Delhi High Court Issues Notice On PIL To Criminalize Sexual Offences Against Transgender Women, Children; Says Prima Facie Only Parliament Can Do It

The Delhi High Court on Wednesday issued notice on a plea seeking inclusion of transgender women and transgender children as victims in relation to the chapter concerning sexual offences against women and children under the Bharatiya Nyaya Sanhita, 2023. A division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela sought response of the Union Government and listed the matter for hearing in December. The Court also appointed Senior Advocate N Hariharan as amicus curiae in the matter. The plea has been filed by Dr. Chandresh Jain, who was appearing in person. The PIL concerns various penal provisions described under Section 18 of the Transgender Persons (Protection of Rights) Act, 2019.The provision outlines penalties for offenses against transgender persons, the punishment for which is imprisonment for a term of not less than six months, extending to two years, along with fine. Jain also urged the Court to interpret provisions of chapter 5 of BNS, which relates to offences against women and child, to include transgender women and transgender children. The plea also raised other issues touching upon the welfare measures to be provided to transgender persons in the society as per the mandate of the NALSA judgment of Supreme Court. During the hearing, the Bench expressed its prima facie opinion that the issue lies within the legislative domain and policy making as judicial interference would amount to re-writing the law. “Somebody thinks that in a particular nature of offence, penalty should be life or death, such issues cannot be subject matter of adjudication of courts. It depends on the legislature. It lies in legislative realm. What you say is offences under Section 18 and the punishment prescribed therein are not adequate, whether or not it is adequate, can this be subject matter of adjudication of courts?” CJ asked Jajn. “The offences under Section 63 to 73 under BNS are not safeguards. You are asking us to legislate.… who has to do it? We cannot interpret something which is not there at all,” the judge added. The Court remarked that it was not saying that Jain has not raised a legitimate issue but the matter has to be redressed in any other forum and not by the judiciary. The Bench then asked Hariharan, who was present in Court, as to what was the position prior to enactment of the 2019 Act. “The NALSA judgment was delivered in 2014. It recognized various rights of transgender persons. The court directed central government and state governments to come up with certain policies. After that the central government enacted the law (of 2019). In this Act, council is created and other measures are provided. It is said that every effort should be made not to discriminate them. Certain penal provisions are also there. See Section 18. Certain offences are defined and penalties are prescribed. That's not the issue. He says that offences against women and children under BNS should include transgender women and transgender children. There are other enactments in which protection is granted to women and children, those should be extended to transgender women and transgender children….whether any offence under chapter 5 (of BNS) committed against such transgender women and transgender children will come under BNS or not, that is the issue. As it is only against women ans not transgender woman,” CJ told Hariharan. The Bench further said that there has to be a change in the legislation in the definition clause as a person can be punished of an offence which is defined by law. It added that unless the legislature provides, the Court cannot interpret as it is the basic foundation of criminal law that once can be punished of an offence which is defined by the rule making body. “The interpretation will not be possible prima facie. Had it been possible, Section 376 of IPC would have been interpreted long ago and included transgender women. It was never done. It was ultimately left to the legislature and government of the day to formulate the policy. That is how the enactment (of 2019) was made. If we feel that yes these offences under Section 63 should include transgender women and children as victims, the call to be taken is by legislature, keeping in view the principles of criminal law that no one can be punished for offence which is not defined by rule making authority. Article 20 contains that. That has to be taken into consideration. Perhaps better course would have been to ask the petitioner to make representation to the government,” the Court said. However, having regard to the nature of issue involved in the matter, the Court appointed Hariharan as amicus curiae and asked him to provide his assistance. Title: Dr. Chandresh Jain v. Union of India & Ors

Delhi High Court Issues Notice On PIL To Criminalize Sexual Offences Against Transgender Women, Children; Says Prima Facie Only Parliament Can Do It

Nupur Thapliyal

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