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Persons belonging to the LGBTQI+ community are members of social groups based on their sexual orientation and gender identity (SOGI). In India, despite certain landmark judgments, such as the one recognising transgender persons as third-gender (in the case of NALSA v. Union of India) and the one decriminalising consensual sex between same-sex adults (Navtej Singh Johar v. Union of India ), the levels of historic discrimination perpetuated against members of the community remain the same.
Laws that criminalised the very existence of eunuchs and Hijras, such as Section 36 A of the Karnataka Police Act, 1963 and the Criminal Tribes Act, 1871, have been on the books for a long time. Yet, it would not be wrong to infer that discrimination has now become more apparent in the eyes of the public.
However, the abuse and degrading treatment inflicted upon them in places lacking public scrutiny, such as prisons, is still invisible.
Prisons are places where punishment becomes an economy of suspended human rights. Every accused person has to intentionally suffer from sexual deprivation as a direct consequence of their actions. Without this additional element, the loss of liberty can never function and the objective of incarceration cannot be achieved. Thus, the curtailment of liberty and the power imbalance between the prisoners and the prison authorities results in a high degree of inherent vulnerability in the realisation of the rights of prisoners.
The threshold of this vulnerability becomes exponential when it comes to the rights of sexual minorities belonging to the LGBTQI+ community, for varied reasons. Sexual minorities are not limited to the LGBTQI+ community. The term includes women as well as all other persons who face discrimination based on SOGI and their apparent sex characteristics. This article focuses on the treatment of trans prisoners inside Indian prisons.
The Prisons Act and the case of double marginality
In India, the Prisons Act, 1894, is the central legislation regulating the administration of prisons. The Act majorly differentiates prisoners convicted under civil law from those convicted under criminal law. But how does the Prisons Act protect the rights of sexual minorities? Unfortunately, the Act does not even recognise sexual minorities based on SOGI as a different class of prisoners. It only separates prisoners into the categories of women, young offenders, undertrials, convicts, civil prisoners, detenues and high-security prisoners.
The NALSA judgment, while extending constitutional protection to trans persons under Articles 14, 15, and 21, directs states to make policies on their legal and socio-economic rights. This extends to trans prisoners as well, since prisons and their administration is a state subject. This means that, even though the directions given in the NALSA judgment constitute the law of the land, there is still a requirement to bring forth changes in the present laws.
The Prisons Act, however, allows the prison authorities to follow procedures that are strictly gender-binary. These procedures not only challenge the validity of the legislation but also result in a kind of torture and degrading treatment being inflicted upon trans people inside prisons.
All of this is substantiated by a report titled ‘Lost Identity: Transgender Persons Inside Indian Prisons‘ by the Commonwealth Human Rights Initiative (CHRI). The report is based on data collected through Right to Information (RTI) applications on 214 transgender prisoners admitted in prisons from May 2019 to April 2020.
Intrusive bodily searches
As per the Act, when a prisoner is admitted to the prison, the usual process followed by the prison authorities begins with a bodily search for weapons and prohibited articles. Thereafter, if a prisoner is a criminal prisoner, their health is examined on the orders of a medical expert (Section 24). All such information is then entered into an admission register maintained by the superintendent of the prison (Section 12).
Alongside the superintendent and a medical officer (who may be the superintendent themselves), prison authorities also consist of a medical subordinate, a jailer and such other officers as may be specified by the state government in their specific legislations (Section 6).
The bodily searches are mandatory as per the Act, the rules of which are laid down in the 2016 Model Prison Manual (MPM). According to the MPM, male prisoners are to be searched by male staff and female prisoners by female staff (page 67). It does not say anything about sexual minorities. This could become a weapon of exploitation because the physical search will be based on their apparent sex characteristics.
For instance, a trans prisoner with the ‘appearance’ of a woman may be searched by female staff on the basis of their apparent feminine characteristics, unless there is awareness of their identity. Such an incident has taken place in Karnataka where trans prisoners were examined and segregated based on their genitalia.
This would violate the right to self-determination, which is included within the fundamental right to privacy, because they may not conform to the sex assigned to them at birth. The right to self-determination is specifically recognised in Principle 3 of the Yogyakarta Principles on the international human rights standards of SOGI as an “inalienable” part of personal liberty. This was even referred to by the Supreme Court in paragraph 21 of the NALSA judgment.
