that post the Supreme Court’s National Legal Services Authority of India (NALSA) verdict, the section 354A is gender neutral.
However, the Delhi Police has now informed the High Court through standing counsel (criminal) Rahul Mehra that their direction to register cases of sexual harassment against transgender people is in pursuance to the landmark NALSA verdict that declared transgender people to be a ‘third gender’.
The case is in the light of recently passed Transgender Persons (Protection of Rights) Bill, 2018, by the Lok Sabha, which has been criticised as it denies equality to the transgender people in relation to sexual offences.
The Bill aims to stop discrimination against a transgender person in various sectors such as education, employment, and healthcare. It also directs the central and state governments to provide welfare schemes for them.
The Bill states that a person will be recognised as transgender on the basis of a certificate of identity issued through the district screening committee. This certificate will be a proof of identity as transgender and confer rights under this Bill.
Under Section 354A, acts that cause penal action are subclause (i) is physical contact and advances involving unwelcome and explicit sexual overtures; sub-clause (ii) is demand or request for sexual favours; and sub-clause (iv) is making sexually coloured remarks.
The Delhi Police has also informed the court that a complaint has now been lodged against the accused at the Rajouri Garden police station and has also affirmed that the fundamental rights granted under the Constitution of India “will be equally applicable to transgenders” and gave them the right to self-identification of their gender as male, female or third-gender.
The student has requested the court for anonymity and stated that there was a lacuna in the law as it was discriminatory towards the transgenders. The petition now stands dismissed.