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been constricted to apply exclusively to offences involving male offenders and female victims, mirroring the previously repealed Section 375 of the Indian Penal Code.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.

---

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

Comments

How natural and organic farming can be a key to combating the climate crisis

By Raj Kumar Sinha* On July 9, while addressing the “Sahkar Samvad” in Ahmedabad with women and workers associated with cooperatives from Gujarat, Madhya Pradesh, and Rajasthan, Union Home Minister Amit Shah emphasized that natural farming is essential for both our health and the health of the soil. This is a significant statement in the context of addressing the climate change crisis. Natural farming can play a crucial role in combating climate change. Also known as organic farming, it is a system of agriculture that can increase food production without harming the environment. Natural farming has the potential to reduce carbon emissions by 35% to 50%.

100 yrs of RSS as seen by global media house: Power, controversy, push for Hindu-first India

By Rajiv Shah On a blistering summer evening in Nagpur, nearly a thousand men in brown trousers, white shirts, and black caps stood in formation as a saffron flag was raised, marking a graduation ceremony for Rashtriya Swayamsevak Sangh (RSS) workers. This vivid scene, described in a recent FT Weekend Magazine article, “A hundred years after it was founded, India's Hindu-nationalist movement is getting closer to its goal of a Hindu-first state,” captures the enduring presence of the RSS, a century-old Hindu-nationalist organization.

Another 'honor' killing in Tamil Nadu: Caste pride has murdered love, again

By Vidya Bhushan Rawat* Once again, Tamil Nadu has witnessed a brutal so-called 'honor' killing. This time, it is Kevin Selvaganesh, a 27-year-old software engineer from the Scheduled Caste community, who has been hacked to death by the family of the girl he loved since childhood. Kevin, a brilliant student employed at Tata Consultancy Services, was in a relationship with Subashini, his schoolmate and girlfriend. The couple, both well-educated and professionally qualified, had plans to marry. Yet, that love story ended in bloodshed — sacrificed at the altar of caste pride.

Why is India’s cheetah project under fire? Study flags ecological, social, species injustices

By Rajiv Shah A recent peer-reviewed study has sharply criticized Project Cheetah—India’s high-profile initiative to reintroduce African cheetahs into the wild—as ethically compromised, scientifically flawed, and socially unjust. Titled “Delineating the Environmental Justice Implications of an Experimental Cheetah Introduction Project in India”, the paper is authored by Yashendu C. Joshi, Stephanie E. Klarmann, and Louise C. de Waal, and was published in Frontiers in Conservation Science.

The myth of population decline: India’s real challenge is density, not fertility

By N.S. Venkataraman* India’s population in 2025 stands at approximately 1.4 billion. In 1950, it was 359 million, rising sharply to 1.05 billion by 2000. The population continues to grow and is projected to reach around 1.7 billion by 2050.

Siang dam project sparks debate over security, development, and displacement in Arunachal

By Aarna Gupta* The proposed Siang Upper Multipurpose Project (SUMP) in Arunachal Pradesh, India, has emerged as a contentious initiative shaped by strategic, environmental, and social concerns. Indian officials, including Union Minister Kiren Rijiju and Arunachal Pradesh Chief Minister Pema Khandu, have voiced strong support for the project. One of the primary motivations is China’s plan to build a 60,000 MW hydropower dam on the Yarlung Tsangpo River (the upper stretch of the Brahmaputra) in Tibet, which Indian authorities see as a threat to water and national security. In response, the 11,000 MW Siang Dam, with its 9 billion cubic meter reservoir, is viewed as a necessary countermeasure to manage water flow and reduce vulnerability.

Shanghai Textbook reassessed: Between revolutionary rhetoric and economic reality

By Harsh Thakor "Maoist Economics and the Revolutionary Road to Communism: The Shanghai Textbook on Socialist Political Economy" (1975) presents a detailed exposition of the Chinese perspective on socialist political economy under Mao . Developed during the Cultural Revolution, it outlines a theoretical framework for the functioning of a socialist alternative to capitalism. The book was formulated under the direction of Zhang Chunqiao, who played a central role in discussions, content planning, and final reviews of the draft.

Trump’s tariff tactics are a geopolitical bully move that may backfire

By Vidya Bhushan Rawat* U.S. President Donald Trump’s recent move to impose high tariffs on Indian goods is yet another example of his aggressive, unilateralist economic policy—an attempt to pressure and punish rather than to negotiate. This is not an isolated action. Trump has shown similar hostility toward other countries aligned with the BRICS bloc—Brazil, Russia, India, China, and South Africa—reflecting his disdain for multipolar global cooperation and his desire to maintain American economic supremacy at all costs.

Search This Blog