This post was edited by Archita Satish and published by Suhani Paruvelly from the Student Editorial Team.

President Murmu’s recent speech highlights the grim state of the Indian criminal justice system. She remarked against a suggestion to increase the number of jails. In the backdrop of this suggestion is the overflowing occupancy rates of current prisons, where the majority of those undertrial are from the marginalized sections of society. Prisons further exacerbate this marginalization, having retained colonial regulations. This exclusionary nature of criminal law in India has been present since the time of its colonial drafters.

Thus, scholars have argued that the criminal justice system is a tool for marginalization. Borrowing from Iris Young, ‘marginalization’ refers to the relegation of a group of people to a lower social standing or the edges of society. The Criminal Tribes Act is a prominent example. It classified several tribes as hereditary criminals who were predisposed to committing offenses. The act has been repealed, but the idea of exclusion using the criminal justice system still lingers, furthering socio-economic marginalization.

However, marginalization tactics are more subtle now. B. B. Pande argues that law can lead to marginalization, or as he uses ‘social exclusion’. He argues that it marginalizes through invisibility, stigmatization, and criminalization. The current literature focuses on criminalization with examples like triple talaq, begging, and anti-conversion laws. The focus is usually on how criminal law marginalizes communities with its coercive power. But as argued by Pande, the law can marginalize in different ways. I build upon Pande’s theory and illustrate how criminal law marginalizes communities through invisibility.

Invisibility refers to legislation where certain individuals or groups are not present. I illustrate this by drawing on the Transgender Persons (Protection of Rights) Act, 2019, and its impact on the transgender community. Understanding different ways of marginalization is useful as it helps to know the different ways through which the problem persists before attempting to tackle it. For the purpose of this article, the word ‘transgender’ is used as an umbrella term to describe a wide range of gender identities and experiences.

Gender and Invisibility

In Ms. X v. State of Uttarakhand, a person who underwent gender reassignment surgery and wanted to be identified as a woman was raped.  She went to file an FIR, but the investigating officer refused, saying they cannot file a complaint under Section 376 of the Indian Penal Code [“IPC”] because she is not a woman. It was only on appeal, that the Uttarakhand High Court, drawing from the NALSA verdict, held that she is a woman.

In a Pune sessions court case, four accused were granted bail due to no mention of “transgender” in Section 376 and Section 377 of the IPC. In another case, Chhattisgarh High Court granted bail to an accused having engaged in a sexual relationship with the victim under a false promise of marriage. After the promise was broken the victim filed an FIR under Section 376. The victim, a transgender woman, had undergone sex reassignment surgery three years ago. The Court held that the victim was not a woman as her organs had not completely developed.

These cases illustrate the difficulty arising from the invisibility of transgender rape in legislation. Due to no clear provision and biases, prejudices manifest in different ways, from officers refusing to register the offense to judges determining the gender of the victim. The exclusion of transgender rape has ultimately led to scenarios like the Pune case, where the accused are granted bail on the basis of ‘loopholes’ or invisibility of the community in legislation.

The Fault in our Laws

According to Section 375 of the IPC, which prescribes the punishment for the offense of rape, only a man can rape a woman. However, a survey from 2014-15 shows otherwise, with 20% of all transgender individuals persons and Hijras surveyed reporting having experienced sexual violence. The 2003 Peoples’ Union for Civil Liberties, Karnataka report has also mentioned that sexual violence is a constant and pervasive theme in the Hijra community.Madras High Court has also recognized that rape and sexual assault on the Hijra community are not uncommon.

The Supreme Court propounds equality of all genders, holding rape to be an offense that violates dignity. Likewise, the J.S. Verma Committee in 2013, suggested gender-neutral rape laws for the victim.Yet, criminal law does not recognize this equality. A glimmer of hope appeared in the form of The Transgender Persons (Protection of Rights) Act [“Act”], in 2019 in its recognition of ‘sexual abuse’ committed against the transgender community. However, what constitutes sexual abuse is not defined anywhere in the Act. A definition of ‘sexual abuse’ is available in India under Section 3(d)(ii) of the Protection of Women from Domestic Violence Act, 2005. However, considering this gendered definition, its extension and application in the instant case is dubious. This gives rise to two possible interpretations of whether ‘sexual abuse’ under the Act includes the offence of rape.

