The Delhi High Court on Wednesday took up a petition seeking recognition of rape against transgender women and children under the new criminal law framework, the Bharatiya Nyaya Sanhita (BNS). The Bench, however, signalled that such recognition may require legislative intervention rather than judicial interpretation.
Background
The public interest litigation was filed by Dr. Chandresh Jain, who appeared in person. His petition asked the Court to expand the definition of "woman" in Section 63 of the BNS which currently defines rape only in terms of male perpetrators and female victims to include transgender women and transgender children.
Jain also urged the Court to strike down Section 18 of the Transgender Persons (Protection of Rights) Act, 2019. That section prescribes punishments for offences against transgender persons, but the penalties range only from six months to two years. Jain argued that these punishments are disproportionately low compared to the harsh penalties for sexual crimes against women under other laws.
'The NALSA judgment of 2014 clearly recognised transgender persons as the third gender. Yet the protections under criminal law remain unequal," Jain submitted.
Court's Observations
A Division Bench led by Chief Justice Devendra Kumar Upadhyaya, with Justice Tushar Rao Gedela, listened carefully but was not convinced that the judiciary could rewrite the law. The judges remarked that criminal law is strictly defined and cannot be expanded by judicial interpretation alone.
The Bench noted,
"This interpretation would perhaps not be possible. That is our prima facie opinion. If that were possible, Section 376 of IPC would have already been interpreted to include transgender women."
The Court further explained that the power to expand the scope of offences and victims lies with Parliament.
"Somebody may think the penalty should be harsher or broader. But such issues are within the legislative realm, not judicial adjudication," the Chief Justice observed during the hearing.
At the same time, the judges acknowledged that the plea raised an important issue about equality and protection.
"We are not saying the petitioner has not raised a legitimate issue," the Bench said, "but the proper forum is the legislature, not the Court."
Decision
Given the complexity of the matter, the Court appointed Senior Advocate N Hariharan as amicus curiae (a neutral advisor to the Court) to assist in the proceedings. The Union Government has been asked to file its response within six weeks.
For now, the Court has stopped short of granting any immediate relief, maintaining that the scope of rape laws for transgender victims can only be settled by Parliament.
Case Title: Dr. Chandresh Jain v. Union of India & Ors