No separate cells for trans people
Prisoners are required to be separated by Section 27 of the Prisons Act as well as the MPM. Prisoners convicted under civil law are to be kept separately from criminal prisoners; male and female prisoners are treated as separate categories and prisoners under the age of 21 years old are separated from those above that age. Convicted criminal prisoners are also required to be kept separate from unconvicted criminal prisoners. Moreover, the MPM categorises women, adolescents and high-security prisoners as in need of special treatment to protect them from any kind of abuse. However, no mention of trans prisoners is made.
According to the UN’s Special Rapporteur on Torture, sexual minorities, when detained, are often considered a sub-category of prisoners. This holds especially true for transgender and transsexual prisoners, who are at greater risk of physical and sexual abuse by fellow prisoners and prison guards if they are kept in the same cell as male prisoners.
Keeping trans prisoners with the general population of prisoners exposes them to targeted sexual abuse by their fellow inmates. There are numerous instances of torture that go unreported in Indian prisons. One such instance is that of Kiran, one of five trans persons who have been kept amongst 2,000 male prisoners in Nagpur jail and was raped by her cis-male inmates.
Inadequate medical facilities
In cases where the admission of criminal prisoners is concerned, the Act states that their health must be examined on the general or specific orders of the medical officers. Here too, the Act fails to account for trans prisoners.
Since the SOGI-based prisoners have the right to self-identify, their examination cannot be conducted by the usual medical expert, in order to maintain their dignity and privacy. The presence of an expert who understands the needs of a trans person is necessary. Without such experts, they may be prescribed painkillers when they need urgent surgery and they could be deprived of their rights even further.
However, Chapter VII of the MPM, which deals with the medical needs of the prisoners, only identifies distinct health needs of elderly prisoners and prisoners suffering from certain kinds of disease.
Lack of records on transgender prisoners
Information on a prisoner is contained within three important documents: the history ticket, the court warrant and the admission register. According to the responses received on the RTIs filed by the CHRI, the history ticket contains all descriptive information, such as the prisoners’ identity, medical and economic background, legal status and records of their family members, to name a few.
Along with this, the warrant and the admission register, maintained by the superintendent, have separate columns for recording prisoners’ gender information.
For trans persons, their identity is part of the basic description. It is also necessary to prevent misgendering. However, as the law stands currently, it does not prescribe for maintaining separate records.
Although the same should be maintained, considering the NALSA judgment, there is a lack of specific laws for states to do so. This is a major concern that halts the overall discourse on the treatment of transgender prisoners.
Further, the warrant may contain specific instructions on where to place trans prisoners. This would remain insufficient, however, because the same will not guide the authorities on the additional procedures which would need to be followed for their placement.
Reforms to accommodate the rights of sexual minorities
Due to their membership to their marginalised social group and their status as ‘prisoners’, trans people in prisons face ‘double marginality’. However, the same can be addressed by recognising their right to self-identify, which revolves around the central issue of gender sensitisation and awareness.
The Prisons Act and the MPM need to recognise the right to self-determination; this would allow trans people to avoid the unnecessary exploitation they face because of their identity. This recognition would allow trans prisoners to choose the gender of the staff who administer their bodily searches. However, while self-identification is a plausible solution to the issue, there is no surety that the same will not make them more susceptible to police brutality.
The same approach has been advocated in the CHRI report. However, on the issue of self-identification, the Transgender Persons (Protection of Rights), 2019 should not be considered a standard point of reference because it dilutes the NALSA judgment by introducing the need for a certificate from the district magistrate as proof of self-perceived identity (Section 5).
The Yogyakarta Principles, on this point, state that those sexual minorities who are deprived of liberty by way of detention should have additional protection in terms of policies to protect them against discrimination caused in terms of placement, body or other searches and items to express gender. This is reiterated in Rule 2 of the UN’s Standard Minimum Rules on the Treatment of the Prisoners (also known as the Mandela Rules, 2015).
The Mandela rules do not have any direct application to the LGBTQI+ community. However, they recognise the principle of discrimination based on ‘any other status’.
