Open Access Research Article
COMPARATIVE STUDY OF TRANSGENDER RAPE LAWS IN INDIA AND OTHER COUNTRIES BY: RISHIKA SALUJA
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COMPARATIVE STUDY OF TRANSGENDER RAPE LAWS IN INDIA AND
OTHER COUNTRIES
AUTHOR: RISHIKA SALUJA,
3rd year of B.A.,LL.B from Delhi
Metropolitan Education, Noida
affiliated to GGSIPU, Delhi.
Abstract
Transgender who are
commonly known as “HIJRAS'' have been fighting for their HUMAN RIGHTS for a
very long time now- in 2019 Supreme
court of India recognized transgender as a ‘third gender’ - but before it they witnessed humiliation, sufferings and
discrimination- they were expected to earn their living by doing odd jobs like
begging, prostitution ,etc no dignified jobs were there available for them but
in NALSA v. UOI the apex court of India provided them the dignity… dignity to
live a life a dignified life by recognizing them as third gender and have also
passed an act for their protection [THE TRANSGENDERPERSONS (PROTECTION OF
RIGHTS) ACT, 2019] but was that enough? I guess NO. In India 40% of transgender
people face sexual abuse even before turning 18. Rape- defined under section
375 of Indian Penal Code, 1860 which is a gender biased definition and
transgender rape is not been included under the same.
In light of this, the
paper will attempt to compare and evaluate the various legal frameworks
regarding basic rape laws for transgender people that have been adopted by
nations all over the world. It will also attempt to suggest some measures by
which this vulnerable segment of society could not feel neglected and
discriminated against and could lead a dignified life similar to that of other
people.
INTRODUCTION
Transgender are person
whose outer body doesn’t match their gender expression for example- a human
being born in the body of a male but identifies as a female though these people
are neither male nor female. In the history it was believed that when lord
shiva and shakti came together to set an example that wife and husband are
equal and are companion to each other no one is greater than the other , they
are one soul with two bodies to prove this fact lord shiva and shakti came together
and took ‘ardhanarishvara’ avtar and
it is well known in the history that transgender are born out of this avtar
therefore in our country it was religiously believed that if you upset the
hijras lord shiva will never forgave you for this sin. But as time changed this
our society started neglecting this community and not only this but also
started disrespecting the same and the story doesn't end here but they were
also forced into prostitution. In the
two holy Hindu mythological epics, the Ramayana and the Mahabharata, we also
find mention of the hijra community. Lord Rama is supposed to have asked all
the "men and women" to go back to the city when he turned around to
leave the city in the epic Ramayana after being exiled from the kingdom for 14
years. Following his lead, the Hijra community elected to live with him because
they did not feel obligated to go back.
We also find references
to this group in the other epic, the Mahabharata. Arjun, the epic's hero, was
exiled in one of the chapters of the Mahabharata. There, he adopted the
identity of a hijra and carried out customs that transgender people now execute
at marriage and childbirth. Another transgender-related tale can be found in
the Mahabharata epic. The Mahabharata describes Aravan as the son of Arjuna and
Nagakanya. He only stipulated that he would spend his final night in marriage
before making an offer to be sacrificed to Goddess Kali in order to guarantee
the Pandavas' victory in the battle of Kurukshetra.
Krishna took the form of
Mohini, a stunning lady, and wed him because no woman would want to wed a man
who was destined to die. The Tamil Nadu Hijras refer to themselves as Aravanis
and view Aravan as their progenitor. One of Lord Shiva's numerous incarnations
in Hindu mythology involves him combining with his wife Parvati to become the
androgynous Ardhanari, who is especially significant to the Hijra people.
Islamic Period- During the Islamic era,
the Hijra community also had a significant impact, particularly during the
Ottoman and Mughal eras in medieval India. They once held important posts
including political counsellor, administrator general, and harem guard. They
had a reputation for being astute, reliable, and devoted to the royal throne.
Due to their unrestricted access to all areas and demographic groups, they were
essential in the politics of empire-building throughout the Mughal Empire. They
were also thought to possess supernatural power and sought after for favors,
especially during religious rituals.
British Period: At the start of British
rule, certain Indian states granted transgender populations privileges. They
had the right to obtain land from agricultural households, as well as food
rights and a small quantity of money. Because they did not get their estates
via family connections, such benefits were taken away from them during the
British Period, and lands were also removed by British legislation. During
British colonial rule, members of the Hijra community were labelled as
criminals. During colonial control, they were considered a different caste or
tribe.
