Access to Justice Denied: A Case of Double Marginality of Transgender Prisoners in India
By Gursimran Bakshi
Content warning: transphobia, prison system failings
This blog focuses on:
A recent report titled Lost Identity: Transgender Persons Inside Indian Prisons’ (The Report) published by the Commonwealth Human Rights Initiative (CHRI) has identified that the present law on prison administration in India fails to accommodate the special rights and needs of transgender prisoners.
The Prisons Act, 1894, is strictly gender-binary and results in the degrading treatment faced by transgender prisoners. This is a violation of the NALSA v. UOI (NALSA) judgment which identified transgender people as a separate legal category.
Access to justice means fair and equitable treatment to all categories of people in the criminal justice system. But this remains a far-fetched dream for minorities especially the Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) community in India. The LGBTQI+ community are members belonging to a particular social group identified based on their Sexual Orientation and Gender Identity (SOGI) according to the Yogyakarta Principles .
In India, transgender people were recognised as a separate legal category in the NALSA judgment; having the right to self-determination and autonomy as per Principle 3 of Yogyakarta Principles. However, their legal rights in prisons are still not recognised as a separate category thereby restricting the fair and equitable treatment. A recent petition filed before the Delhi High Court highlighted that the National Crime Records Bureau (NCRB) which is responsible for preparing the Prison Statistic Report does not maintain any data on transgender prisoners . The CHRI report is based on the data received under the Right to Information Act, 2006, on 214 transgender prisoners in Indian prisons.
The treatment of transgender people under the Prisons Act 1894
The parent legislation, the Prisons Act, 1894, and the Model Prison Manual(MPM), 2016, are responsible for the overall administration of prisons in India. The 1894 Act has become obsolete because no amendment has been made to include transgender people as separate category of prisoners as per the directions of the court in the NALSA judgment.
An amendment is necessary despite the judgment being the law of the land because prison administration is a state subject under the Indian Constitution and thus, states are required to enact their specific laws. For a prisoner, three documents are important: the court warrant, history ticket, and admission register maintained by the jail authorities. All the three documents are essential to maintain a record of the prisoner. Usually, these documents have separate space to record information on gender identity. However, for a transgender prisoner these documents are a matter of concern because no separate categorisation may lead to misgendering.
It also hinders the overall procedures followed by the jail authorities and results in the violation of the right to self-determination of transgender prisoners. As per Section 24 of the Act and MPM, the usual procedure followed by the jail authorities starts with bodily searches on prisoners for weapons and prohibited articles. The MPM states that the bodily searches are mandatory. It is conducted by male authorities on male prisoners and female jail authorities should be responsible for the same on female prisoners. Neither of the two laws address how bodily searches should be conducted on a transgender prisoner. Because of this, the searches usually are based on apparent sex characteristics which may not conform to their true identity. This happened with a transgender prisoner in Karnataka prison .
Another concern is the lack of identity-based placements or separate exclusive safe spaces for transgender prisoners. The UN’s Special Rapporteur on Torture maintains that sexual minorities, especially transgender prisoners, can be exposed to greater instances of physical and sexual abuse by fellow prisoners and prison guards if they are kept in the same cell as male prisoners .
The law prescribes separation of prisoners based on their gender but for a transgender prisoner, incorrect placement may result in a violation of their privacy and autonomy because they may not conform to the sex assigned to them at birth. Technically, a choice should be given to them to choose the placement according to their identity.
Further, the special medical needs of the transgender prisoners are ineptly addressed. The 1894 Act under Section 24 prescribes that the medical officer must examine the health of a criminal prisoner. But when it comes to a criminal transgender prisoner, the examination cannot be done without respecting their right to self-determination. It means that medical officers specialising in SOGI are required to assist the process so that no abuse and degrading treatment takes place.
The transgender people also have their specific needs such as hormonal therapy to synchronise their apparent sexual characteristics with their gender identity. But rather than accommodating their special needs, they were considered as unspecified-special categories of prisoners alongside with prisoners having disabilities and mental health needs as per the Training Manual of Basic Courses for Prison Officers, 2017 .
The current law requires urgent amendments because the present one fails to meet the expectations of constitutional morality which deems to protect every part of the society. It should start with giving them due recognition as a separate category. Their needs should be accommodated in such a manner that they do not face any kind of discrimination and this is especially important for certain vulnerable class of prisoners as stated in Rule 2 of the Standard Minimum Rules on the Treatment of the Prisoners 2015 .
Lastly, since the rights of transgender prisoners are concerned, the role of non-governmental organisations (NGO) cannot be underestimated. The 1894 Act allows external monitoring of prisoners to maintain the need for public scrutiny with the help of the Board of Visitors which include officials and non-officials. While it has been mandated that officials must include different kinds of medical experts, the list of non-officials must definitely have SOGI-based activists, members of NGO, and even members of the National Council of Transgender Persons. The National Council of Transgender Persons have been constituted under the Transgender Persons (Protection of Rights), 2019, to address the different issues of transgender prisoners . These suggestions will reduce the possibility of abuse or degrading treatment to transgender prisoners in Indian prisons.
The CHRI report is an important document for understanding the different issues related to the rights and needs of transgender prisoners. Currently, not many published works are available on the treatment of transgender prisoners in Indian prisons. This also highlights the lack of awareness and the need of documentation to move forward with the overall discourse on the rights of transgender prisoners.
About the author
Gursimran is a graduate of the National University of Study and Research in Law, India. She is currently working as a content writer with Rethinking Refugees. She frequently writes on the rights of LGBTQI refugees and other minorities.
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