The 'omitted' reality of India's Transgenders: Where does justice lie for those whom the law neglects?

By Gajanan Khergamker*

In the corridors of justice, the essence of the law frequently clashes with its literal interpretation, particularly when such interpretation undergoes significant transformation. The Bharatiya Nyaya Sanhita (Indian Justice Code), which came into effect in July 2024, signifies a considerable transition by abolishing Section 377 of the Indian Penal Code. Once regarded as an archaic provision that criminalised same-sex relations, Section 377 evolved over time, through judicial interpretation, into a protective mechanism for individuals on the fringes of society.

The Supreme Court of India, in 2018, ruled Section 377 unconstitutional in cases involving consensual same-sex relationships. This landmark decision marked a vital step toward inclusivity, reflecting India’s acknowledgment of the fundamental rights of the LGBTQ+ community. However, the provision was not entirely eliminated; it continued to serve as an important instrument against sexual violence affecting Trans individuals and male victims, acting as a potent, albeit often unrecognised, safeguard.

With the total removal of Section 377 in the Bharatiya Nyaya Sanhita, this essential protective measure has been obliterated, further complicating the already fraught relationship between the trans community and the justice system, while raising crucial questions about the motivations behind such sweeping legal changes.

Under the new code, India’s legal definition of rape has been constricted to apply exclusively to offences involving male offenders and female victims, mirroring the previously repealed Section 375 of the Indian Penal Code. This limited perspective fails to address the harsh realities encountered by trans individuals, who continue to face severe threats of sexual violence. For numerous survivors within the trans community, Section 377 was their sole legal avenue, particularly in a society that often overlooks their trauma—an oversight alarmingly perpetuated by those assigned to protect them.

In its absence, trans victims of sexual assault are relegated to categories such as “grievous hurt,” effectively diminishing the seriousness of their experiences in the eyes of the law, which lessens the punishments for offenders and hampers vital progress towards dignity and respect.

Transgender individuals, officially acknowledged as a “third gender” in 2014, found a glimmer of hope in the Transgender Persons (Protection of Rights) Act, 2019. However, this law appeared more symbolic than substantial, prescribing a mere two-year prison term for offences against Trans individuals—a penalty far less severe than that for analogous offences against cisgender women.

It was Section 377 that, to some extent, allowed the trans community to pursue justice with greater weight, albeit reluctantly provided and seldom achieved.

The removal of Section 377 also signifies a shift away from inclusive language that recognised the varied victims of sexual crimes. Take, for instance, the case of a Trans woman assaulted in Mumbai’s Bhiwandi, Maharashtra, last year. The police invoked Section 377, treating the crime with the seriousness it warranted. Similar instances have been addressed under Section 377, providing protection to individuals whose suffering might otherwise be neglected and whose trauma had, until recently, been accorded a measure of validity by a legal framework slowly progressing beyond binary definitions.

Today, activists articulate the frustrations of a community left isolated in their quest for justice. Vulnerable to discrimination and disbelief, many Trans individuals encounter ridicule or dismissal when approaching law enforcement, their appeals often trivialised by societal prejudices. According to the National Crime Records Bureau (NCRB), Trans individuals constituted only 0.006 percent of all recorded victims in 2020—a figure so minuscule that it highlights systemic indifference. This statistic does not indicate a lack of violence but rather an institutional failure to acknowledge, document, and address it.

With the elimination of Section 377, the Bharatiya Nyaya Sanhita appears to convey a position that jeopardises the fragile support once extended to the Trans community. A restructured legal framework that overlooks the specific needs of this community undermines their access to legal recourse and representation. Lawmakers may advocate for a more streamlined criminal code, yet this omission raises significant concerns about their sensitivity to the lived realities of marginalised groups. To erase without adequate replacement, to redefine without considering those most affected, is to dilute the very essence of justice for all.

This legal transformation leaves the Trans community grappling with uncertainty, navigating a justice system seemingly determined to overlook their distinct challenges. Their struggle for dignity, equality, and safety remains ever relevant. Yet, as the ink dries on the Bharatiya Nyaya Sanhita, one cannot help but ponder: In an India that professes freedom, where does justice lie for those whom the law neglects? The struggle, it appears, persists—resonating through courtrooms, murmured in police stations, and reverberating through communities where justice remains a fleeting aspiration.

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*Founder Editor of The Draft. A version of this article first appeared here

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