A person waiting for her mother at the bus shelter is suddenly attacked by the police. As soon as her mother comes to know, she rushes to the spot, only to be brutally beaten. So much so, that they’re admitted to the General Hospital in Ernakulam.

What could their fault possibly be? What could they have possibly done?

It’s not about what they did, but about who they were. These people identified as transsexuals. The police have continued with their mistreatment of the LGBTQ+ community even after Section 377 of the Indian Penal Code (which criminalized consensual homosexual acts) was scraped off. It is these deplorable actions done by the people in khaki that must discontinue.

BEFORE SECTION 377 WAS SCRAPPED

A young transgender was brought to the police station in Hyderabad. She was verbally abused, humiliated, and stripped naked. When she declared herself as HIV Positive, the policemen covered their faces in disgust but continued the abuse nevertheless. She was tortured like this for four hours. In the southern city of Chennai, a police officer suspended a transgender woman using a rope and penetrated her postoperative genitals through a baton. She was left to bleed throughout the night and was admitted to a hospital in the morning. In Ajmer too, a woman from the LGBTQ+ community was raped during custody by three policemen.

This was (and unfortunately, still is) our very India where rights of the accused suddenly go for a toss if somebody identifies as belonging to the LGBTQ+. Being from this community proves to be like a curse in this country because such people are considered to be alien by our society. As per the 2011 census, India’s trans population consists of 4,90,000 people but only a minuscule amount is able to get any profitable employment. According to a study done by the National Human Rights Commission, 92 percent of transgenders are deprived of participating in any economic activity in the country. Even qualified ones are refused jobs, and even if they are accepted, landlords refuse to give them accommodations, forcing them to quit. The alienation is thus self-evident.

In the path-breaking judgment of the Supreme Court in National Legal Services Authority (NALSA) v. Union of India and others in April 2014, the court ruled that the LGBTQ+ community is entitled to all the fundamental rights and should receive special benefits in education and jobs. It said that the government should comply with the international conventions it is a party to, which includes the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. It cannot be emphasized enough that the fundamental rights include the right to life and liberty, which continues to be still denied to them.

The Telangana Hijra Transgender Samiti reported 40 attacks on transgender people in largely the second half of 2014 in the southern city of Hyderabad.

A study was conducted by a team from the National Institute of Epidemiology among 60,000 transgender people across 17 states in 2016. The team held group discussions and interviewed community leaders. These meetings revealed that the biggest perpetrators of violence against transgender people were police and law enforcing authorities. These people in khaki, who are bound to shield the transgender, were the ones they faced the most threat from. In majority of these states where this study was conducted, the people said that they had faced discrimination, physical and sexual abuse from law-enforcing authorities.

AFTER SECTION 377 WAS SCRAPPED

What a dream that would have been if this passionate judgment rendered everything humane and pushed the bitter reality behind. Unfortunately, it’s a distant reality. Just three days after that judgment, two transgender women were physically assaulted by a policeman because they were begging next to the Rajiv Chowk metro station in Delhi. One of them filed a complaint on October 6, 2018, alleging that she was regularly harassed by police officials in Connaught place, the prime shopping and business hub of the capital.

Now that Section 377 has been done away with, the police use different laws such as Section 420 of the IPC which deals with cheating and dishonesty. While the scrapping of Section 377 is a huge step, this is still a long battle for the LGBTQ+ community which experiences homophobia from the police, coupled with homelessness and unemployment.

SECTION 18 OF THE TRANSGENDER ACT, 2019

Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 penalizes denial of the right of passage or access to public places, forceable eviction, bonded labor, and all types of abuse to the transgender. It prescribes imprisonment of a minimum of six months which may extend up to two years along with a fine.

However, this section has become a bone of contention as it prescribes the lower form of punishment for abuse towards the transgender than has been specified for the other genders in the Indian Penal Code. The punishment prescribed against any physical or sexual abuse against transgender people is a minimum of six months which may extend up to 2 years. In contrast, the punishment for sexually abusing a woman can extend to the death penalty. Shouldn’t the punishment be equal for all genders? Sexually abusing a human being is a heinous crime, regardless of which gender the individual belongs to. How would the suffering, trauma, and pain of a transgender victim be any different? It would have been more logical if the laws against sexual offenses were made gender-neutral, or the punishment prescribed in this act was similar to that of existing laws. Also, the definition of abuse in this section is said to be arbitrary and vague by rights organizations.

THE POLICE COMPLAINTS AUTHORITY

The Police of our country came into existence through The Police Act, 1861. Routed in the British era, this system ensured that those lower in rank obeyed orders blindly. Even after 73 years of independence, the system remains the same; only, the power held by the British is now held by such people occupying higher places in the country’s hierarchy

Various high power committees and commissions examined the issue of police reforms: National Human Rights Commission, Law Commission of India, Ribeiro Committee, Padmanabhaiah Committee, Malimath Committee on Reforms of Criminal Justice System, National Police Commission, and the Sorabjee Committee. But none of the reforms suggested in their drafts was being implemented. It is then that the Judiciary stepped up in the case of Prakash Singh & Others vs Union Of India.

