The Delhi High Court on Wednesday sought the Centre’s response in a public interest litigation (PIL) seeking protection of transgender women and children under the rape law. Even as the court sought a response from the government, it, however, orally opined that the court may not be equipped to make an interpretation of the law within the penal framework as it lies in the domain of the lawmakers. The bench of Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela has appointed senior advocate N Hariharan, who specialises in criminal law, as an amicus curiae in the case to assist the court. Chief Justice Upadhyaya, while issuing notice to the Centre, orally remarked, “This interpretation would perhaps not be possible. That is our prima facie opinion. If that were possible, Section 376 (of the Indian Penal Code or IPC) would have been interpreted and included transgender women.the call has to be taken by the legislature, keeping in view the principles of criminal law that no one can be punished for offence which is not defined by rule making authority.” The petitioner, Chandresh Jain, a practising advocate and a human rights activist, in the PIL is seeking that the High Court interpret Section 63 of Bharatiya Nyaya Sanhita (BNS), that is the offence of rape, to also include transgender women and children as victims, instead of its current definition where a man is said to commit rape if he penetrates a ‘woman’, excluding queer individuals such as tranpersons, as well as intersex and non-binary person from its ambit. The petitioner is also seeking that Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, which deals with protections for transgendered persons, to be declared unconstitutional, as the statute fails to provide effective criminal protection to transpersons, and lacks “graded or proportionate punishment for serious offences such as sexual abuse, physical assault, and exploitation.”
