JUSTICE BEHIND BARS: INCARCERATION OF LGBT INDIVIDUALS IN THE INDIAN PRISONS
This article is written by Harsh Vardhan Yadav, a first-year law student at the Department of Law, Maharshi Dayanand University, Rohtak, Haryana
In her letter, Uttam would question, “Respected judge, is there no constitutional provision to safeguard transgender women’s rights in prison? Are we not Indian citizens? Are we placed among male prisoners only to satiate the lust of prison officials and other prisoners?
Uttam is one of the transwomen who were arrested by the police and lodged in the Nagpur Central Jail in India. The most unfortunate part of the incident is that Uttam and other four transwomen were lodged in prison cells designated for men. Though this was protested by Uttam and others, but their voices were crumpled, and protests subjugated by the concerned authorities.
RIGHTS IN THE INTERNATIONAL LAWS
Putting some light on international laws, the rights of the ace community can be derived from the United Nations Declaration of Human Rights, 1948. This inter-alia includes Right to Dignity (Article 1), Right to Life (Article 3), Prevention from inhumane treatment (Article 5), Right of Recognition before Law (Article 6), Right to Privacy (Article 12). In this background, it would be relevant to cite Article 3 and Article 6 of the UN Declaration of Human Rights. Article 3 states that every individual shall enjoy the right to life, liberty, and security of a person. Right to Life itself carries a broad concept and includes catena of rights as its branches. It includes the Right to Health, Right to Education, Right to Employment among several other rights.
Similarly, Article 6 of UNDR states that each individual has a right of recognition as a person before the law. It would be pertinent to mention that these statues are restrained by gender barriers. It shall apply equally to each individual irrespective of gender identity. It is by the virtue of these international laws that several countries have come forward and have duly recognized the rights of transgender communities.
LEGAL DEVELOPMENTS IN INDIA
As many as 15 countries around the world recognise the right to gender self-determination respecting the rights and liberties of transgender individuals. The Constitution of India guarantees the Right to Equality before Law (Article 14), Prohibits Discrimination in any form (Article 15), Right to Life & Liberty (Article 21), to every citizen. It is by the expansion of the Right to Equality before Law and Right to Life & Liberty that the rights of transgender communities were recognized in India.
Coming to the aspect of criminalising Homosexuality, Indian criminal law made homosexuality a punishable offence under Section 377 of the Indian Penal Code (“IPC”). The said penal provision carried punishment for “Unnatural Offences” in the form of imprisonment for life or a term which could extend up-to ten years, thus making it a heinous offence. It would be pertinent to mention that the said provision did not consider “consent” as an ingredient. Thus, even if two consenting adults would engage in any kind of sexual act allegedly “against the order of nature” it would imply committing a heinous offence in the country.
The earliest attempts to read down section 377 of IPC can be traced in the decision of the Hon’ble Delhi High Court in the matter of Naz Foundation vs. Government of NCT of Delhi wherein AP Shah, CJ. speaking for the bench cited the Objective Resolution moved by the first Prime Ministry of our country to hold that the Constitutional Law of the country cannot permit statutory criminal law to function with the popular misconceptions about the LGBTs. It was further held that “discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
Unfortunately, the said decision of the Hon’ble Delhi High Court (“HC”) came to be overruled by the Hon’ble Supreme Court of India (“SC”) in the decision of Suresh Kumar Kaushal vs. Naz Foundation.. The SC in the said decision held, “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy, and dignity, the High Court has extensively relied upon the judgments of other jurisdictions”.
The SC in another landmark decision of 2014, titled as National Legal Services Authority (NALSA) vs. Union of India had ruled in favour of the right of gender self-determination. The Court held “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.”
Finally, Section 377 was decriminalised and partially struck down from the IPC by the SC in the matter of Navtej Singh Johar vs. Union of India. It was because of this landmark decision a new ray of hope for the ace community rose.
It was after these judgments the Union of India came with the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020. Under these rules, an application to declare the gender can be made before the District Magistrate. There is absolutely no need of any medical or physical examination for the issuance of such a certificate. There are enabling provisions that provide for the change of gender as per the choice of the individual.
CRIMINAL JUSTICE SYSTEM & SAGA OF TRANSGENDERS
When the law promises the Right to Life & Liberty; when the provisions ensure an inclusive society; when the Constitution, as well as International Laws, forbids discrimination, where lies the problem?
Without asking their gender preference, the members of transgender community are put up in the prisons of either men or women and are subjected to great agony. Verbal and physical abuse is very common for such individuals.
Some of the authorities would come up with the idea of solitary confinement for tackling this issue but even solitary confinement is not the solution for this. The SC in Kishor Singh Ravinder vs. State of Rajasthan, held that to keep prisoners in isolation i.e., in solitary rooms for long periods (eight months to eleven months) are enough to be regarded as torturous and barbarous and would amount to breach of law which had been laid down by the SC in Sunil Batra vs. Delhi Administration. Thus, by no stretch of imagination solitary confinement can be used to ensure the rights of a transgender individual.
DETENTION OF “SEX-WORKERS”
Another issue is the hardships faced by the sex workers in the country. Though, prostitution is not per-se illegal in India, but, unfortunately, due to social taboos the police often tend to book the “sex-workers” under the provisions of the Immoral Traffic (Prevention) Act, 1956.(“PIT”)
A bare reading of PIT would render it absolutely clear that prostitution is not a punishable offence. It is only certain acts of running brothel, forcing people into prostitution, and trafficking for the purpose of prostitution, etc. which have been dealt as offences under Sections 3 to 9 of PIT.
Nonetheless, it is often seen in practice that the sex workers are booked under the said Act, and it is alleged that they are a part of the conspiracy to run a brothel, thus bringing the “act of prostitution” under the offences implicitly.
Unfortunately, the individuals booked under the PIT are sent to “correctional home” for the purpose of rehabilitation. It would be pertinent to cite the decision of Bombay HC in Asiya Anwar Shaikh vs. State of Maharashtra wherein it held that an adult victim under this act cannot be sent to correctional home against her wishes in the guise of “rehabilitation”. The very act of putting the victims of prostitution and voluntary sex workers into prisons defeats the purpose of enactment of the Immoral Trafficking (Prevention) Act. The object of the act was to prosecute and punish offenders who “sexually abused” and “forced others into prostitution” and not those who chose the profession out of free will or those who were themselves victims of such offences.
To conclude, India has progressed a lot in terms of enabling legal provisions in the country with respect to the ace communities, but on ground, the implementation of such provisions tends to be a major problem.
A judicious decision with respect to the allegations and social security needs to be taken keeping in mind the kind of physical and mental agony which may be suffered by such individuals. Furthermore, there is an urgent need to have special prisons where LGBT accused person(s) may be lodged if the need be. Till the time such special prisons come into force, the State can very well arrange Special Homes by collaborating with certain NGOs like was done in the cases of Juveniles.
At the end of the day, the State must not forget that it is under a Constitutional & Statutory obligation to protect the interest of such individuals irrespective of the allegations so levelled against them. It is only by increasing the access to justice, imparting legal literacy, ensuring proper rehabilitation and by talking about these issues in the mainstream that the problems can be redressed. It is equally important that the authorities are sensitized towards the needs and problems faced by the individuals from ace community.
NGOs, Advocates, Law Firms, Activists can play a major role in ensuring access to Justice for LGBTQ+ individuals so that their rights are given due respect in society. At the very same time, steadily and gradually the mindset of the Indian society would have to be changed. It is very important that an inclusive approach is adopted with due sensitivity to the needs and challenges faced by the ace community in their day-to-day life.