Indian Penal Code And The Rainbow Community

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution”

One would expect that the rainbow community would receive protection under the Indian Penal Code; the primary criminal law statute which is meant to protect all citizens alike without discrimination. Unfortunately, to this day even after Navtej Singh Johar and NALSA judgments; the law does not do enough to protect them; not even from violent crimes.

The Indian Penal Code uses heteronormative language and there are specific provisions that make certain acts offences only when it is committed by a man against a woman. Any person that stands outside of this binary would receive no protection from the offences so described within the centuries old statute in spite of the amendments it has had over the years. “Man” and “woman” are both defined under the said Code, under Section 10 as follows:

“The word “man” denotes a male human being of any age; the word “woman” denotes a female human being of any age”.

The above in itself traps the law within the binary of man and woman and entirely leaves out transgenders and intersex persons. More so, since said code assumes that several of the offences contained within it can only be committed by a “man” and against a “woman” which is addressed below chronologically:

Sections 313 and 314 describe offences relating to causing miscarriage in a woman and thereby causing her death respectively. However, it is possible for a transgender man who retains functioning ovaries and a uterus to get pregnant but he would, in the ordinary course of events then be denied protection under this provision. This is more relevant in the context of the western world becoming more inclusive by referring to people who can give birth as birthing persons instead of just mothers or women.

Sections 354 to 354D describe certain offences that can only be committed by a man against a woman. They assume that these offences can only be committed by one category against another. This only shows how deep rooted in patriarchy and heteronormativity these provisions are. Transwomen receive no protection under these provisions. At this juncture, it is also crucial to note that men receive no protection from criminal force with intent to outrage modesty, sexual harassment, assault with intent to disrobe, voyeurism and stalking. This is more important given the fact that news headlines from time to time carry stories of women stalking and killing their boyfriends. The definitions of these offences assume that it is only women that can be sexually harassed or have modesty that deserves to be protected or that it is only women that can be stalked.

Section 366 makes it a punishable offence to kidnap or abduct or induce a woman to compel her marriage. Gay men and transgenders are often compelled against their will into marriages with no respect for their sexual autonomy destroying not only their lives but that of their prospective partners. Yet, they receive no protection under the Code.

The chapter on sexual offences under the Indian Penal Code exclusively protects women from sexual offences and excludes several categories under the rainbow community. It is shocking to note that Section 375 is rooted in the notion that it is only a man that can rape a woman. It does not grant any protection to men, intersex persons and transgenders from what is understood to be one of the most violent of crimes that can be committed. Section 376B penalizes sexual intercourse by a husband upon his wife during separation, and in the context of the Madras High Court decision earlier described hindu transwomen would receive protection under this provision.

It is also noteworthy that these provisions are in stark contrast with the meagre punishment of six months to two years with fine provided under The Transgender Persons (Protection of Rights) Act, 2019 for offences including sexual offences committed against transgenders. This would only go on to indicate that the law continues to discriminate against transgenders till date and that it sees them as lesser citizens.

Section 498 makes it a punishable offence to detain or take away a married woman with criminal intent. The Code is once again unprotective of transwomen who are married. Section 498A makes it a punishable offence for a husband or relative of husband of a woman subjecting her to cruelty but it remains unknown to this day whether a transgender in a marriage would be protected under this provision. This is more relevant in the context of the Hon’ble High Court of Madras holding that a marriage solemnized between a male and a transwoman both professing Hindu religion is a valid marriage in terms of Section 5 of the Hindu Marriage Act. The ambiguity is profound, especially in the context of the NALSA judgment permitting self determination of gender.

Section 509 makes insult to modesty of a woman by word or gesture or act with intent a criminal offence. Once again, unfortunately it leaves out men and transgenders.

Section 377 earlier (before Navtej Singh Johar vs Union of India) criminalized voluntary carnal intercourse against the order of nature. It no longer criminalizes acts which are done with free consent. However, with the words of the provision remaining unchanged the level of protection received to persons irrespective of gender and sexuality remains unclear.

Author. is a practicing Lawyer at Kerala High Court.

Views are personal.