Where the new law on sexual assault woefully fails is in its exclusion of the transgender community

The Criminal Law (Amendment) Act, 2013 has been passed by Parliament and given assent by the President. Looking at the tenor of the debates leading up to the Bill becoming a law, one would be forgiven if one got the impression that the struggle was mainly between a misogynistic and patriarchal viewpoint which found full play in Parliament and the voices of women who sought to make the case for the right to live with dignity, free from the oppression of sexual violence.

However there remains a third viewpoint which, unfortunately, has found no voice in any mainstream discussion on the issue of sexual violence. This viewpoint emerges most strongly from the lived experiences of members of the transgender community.

While Section 375 of the Act broadens the definition of rape beyond peno-vaginal intercourse, it is myopic in restricting the category of victim as being women only. This has very serious repercussions from the point of view of the transgender community, many members of whom identify themselves as women but are not born female.

Section 377

The sexual violence suffered by transgenders has been extensively documented by the PUCL-K in its germinal report on “Human Rights Violations Against the Transgender Community.” The gravity of the violence suffered by transgenders was placed before the Delhi High Court in Naz Foundation v. NCR Delhi. The court relied upon the narratives of the brutal and pervasive experiences of sexual violence perpetrated on transgenders and identified the reason for this violence being the outdated and archaic Section 377 of the Indian Penal Code. In fact, one of the key reasons for the reading down of Section 377 by the court, was that it legitimises these forms of brutal violence. The High Court also recommended that Parliament ought to delete Section 377 and formulate a comprehensive law on sexual assault which envisaged that any person who is a victim of sexual assault must have the protection of law.

The progressive vision of the Delhi High Court was taken forward by the Justice Verma Committee in its landmark recommendations founded on the understanding that transgenders are full citizens and entitled to the right to live with dignity and freedom from sexual violence in line with the Constitutional guarantees. The Verma Committee did this by the simple legal stratagem of using the word “person” in place of “woman” to cover all victims of sexual violence.

In this context, it is deeply disheartening that the Criminal Law (Amendment) Act 2013 has betrayed the hopes and aspirations of the transgender community to a life free from sexual violence. In provision after provision, the Act insistently and regressively defines the victim of sexual violence as being only a “woman,” thereby narrowing the scope of protection granted.

Under the old rape law, it could be argued that non-consensual peno-vaginal intercourse could only be perpetrated by a man on a woman.

However the acts contemplated under the new definition of rape in the law could well be perpetrated by a man on the body of any person. The gender of the victim should have been irrelevant in the eyes of the law and protection should have been extended to all persons.

Diluting identity

The resistance to broaden the category of victim to that of any person stems from a viewpoint that the word “person” would dilute the identity of women as traditional victims of sexual violence. Recognising the heroic struggle of Mathura and Bhanwari Devi against sexual violence, ought not to mean that we disregard the struggles of persons such as Kokila. In Naz Foundation v. NCR Delhi, an affidavit was filed by Kokila, a hijra, detailing the horrific rape to which she was subjected. She was anally raped by ten goondas and subsequently brutally sexually assaulted by policemen inside the police station. The police tortured her with a burning coir rope.

The new law on sexual assault ought to have shifted away from the patriarchal perspective that it is women’s bodies which are receptacles of honour and chastity. The law ought to have recognised that all forms of sexual assault are crimes of violence and subjugation and there is no place for honour in the understanding of these crimes. The new law partially incorporates this shift by broadening the definition of rape beyond peno-vaginal intercourse to include all forms of penetration. Where it woefully fails is in its insistence on retaining only women as victims. This reinforces the patriarchal logic that rape is intrinsically bound to notions of shame and honour and presages no change in the way the rape victim will be treated.

The hope ignited by the Naz decision, and fuelled by the Verma Committee recommendations has been extinguished by the Criminal Law (Amendment) Act, 2013. Having missed this historic opportunity for inclusive law reform, there is now a long struggle ahead for the transgender community to ensure the most basic of rights, protection of the right to a life free of sexual violence.

(Aarti Mundkur is a lawyer on the Board of the Alternative Law Forum. Arvind Narrain is a lawyer with the Forum.)

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