The Transgender Persons (Protection of Rights) Act, 2019 came into effect in January 2020 in India. This act acknowledges the rights and provisions for the protection of individuals whose gender does not match their gender assigned at birth, including transmen, transwomen, and those with intersex variations. The Act also encompasses those with socio-cultural identities like kinnar and hijra.
Improving Conditions for Transgender Persons in Indian Prisons
The Union Home Ministry recently advised leaders of prisons across States and Union Territories to ensure the privacy and dignity of transgender inmates. As per the National Crime Records Bureau, there were 70 transgender prisoners in Indian jails in 2020. The advisory was issued in accordance with the Transgender Persons (Protection of Rights) Act, 2019.
Infrastructure Changes in Prisons
Steps are being made towards creating separate enclosures, wards, toilets and shower facilities for transmen and transwomen to safeguard their privacy and dignity while in prison.
Upholding Self-Identity
The Act emphasises respect for the self-identity of these individuals during admission procedures, medical examinations, frisking, clothing allocation, police escort requisition, treatment, and care within the prison system.
Acquisition of Transgender Identity Certificate
Prisons are to assist in facilitating the process of acquiring the transgender identity certificate if such a request is made by the individual.
Search Protocol
To uphold the dignity and safety of the individual, searches should be conducted by a person of the preferred gender, a trained medical professional or a paramedic trained in conducting searches.
Admission in Prison
The prison admission register may be revised to include “transgender” as a category, separate from male and female gender. This provision may also extend to the Prison Management System for maintaining electronic records.
Access to Healthcare
Equal rights to healthcare should be ensured for transgender inmates, without discrimination based on their gender identity.
Communication with the Outside World
Transgender persons should be given opportunities to communicate with family members, friends, legal advisors and after-care planning by probation, welfare or rehabilitation officers.
Training of Prison Personnel
Training and sensitising of prison personnel is necessary to develop an understanding of gender identity, human rights, sexual orientation and legal frameworks for transgender persons. Other prisoners must also be made aware of these issues.
Major Initiatives and Legislative Measures
Several significant initiatives and legislative measures have been implemented in support of transgender rights, such as the National Legal Services Authority (NALSA) v. Union of India, 2014, which declared transgender people as a ‘third gender’. In 2018, the Supreme Court decriminalised same-sex relationships under Section 377 of the Indian Penal Code. The Transgender Persons (Protection of Rights) Rules, 2020 were also put into place, alongside the launch of the National Portal for Transgender Persons. As part of the initiative to provide safe shelter, the Ministry of Social Justice and Empowerment is setting up ‘Garima Greh’ shelter homes for transgender persons.
The Prisons Act and its Limitations Regarding Transpersons
The Prisons Act, 1894, currently guiding administration of prisons in India, unfortunately, does not recognise sexual minorities. It separates prisoners into categories of women, young offenders, undertrials, convicts, civil prisoners, detenues, and high-security prisoners. However, the NALSA judgment offers constitutional protection to trans persons and directs states to make policies on their legal and socio-economic rights, including those of trans prisoners.
Despite these steps forward, it is still critical to bring changes in current laws. Current protocols under the Prisons Act follow a gender-binary system, which challenges the validity of the legislation and often leads to unfavorable conditions for transgender people in prisons.
Need for Reform and the Way Forward
The colonial Prisons Act fails to reflect the pluralistic and inclusive society that has evolved over time. This outdated law falls short in terms of realising the rights of sexual minorities. The Commonwealth Human Rights Initiative (CHRI) has started the process of advocating for a more inclusive, gender-fluid approach for the treatment of transgender prisoners and recommends that the Union government consider a ‘model policy’ for the special needs of trans prisoners. This policy should be developed through consultation with members of the trans community, honouring the mandate of the NALSA judgment.