This approach is equally applicable while choosing the placement of prisons, which should be ‘identity-based’ rather than ‘genitalia-based’. Along with prison cells being based on male-female segregation, there must also be exclusive safe spaces for sexual minorities, similar to the ones announced by the Kerala government for trans persons. The same stands true for access to separate washrooms and bathing spaces.
Further, the discourse on prison reforms for trans persons is impossible without more information on them. As per the NALSA judgment, there must be a separate category for trans prisoners. This would also allow authorities to maintain separate records on them.
According to the Training Manual for Basic Courses for Prison Officers, 2017, which was implemented after the Supreme Court’s order on Inhuman Conditions in 1,328 Prisons (2013), trans persons are included under unspecified special categories of prisoners, along with prisoners with disabilities and mental healthcare needs. A similar categorisation is also present in Section 2(41) of the Delhi Prison Rules, 2018, where trans prisoners, along with women, comprise 2.7 % of the prisoner population, as per the National Prisons Information Portal.
This is again a violation of the NALSA judgment because they constitute a separate legal category and not an “unspecified” category.
The records maintained by the state jail authorities are also collected by the National Crime Records Bureau (NCRB) for the purposes of the Prison Statistic Report. But the NCRB does not maintain separate data on trans prisoners.
The NCRB had promised to maintain the records of transgender prisoners as a separate category from the 2020 report onwards after a petition was filed before a Delhi high court bench of Chief Justice D.N. Patel and Justice Prateek Jalan last year.
At the same time, there is a need for medical experts specialising in SOGI to address the unique needs of trans prisoners, such as access to information on HIV/AIDS, hormonal therapy and gender reassignment treatment.
A trans person who identifies as a gender that is different from the one they were assigned at birth requires hormonal therapy to synchronise their secondary sexual characteristics with their gender identity.
However, as per the limited responses to RTIs received, for instance, from the Karnataka government, no trans person has been recruited as a member of “jail authorities” between 2014 to 2019. However, the Karnataka government does segregate trans persons from other prisoners and maintains separate records for both.
The Prisons Act, under Section 59 (25), recognises the need for the external monitoring of prisons whereby state authorities have mandated the constitution of the Board of Visitors (BOD). This board consists of official and non-official visitors to address the issues of the prisoners.
The list of BOVs as per the Maharashtra Visitors of Prisoners Rule, 1962, includes medical health experts such as the “Director of Public Health”. Almost all lists of BOVs maintained by states are the same.
Experts on SOGI must also be appointed to these BOVs in order to address such issues.
The appointment of non-officials also balances the lack of public scrutiny. This was recommended by the Indian Jail Committee, 1919. In the case of trans persons, the non-officials could be SOGI-based activists and members of non-governmental organisations (NGOs) who would be able to get a better understanding of the problems faced by these prisoners. Official members can be from the National Council of Transgender Persons, established as per the Transgender Persons (Protection of Rights) Act, 2019.
Jails must also have an oversight facility that is dedicated to ensuring the safety and security of sexual minorities and their preventive monitoring. The authority must also be responsible for addressing the specific vulnerabilities associated with their gender identity and sexual orientation. Here again, the intervention of NGOs may prove pertinent.
On the need for preventive monitoring, the same is specifically dedicated to ensuring that violence against sexual minorities is addressed, documented and prevented. To ensure this, a reference can be made to the manual published by the Association for Prevention of Torture, which addresses the measures of effective protection that can be adopted in prisons to protect the LGBTQI+ community.
This document has been acknowledged by the UN Office of the High Commissioner on Human Rights (OHCHR).
It should be noted, however, that India has not ratified the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, which means that it has no direct obligation to fulfil the responsibility stated in the manual unless parliament enacts a law on the same.
The colonial Prisons Act has become obsolete; it fails to be the touchstone of constitutional morality which ushers for a pluralistic and inclusive society. Since constitutional morality is something that has to be cultivated keeping in mind the evolving nature of the law and the rights of the people, the present law falls short of any such progressive realisation of the rights of sexual minorities.
Awareness and documentation are two important tools to address the reforms in reference to sexual minorities, especially trans prisoners. Thus, the CHRI is one step in that process which advocates for a gender-fluid approach for the treatment of transgender prisoners. The CHRI’s recommendations should be considered by the Union government to bring a ‘model policy’ on the special needs of trans prisoners, through a consultative process with the members of the trans community, to honour the mandate of the NALSA judgment.