If the term contains the offense of rape, it results in discrimination. Section 18 of the Act levies a punishment of up to two years for sexual abuse. Meanwhile, if a woman is raped the minimum punishment is ten years of rigorous imprisonment. The sentencing for rape against a transgender person is patently unequal. Notably, the legislature’s rationale for rape sentencing is based on deterrence. According to the deterrence theory of punishment, the main motive behind punishment is deterring future crime. While whether this view is right or wrong is another debate, it is believed that a higher punishment is levied to deter potential offenders. The theoretical advantage of this approach is that it may reduce the crime rate.

The unequal punishment for similar offenses implies that lighter punishment is seen as good enough to deter rape when committed against transgender individuals. This means that criminal law does not consider rape against transgender persons to be as serious a crime, as compared to rape against women. Pathak has argued that prosecution of same-sex sexual violence under provisions like Section 377 creates an artificial difference between heterosexual and non-heterosexual sexual assaults. The J.S. Verma Committee had also observed that the word‘rape’ brings a high degree of moral and social opprobrium, which is not conveyed by the words ‘sexual assault’.

Therefore, this view reinforces a differential attitude towards gender non-conformity and perpetrates the idea that while heterosexual assaults are acts of rape, the latter only amount to a lesser violation of bodily integrity. It is difficult to imagine that a community can perceive itself as a valued part of society when offenses like rape committed against them are not considered to be equally heinous. When a community is treated as inferior to others, they are placed at a lower social standing and are thus marginalized.

 

The second scenario is that the term ‘sexual abuse’ does not consider rape. This is a clear-cut case of invisibility. It would mean the absence of a provision to penalize rape against transgender individuals. The Supreme Court has held that rape is a violation of the fundamental rights of an individual. Thus, the lack of a provision for transgender rape shows that the rights of the transgender community weigh less in the eyes of the Government. The feeling of unimportance resulting from the law of the nation failing to want to protect the transgender community’s fundamental rights leaves them with a lower social standing.Without the protection of the law, the community once again finds itself effectively marginalized.

Representation: A Cure for Invisibility?

Along with the biases pervading the criminal justice system, what is observed (and is a likely cause for these loopholes in the law) is the the glaring invisibility of the transgender community’s perspective during law-making. Anne Philips argues for the need for broad representation in the decision-making process. This ensures the presence of multiple identities. Ideas and presences are integrated concepts. Individuals due to their unique experiences and ideas should determine which laws should govern them. This in turn may help to prevent the invisibility of communities as their perspectives are well represented.

Looking at the Act in question, the Forty-Third Standing Committee on Social Justice and Empowerment highlighted this issue and argued that rape committed against the transgender community should be included in the IPC. In coming to this conclusion, it engaged with various stakeholders including members of the transgender community and experts. Yet the Government choose to ignore this suggestion. Transgender activists also mention the lack of discussion in the making of the Act. This illustrates the gendered nature of criminal law in India.

The operation of the Act continues this invisibility despite a provision for representation in the Act. Sections 16 and 17 create the National Council of Transgender Persons [“Council”], including five members belonging to the transgender community. However, the making of the body has been criticized for leaving undefined details regarding quorum requirements, minimum meetings, and decision-making processes. According to the annual report of the Ministry of Social Empowerment 2021-22, the Council has only met twice since its inception. Minutes of only the first meeting are available, with details for their second meeting in 2021 being conspicuously absent. Further, whether a third meeting was conducted in 2022 is not known. Last year, a member from the intersex community resigned from the Council citing the ceremonial nature of the post. The rest of the details regarding the Council are simply invisible. What this illustrates is the inadequacy of the current legislation to provide representation to the transgender community. Therefore, nothwithstanding the nuances of representation in addressing issues of marginalization, there is a need for an effective mechanism to provide better representation to the transgender community in an effort to address their invisbility.

Conclusion

This article highlights how criminal law marginalizes through the operation of invisibility, as opposed to overt criminalization. Using the illustration of the transgender community and rape law, it is observed that the ambiguity in the current legislative framework leaves the transgender community without a rape provision to protect their rights. Such invisibility appears to be a consequence of the absence of their voice and presence in the law-making and enforcing process. This is important as it shows the multifaceted nature of the problem of marginalization, particularly in its covert form, requiring a different mode of redress. The use of better representation in the decision-making process is suggested as a potential means to address this issue.