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The Delhi High Court today issued notice in a petition challenging the constitutional validity of Section 377 of the Indian Penal Code (IPC) to the extent that it excludes transgenders as victims of unnatural offences. The petition also seeks a declaration to read down Sections 8 and 10 of the Indian Penal Code to include Transgender/Third Gender and not just male and female.
Notice to the Central Government was issued by a Division Bench of Chief Justice DN Patel and Justice C Hari Shankar in public interest litigation preferred by an Assistant Public Prosecutor, GNCT of Delhi, Jamshed Ansari.
It is the petitioner’s case that Section 377 IPC violates Articles 14, 15 and 21 of the Constitution of India insofar as the definition thereunder does not include transgenders/third gender. The petition filed through Advocate Gaurav Kohli reads,
“..the “transgender/third gender” is neither male nor female and the provisions of unnatural offences as provided under Section 377 of Indian Penal Code when interpreted strictly as has to be, the protection of said provision is denied to “transgender/third gender” victims…
…the law laid down by this Hon’ble Court in Navtej Singh Johar and Ors non-consensual unnatural sexual acts are still punishable offence under Section 377 of IPC but this penal provision is silent when victims of non-consensual unnatural sexual acts are belonging to “transgender/third gender” community.“
As a result of the combined reading of Section 377 and Sections 8 and 10 IPC, there is no protection to transgender/third gender persons when an unnatural offence is committed against them, which strikes at the dignity and self-worth of an individual.
It is pointed out that the Supreme Court in the NALSA judgment has declared “transgender” as “third gender”. Therefore, Section 377 of IPC has become arbitrary, illegal and unconstitutional, to the extent that it is interpreted to exclude victims of unnatural offences who are transgender/third gender.
To support the claim of discrimination due to lack of recognition of transgender under the IPC, the petitioner also referred to an instance where the Delhi Police had refused to register an FIR for an offence under Section 354-A against a victim of sexual harassment on the ground that the Section applied only to women.
The petitioner also referred to Article 39-A of the Constitution of India to invoke the duty of the State to provide equal justice and free legal aid to all citizens irrespective of economic or other disabilities.
The petitioner thus seeks an order to declare Section 377 IPC as unconstitutional to the extent that it excludes transgenders as victims of unnatural offences or to read down the Section.
The matter will be heard next on January 7.