The Delhi High Court, in what seems to be an inclusive move, has ruled that section 354A of the Indian Penal Code can now be used by transgender persons to register complaints of sexual harassment. Section 354A of the IPC deals with sexual harassment and punishment for sexual harassment.
This came as the High Court heard a petition by a transgender student from Delhi University who wanted to lodge a complaint against male students who allegedly sexually harassed her, but was not entertained by the police. According to the police, there was a lack of an appropriate penal section under which they could register such a complaint
“The Petitioner is painfully aware that she was sexually harassed because of her gender identity and expression, which is that of a transgender woman. The Petitioner is also aware that she was denied a legal remedy because of her gender identity and expression as a transgender woman,” the petitioner had contended.
Screenshot courtesy: Indian Penal Code
The petitioner also argued that interpretation of the section 354A in a way that it denies protection to someone who does not conform to the gender binary of “woman” based on sex assigned at birth is a violation of the complainant’s fundamental rights under Articles 14 (right to equality), 15 (prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth, or of any of them) and 21 (right to life and liberty) of the Indian Constitution.
While a division bench of Justices Siddharth Mridul and Sangita Dhingra Sehgal asked the Central government to make clear its stand on the issue, this did not happen. The Delhi police, however, intervened and registered the petitioner’s FIR under section 354A of the IPC and proceeded to investigate the case.
The Delhi police standing counsel (criminal) Rahul Mehra told the court that on instruction of the Commissioner of Police, Delhi: “[…] if a cognizable offence, under the provision of Section 354-A IPC, in particular, sub clause (i), (ii) and (iv), is made out on the complaint of a transgender, the same shall be registered, in accordance with law, in terms of the decision of the Hon’ble Supreme Court in the case of “National Legal Services Authority vs UOI” 2014 5 SC 438.” (sic)
With this response, the petitioner did not press the proceedings further and the case was disposed of.
The bench also allowed the petitioner to maintain anonymity and directed that the cause title would read, Anamika versus Union of India & Ors. The bench also stated that the Supreme Court’s National Legal Services Authority of India (NALSA) judgment of 2014 was gender neutral.