The Delhi High Court on Wednesday issued notice to the Central government on a plea seeking directions to recognise the offence of rape against transgender women.
A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela directed the government to file its response within six weeks.
The Bench also appointed Senior Advocate N Hariharan as Amicus Curiae to assist the Court in the case.
"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," the Court said.
Hariharan, who was present in court today, said that recognising the offence may be possible.
However, the Court expressed a prima facie opinion that interpreting the provision to include transgender women and children in Chapter 5 of BNS (offences against women and children) may not be possible.
"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 Court remarked.
The public interest litigation (PIL) petition filed by one Chandresh Jain has asked the Court to interpret Section 63 of Bharatiya Nyay Sanhita (BNS) to include trans women into it.
At present, Section 63 says "a man commits rape if he penetrates a 'woman's' body...".
It does not include transgender women.
Notably, in his plea, Jain also asked the Court to pass orders to include trans men, non-binary persons, and intersex individuals who are anatomically capable of vaginal penetration as victims in Section 63 of BNS.
He also sought a direction to extend the protection of Chapter 5 of BNS to trans persons.
Jain further asked for a declaration that Section 18 of The Transgender Persons (Protection of Rights) Act, 2019, is ultra vires the Constitution.
Section 18 outlines offences against transgender persons.
Petitioner Jain argued that the punishment prescribed for the offences under the provision ranged from six months to two years, which is disproportionately low when compared to the criminal provisions in other statutes penalising offences against other genders.
The plea argued that the Supreme Court judgment in the NALSA case has recognised transgender persons as the third gender and therefore, the Section 18 provisions are against the said judgment.