The Court directed for a Police Complaints Authority (PCA) to be set up in the districts and states. Its function is to look into complaints against police officers from the public in cases of misconduct. At the state level, the authority looks into complaints against officers of the rank of Superintendent and above while at the district level, it looks into complaints against officers of and up to the rank of Deputy Superintendent. The state authority is headed by a retired Judge of the High Court/Supreme Court, while the district one is headed by a retired District judge. The State Level authority takes cognizance of allegations of serious misconduct, which includes death, rape, or grievous hurt during police custody. The District level authority also enquires into actions involving grave abuse of authority, which includes incidents of land grabbing, extortion etcetera. Instances of police brutality can therefore be reported and action can be taken against erring officials. It is thus required that the transgender is sensitized towards this available option and does not feel faceless in times of trouble. However, it must be noted that more than a decade after this judgment came out, a lot of states have still not constituted the said authority. It took 11 years for the State of Tamil Nadu to constitute the PCA. It is only in December 2020 that Telangana has issued guidelines for setting it up and The Calcutta High Court has also expressed its disappointment about the fact that the PCA has still not been constituted in West Bengal.

The conviction rate of police personnel in cases of custodial harassment and deaths remain trivial. Between 2001 and 2018, 1,727 custodial deaths were recorded. But only 26 policemen faced conviction. Similarly, from the 2,000 human rights violations recorded between 2000 and 2018, only 344 policemen faced conviction. States like Tamil Nadu, West Bengal, Gujarat, Maharashtra and Andhra Pradesh recorded 0 convictions, despite 100 cases of custodial deaths being reported from them. This goes on to show that police personnel are part of the culture of impunity and when the protector is the perpetrator, legal remedies fall short of bringing out an effective solution.

INFERENCE AND CONCLUSION

Imagine waking up to a hostile home environment. Your parents scold you, their endearing hugs being a lost phenomenon. They think there’s something wrong with you. Not being able to tolerate this anymore, you decide to run away. You’re starting from scratch, just trying to survive when some people beat you up for no fault of yours. For us, even dreaming about this is horrendous. But for most of the LGBTQ+ people in India, this is the reality. Owing to the non-inclusivity in our society, a lot of them find their own parents to be non-supportive and even aggressive when they decide to come out of the closet. Having no option, they decide to leave their families and enter into begging or sex work in order to survive. But this just isn’t enough, they have the police, the representatives of the all-powerful state wreak havoc in their lives. While the community continues to seek acceptance, be it in terms of demanding separate toilets for them or sensitizing people towards their plight, most of our public and private spaces cannot claim to be all-inclusive. The community faces ruthless catcalling. Being called transgender is even seen as a mark of shame in society. This thus increases their vulnerability manifold.

Those long suffrage movements, the revolutions for freedom, imagined a country where everyone could have a peaceful state of existence. But have we actually lived up to those dreams, if we continue to subjugate 4.9 lakh, people of our country, into merciless treatment? Democracies are celebrated worldwide for their ability to accommodate the aspirations of their people. Then how can India, the largest democracy in the world, let its police ostracize people just because they love who they love.

The value of the judgments of our honorable courts impedes when it’s coupled with faulty implementation. Legal and structural reforms that can mandate early and strict implementation are the need of the hour. Not only implementation, but even sensitization also has its own importance. It’s pertinent that the police personnel understand the logic and ethics behind the changes introduced. Besides developing this ethical understanding, they must also stand forewarned about the punitive action which may follow if they showcase such discriminatory behavior. The LGBTQ+ community must also be apprised of its rights and the provisions they might avail of in face of such adversity.

But more than that, the burden falls on society. If the society is responsible for their vulnerability towards indiscriminate state action, it must take responsibility. The LGBTQ+ community vacillates between civilians’ ostracisation and the police’s inhumanity. If the society stops pushing the LGBTQ+ towards conditions of destitution, their vulnerability shall, to an extent, impede. Further, are the police and civilians locked in separate water-tight compartments? The answer is no. The police personnel eventually return home to their families; ultimately, everyone is part of the citizenry of the nation. If the stereotyping stops at the smallest unit of the society, the family, when will it continue from the hands of the state? It must be remembered that change doesn’t always trickle down from the top, it can very well also shove upwards to the highest pedestal. A very small change in outlook, thus, has its own importance.

It’s when such deplorable actions against our very own people stop when we can proclaim that we’ve lived up to the standards of humanity.

Written By: Yashna
About the Author
A bibliophile since childhood, Yashna loves to write about the issues that plague the world. She believes that small psychological changes at the individual level matter in resolving big problems. As a law and policy enthusiast, Yashna feels strongly connected to the cause of gender equality.