Under the Criminal Tribes
Act of 1871, all hijras were classified as criminal tribes because they were
involved in kidnapping, castrating, and disguising as women to dance in public.
Such conduct might result in up to two years in prison, a fine, or both.
Legislative framework for transgender community
Transgender in 2019 got
recognition under the eyes of law in the NALSA v. UOI case where the apex court
of our country has tried to protect this group of our society.
CONSTITUTIONAL RIGHTS OF TRANSGENDER-
the preamble of India
have always promised justice to each and every human being despite of their
caste, religion, economic, political or social status and have also highlighted
that each and every person is equal in the eyes of law but transgender has
always been deprived of their constitutional rights maybe because of the earlier
policies made only recognized two genders-
male and female and due to this they were deprived of many rights which
includes the right to marry, vote, having their own property, etc.., the basic fundamental rights which included
all the citizens under article 14, 15, 16 and 21 also included them.
On 6th September 2018 a
very landmark judgment was passed by the supreme court of India - NAVTEJ SINGH
JOHAR v. The constitutionality of IPC Section 377 was contested. This clause
specifies that "voluntarily carnal intercourse against the order of nature
with any man, woman, or animal shall be punished with imprisonment for life, or
with imprisonment which may extend to ten years with a fine." The
petitioner asked for the right to sexuality, the right to sexual autonomy, and
the freedom to select a sexual partner to be recognized in Art. 21 of the
Indian Constitution. Due to the inherent nature of sexual orientation as a
component of one's self identity, The Honorable Supreme Court decriminalized
Sec. 377 and ruled that denying the following rights would violate one's right
to life and other fundamental rights that cannot be denied.
Many amendments in were
also made in Immoral Traffic
Prevention Act, 1956 and Right of Transgender Bill 2014
We all are aware of hathras and nirbhaya rape case these
cases are the kinds which will always going be in our hearts these two cases
literally shook each and every human being. These two cases bought a lot of
great amendments in our criminal law specially the rape laws but if we read
section 375 of Indian Penal Code it does not include transgender in its
definition and nor there is any other rape laws which protects the rights of
transgender.
The bill might, however,
be passed by the Lok Sabha and then expire. After two years, the Lok Sabha received
a fresh bill, the Transgender Persons (Protection of Rights) Bill, 2016. The
2016 Bill diverged considerably from the NALSA ruling in compared to the 2014
Bill. The Parliamentary Standing Committee on Social Justice cited many
instances where the 2016 Bill differed from NALSA in its 43rd Report. The Lok
Sabha, on the other hand, passed the Bill without considering the
recommendations of the Standing Committee, and it became the Transgender
Persons (Protection of Rights) Act, 2019. Many transgender people opposed the
bill, alleging that certain provisions were unlawful. The Petitioners urge the
Court to strike down Sections 4, 5, 6, 7, 12(3), 18(a), and 18(d) of the Act.
Furthermore, they urge that the Court issue a Writ of Mandamus mandating the
Centre and State Governments to provide reservations for transgender
individuals in public employment and education, as advised by the Court in
NALSA.
INTERNATIONAL
CRIMINAL LAW-
The International Criminal Court held that rape is a
gender neutral crime in AKAYESU case - this akayesu case was
the first ever case where rape committed on both men and woman was
penalized. Rape was defined by
identifying the following elements: sexual penetration to the victim's mouth,
vagina, or anus, by the perpetrator's penis or any other object, with a threat
of force or coercion directed at the victim or any such third party.
Rape laws in
other countries-
In 2013 USA in U.S. code (i.e. the primary criminal code
of U.S.A.) has amended the definition of rape and made it gender neutral.
Canada, on the other
hand, modified its definition of rape and sexual crime in 1983. In Canada, the
word rape has been replaced with sexual assault in the definition of rape, and
the maximum penalties for sexual assault, sexual assault with a weapon, threats
or harm to a third party, and aggravated sexual assault have been prescribed as
imprisonment for 10 years, 14 years, and life imprisonment. The Canadian
position on rape legislation was repeated in the Justice Verma Committee report
(Supra). However, numerous experts have criticised Canadian rape legislation
change as being shallow. It has been argued that the change lessens the harm of
rape by reducing it to sexual assault. Philippines in 1997 recognized rape as gender neutral
offence and bought changes in its penal code.
Previously, male assault
was not legally recognised under English precedent-based law. Rape of Mens was
documented and punished as non-consensual buggery, which had a lighter
punishment. From 1994 forward, the law considers men to be victims of assault.
