Reforms to chapter in IPC 1860: Special reference to Third Gender Community Rights

In India, gender identity has always been a big deal in terms of both the functioning of culture and its laws. Since time immemorial, gender-specific laws have been a part of Indian legislation. Perhaps the best thing about legislation is its dynamics. Gender-neutrality in law is the roadmap to social change, which the Indian Community needs to unbind itself from the shackles of stereotypes, given the changing scenarios and challenges.

When framing laws, the first prerequisite is to understand that laws cannot disregard social reality and that laws are only one of the many instruments to bring about change; other methods of social regulation are often used. When passing a statute, the factors responsible for that particular offence must not be overlooked. In the new law itself, they should aim to appeal to them. LGBTIQ had fought various social fights for their liberation and treatment as decent people or human beings until now.

In many jurisdictions, the social change movements centred on LGBTIQ rights over the years won this persecuted class of citizens near fair and equal rights and reform movements are still on around the world. Transgenders had to wait till the Supreme Court ruling in  National Legal Services Authority v. Union of  India[1], for  being  recognised  in  law.  It  was  only  in 2018, homosexuality was decriminalised, following the Apex Court’s judgment in Navtej Singh Johar vs. Union of India[2]. In 2019, the Transgender Persons (Protection of Rights)  Bill, 2019 was passed by the Parliament and the President signed it into law.

This is the first law passed by the  Parliament  to  secure  the  rights  of  trans-genders  in  the  country  and  to end  all  forms  of  discrimination  against  them. Now with the decriminalization of Section 377 and passing law to end all forms of discrimination against them, it only fair that we should include it in the IPC with proper definition. In the Chapter II of general explanations are given and in section 10 of this chapter the explanation of term “MAN and WOMAN” is given and where now the term TRANSGENDER is also given.

But there’s no other place where transgender term have been used in IPC. In India, criminal laws have been changed time and time again over the years to fulfil the need for the hour. Since the opening of the Nirbhaya Case, the changes in the field of sexual crimes against women have made a huge contribution to women’s protection. Different acts that were not crimes earlier were remembered, thereby providing space for access to justice for any victim. The aim of this reform is  putting it into perspective, seeks to make such change as it calls for a abandonment of transgender child . It is to be noted that in the 21st century, the Indian Society has improved a lot.

Not only did it accept the third sex that existed, but it also recognised them as part of the Indian Community. Now with the recognition of the community, it’s time to raise voice on the different topics which are related to the community and still not given any order  by the legislation or judiciary on that problems. Because of no inclusion of transgender term in the laws the community faces many problems and one of the problem being abandonment of transgender child.

With the inclusion of term Transgender in the IPC it will helps in solving the problem of abandonment of transgender children u/s 317 (i.e. Child abandonment is a punishable crime, if the child is abandoned before the age of twelve).

Since the abandonment of transgender or any other  children typically takes place between the ages of twelve and eighteen, the transgender community (as well as any child of any gender over the age of twelve who is abandoned) will benefit from the age of the qualifying child for this offence to be raised to at least sixteen years, moreover, it  will also help the community in various other aspects like in verbal abuse against the community under section 153(a) i.e. Section 153A IPC makes it an offence to promote enmity among different groups on grounds of faith, race, place of birth, residence, language, etc., and to perpetrate actions detrimental to preserve harmony. It involves phrases or any prejudicial act. Therefore, under Section 153A of the IPCC, verbal harassment or derogatory conduct against transgender persons may constitute an offence.

In India Four of 10 transgender people face sexual abuse before completing 18 years, according to a survey by Swasti Health Resource Centre — a Bengaluru-based non-profit organisation. In first ever study conducted on the human rights of “transgenders” in India, the National Human Rights Commission has stated that the rights of transgenders are “largely compromised” and they are in a sense of isolation, within households, communities and institutions, amid rampant societal gender discrimination. Elaborating on discrimination of transgenders, which begins from childhood, NHRC says “parents do not play a proactive role in the case of transgender children. Instead, they suffer verbal and corporal abuses at the hands of their parents, siblings and other family members”.

“Most of them keep their identities as transgender secret till it is impossible for them to hide it forever. Most parents consider their status as physical and mental defects”, it says, adding that transgenders also do not enjoy any legal right in the property inheritance. With the inclusion of Transgender term in the IPC it will help transgender children very much. As most of the parents abandoned their child before they turn 18 and there’s no law in India which help them in this situation, but with this reform it will help them. As we know, we are following many of the old patterns and practises that were evolved at their time after the advent of British Rule India until its end. There was a pattern of upholding such customs that is continuing to disrespect transgender and violate their constitutional rights. It will take time as it is old practise, but now by announcing Sec. 377 Unconstitutional India has shown and is also making a move forward in ensuring that its rights are transgendered and allowing them to live their lives with dignity and equality and with this reform or with proper inclusion of term transgender in IPC  will also help the children to live with dignity, because they have the right to live without abuse and that will not help until this reform comes in the IPC.

[1] National Legal Services Authority v. Union of  India,  (2014)  5  SCC  438.

[2] Navtej Singh Johar vs. Union of India 2018 (4) KLT 1 (SC).

Image Source : The Quint

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