A Delhi court has stressed on the need for separate lock-ups, prisons and other provisions for transgenders, who have been declared as "third gender", saying they have full legal rights and "cannot be shuttled between man and woman depending upon convenience".
The court cited the Supreme Court's recent landmark verdict by which it has declared transgenders/eunuchs as a "third gender" and said it was time for the criminal justice system to effectively recognise them as such and create separate lock-ups, prisons, toilets for them when they are on the wrong side of the law.
It also said that it is time to arrive at a consensus to suitably amend the rules relating to prisons and lock-ups in this regard.
"It, therefore, becomes equally important that when they are on the wrong side of law or commit violation of existing statutory law of the land, they be proceeded against and punished in accordance with law just as any other 'Person' whether a 'Man' or a 'Woman' after ensuring that their human and constitutional rights are in no manner compromised.
"Provisions for creating separate lock-ups/ prisons and making separate provisions for the transgenders/ eunuchs has been necessitated as they have full legal rights and cannot be shuttled between man and woman depending upon convenience and denying any effective legal status to them is violative of human rights," Additional Sessions Judge Kamini Lau said.
The court passed the order in a case in which a man was beaten by several persons, including two eunuchs, when he objected to their nude dance in public in a residential area under the influence of alcohol as they were attracting adverse public attention with large number of men jeering and cheering them in November 2012 in Begumpur in north west Delhi.
When victim Raju Chauhan's pregnant wife Savita came out to save him, several men and eunuchs also beat her up leading to her abortion, it said.
The court, however, sentenced three men--Bunty, Vijay and Vimal--to three years rigorous imprisonment for causing miscarriage of the woman and also imposed a fine of Rs 25,000 each on them which would be given as compensation to Savita.
The court said the only accused before this court were the persons who had beaten Raju and his wife but no investigations were made into the initial objectionable acts of obscenity and nuisance which were criminal per-se.
The court said that violation of law by eunuchs was the root cause of the incident of violence in this case but it was deliberately diverted to the three convicts as the investigating agency failed to proceed against the eunuchs who had committed the offence.
It said despite the apex court having declared eunuchs/ transgender as "Third Sex", in so far as the criminal justice system was concerned it appeared to be finding itself severely "handicapped" on this issue.
"It is observed that the hesitation of the police to act in cases of receipt of complaints in case of violation of law by these eunuchs/ transgenders is primarily on account of the fact that they find themselves incapable of proceeding against them within the existing infrastructure and paraphernalia as has happened in this case," the judge said.
The court, however, added that instances of exploitation of this third gender are often reported and they frequently suffer harassment by police in public places, harassment at home, police entrapment, rape, discriminations, abuse in public places etc. Yet, at the same time, on account of being sidelined, isolated and marginalised, they have also been found on the wrong side of law while indulging into organised beggary, prostitution and extortion.
In its landmark verdict, the apex court on April 14 this year, had granted legal recognition to transgenders or eunuchs as third category of gender and directed the Centre and all states to treat them as socially and educationally backward classes to extend reservation in admission in educational institutions and for public appointments.
Paving the way to bring the transgender in national mainstream, the apex court had directed governments to take steps to remove problems faced by them such as fear, shame, social pressure, depression, and social stigma.