Assault is defined as the entrance of the respondent's mouth, buttock, or
vagina with the respondent's penis under the 2003 Sexual Offences Act. While
criticising, the Legal executive in Ismail has also prohibited distinguishing
between "mouth, butt, or vagina." Guys are also shown as victims in
the Scottish and Irish Sculptures for Sexual Offences. rather, a female or a
non-male individual cannot be prosecuted with Assault; rather, they can be
charged with Rape, which has a lower term.
A CASE USED FOR GENDER NEUTRALITY
Rape is mostly a crime of
domination. It is an invasion and violation of sexual autonomy and physical
integrity. It is regrettable that the offence is primarily perceived in terms
of gender. Contrary to popular assumption, rape is common among gays, the
transgender population, and even males raped by women. As a result, there is a
normative and functional need to change the present rape legislation to
encourage gender neutrality.
ENCLOSURE OF THE TRANSGENDER
The distinctiveness of
rape legal standards affects more than only male rape victims or women raped by
women. Transgender persons are excluded from the rape conversion, which assumes
binary genders. In India, the transgender population has been mistreated,
abused, and discriminated against.
In India, transgender
persons face sexual assault, acid attacks, deformity, and other forms of
physical violence. This may be attributed to transgender people's curiosity
about their sexuality, as well as a culture that is hostile to anything
unexpected or unconventional. The NALSA (Supra) ruling recognised transgender
as the third gender, and it was an important step towards non-binary
inclusivity. However, other from legal recognition, little has been done for
the underserved transgender population, and the fact remains that they are
raped, violated, and abused without being recognised victims under the
definition of rape. Gender neutrality in the definition will not only legally
recognise them as victims, but will also encourage them to come forward with
information about crimes committed against them.
CONCLUSION
India has made some
progress in recognising and defending transgender people's rights. Transgender
individuals were recognised as a third gender by the Supreme Court of India in
2014, and their constitutional rights were upheld. This important decision made
it possible for transgender people to get access to school, employment,
healthcare, and other social advantages.
In terms of rape
legislation in India, Section 375 of the Indian Penal Code (IPC) addresses rape
offences. Specific rules involving transsexual rape, on the other hand, may not
be specifically established in the law. The definition of rape under Section 375
is based on non-consensual sexual penetration and makes no distinction between
the victim's and perpetrator's genders. It is applicable to all persons,
regardless of gender identification.
It is important to note
that transgender people, like any other rape victim, have the right to report
and seek legal redress for sexual assault. Transgender victims should be
subject to the legal requirements of Section 375 of the IPC. Furthermore, the
Protection of Children from Sexual Offences (POCSO) Act protects all children
from sexual abuse, including transgender children.
While India has taken
measures to protect transgender people's rights, there are still obstacles to
successfully implementing and enforcing these laws. Transgender people are
frequently denied access to justice and support services because to
discrimination, stigma, and a lack of understanding.
It is recommended to
refer to latest legislative updates, consult legal professionals, or
organisations working on transgender rights in India to fully grasp the current
condition of transgender rape legislation in India.
Regrettably, simply
identifying non-male offenders and non-female victims of rape is insufficient.
The culture that believes in the truth of stereotypically gendered forms of
victim and offender must also develop, and gender neutralizing the law is one
way to do so.
All things considered,
there is a need to recognise that rape is an assault against dignity, bodily
integrity, and sexual autonomy, and that any and every victim deserves to be
recognised as a victim regardless of their Gender or the Gender of their
assailants. In order to establish Gender Neutrality and hence true gender
justice, both the notions of Victim and Perpetrator must be neutral. Rape is a
more serious crime than sexual assault. The International Criminal Law and the
US Federal Statute, which recognise Gender Neutrality in circumstances of
victim and perpetrator, are perfect models of Gender Neutrality across the
world.
KEYWORDS
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1.
HIJRA
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2.
TRANSGENDER
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3.
RAPE
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4.
SEXUAL ABUSE
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5.
GENDER NEUTRAL
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6.
POCSO
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7.
THIRD GENDER
|
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8.
SEX REASSIGNMENT SURGERY
|
BIBLOGRAPHY
Article Information
COMPARATIVE STUDY OF TRANSGENDER RAPE LAWS IN INDIA AND OTHER COUNTRIES BY: RISHIKA SALUJA
Authors: RISHIKA SALUJA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/18
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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