A PIL in the Delhi High Court seeks to include transgender women under rape laws, challenging Section 63 BNS and Section 18 of the Transgender Rights Act. Senior Advocate N Hariharan has been appointed as Amicus Curiae to assist the Court.
New Delhi: The Delhi High Court on Wednesday issued a notice to the Central Government on a public interest litigation (PIL) seeking directions to recognise rape as an offence against transgender women. The Court has asked the government to file its response within six weeks.
A Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela also appointed Senior Advocate N Hariharan as Amicus Curiae to assist the Court in the matter.
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The Court said,
“The petition urges the court to interpret the provisions of Chapter 5 of the BNS, which are in relation to sexual offences against women and children, to include trans women and trans children as well. There are certain other issues which have been raised in the petition as well, touching upon the welfare measures to be provided to trans persons in society as per the mandate of the Supreme Court judgment in NALSA. Having regard to the nature of the issue involved in this case, we request Shri n Hariharan to assist the court as amicus curiae,”
Hariharan, who was present in court on Wednesday, stated that recognising the offence against transgender women may be possible. However, the Court also expressed a prima facie opinion that such an interpretation might not be legally feasible.
The Court remarked,
“This interpretation would perhaps not be possible. That is our prima facie opinion. If that were possible, 376 [of IPC criminalising rape] would have been interpreted to include transgender women,”
The PIL has been filed by Chandresh Jain, who has requested the Court to interpret Section 63 of the Bharatiya Nyay Sanhita (BNS) to include transgender women.
Currently, Section 63 states that “a man commits rape if he penetrates a ‘woman’s’ body,” but it does not extend this protection to transgender women.
In addition, Jain has also sought a declaration that Section 18 of The Transgender Persons (Protection of Rights) Act, 2019, which outlines offences against transgender persons, is ultra vires the Constitution.
The petitioner argued that the punishments prescribed under Section 18, ranging from six months to two years, are disproportionately low when compared to criminal provisions under other statutes that protect other genders.
Jain further highlighted that the Supreme Court’s landmark judgment in the NALSA case recognised transgender persons as the third gender. Therefore, he contended that the provisions under Section 18 are inconsistent with the principles established in the NALSA judgment.
The PIL raises significant questions about the legal recognition of transgender women under sexual offence laws in India, the adequacy of protective measures under existing legislation, and the need for aligning criminal provisions with constitutional principles and Supreme Court judgments on gender rights.
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