Justice Madan Lokur, former judge of the Supreme Court, releases a report highlighting the plight of transgender persons in prisons

Published : December 02, 2020 17:29 IST

More than six years after the Supreme Court of India granted the third gender status to transgenders, they remain marginalised in society and the most vulnerable group inside prisons.

While delivering the landmark National Legal Services Authority vs Union of India (NALSA) judgment of 2014, the apex court had analysed the question of “gender identity” at length, invoking the various fundamental rights under the Indian Constitution. Despite the legal recognition of the Lesbian, Gay, Bisexual, Transgender, Intersex, etc (LGBTI+) community, religious institutions and civic bodies continue to resist the inclusion of members of the community in society.

On November 27, Justice Madan Lokur, a former Judge of the Supreme Court, released a report titled “Lost Identity: Transgender Persons inside Indian Prisons”, which was prepared by the Commonwealth Human Rights Initiative (CHRI).

Between May 2018 and April 2019, 214 transgenders were incarcerated in different jails of the country. Despite the NALSA judgment recognising non-binary gender identities and upholding their fundamental rights, most prisons do not recognise the third gender. Arijeet Ghosh, Madhurima Dhanuka and Sai Bourothu, the writers of the report, observed that there is no uniform policy on the procedure for placement of transgenders in gendered prisons. The report says that awareness programmes have been conducted among prisoners since 2014, except in Karnataka, that transgenders were not hired for work between January 2014 and 2019 and that none of the prisons had a course/module on awareness and sensitisation of the rights of persons belonging to LGBTI+ in the Prison Training Institute’s curriculum.

“Training and awareness [of prison staff, lawyers, police, and so on on this issue] are very important,” said Justice Madan Lokur. “All institutions dealing with the police, the judiciary and institutions dealing with civil servants ... need to get together to deal with issues facing transgender persons,” he said. Emphasising the need to review these issues with compassion, he said: “A welfare state cannot say that we cannot give certain facilities to some people. Answers to questions about the problems transgender persons face can come only through adequate training, awareness and recruitment.”

Justice S. Muralidhar of the Punjab and Haryana High Court said transgender persons should initiate the process and lead the dialogue in this area. “I do not think that the judiciary has completed its task. We need to look at transgender persons in the criminal justice system as a whole,” he said. He urged the High Courts and the Supreme Court to actively pursue the issue and expand the scope growing out of the apex court judgements. He urged B. Pradhan, Secretary General, National Human Rights Commission, to look at the issue of strip-searching in prisons.

Members of the transgender community say that legal recognition was the first step towards their empowerment and that tougher battle lies ahead. This CHRI report is another step in that direction. It aims to enhance the understanding of these issues among the stakeholders such as prison administrators, judicial officers, lawyers, legal service providers and other non-state actors. The online launch of the report was attended by more than 300 people, including prison and correctional services officials at the State and district levels and members of State human rights commissions, metropolitan magistrates, State and district legal services authorities, researchers and civil society groups.