'Transgender Prisoners Face Gender Discrimination': PIL In Patna High Court Seeks Separate Lock Ups, State To File Response

The public interest litigation has been filed by a non-governmental organisation, namely Legal Aid Work (LAW) Foundation.

A division bench of Chief Justice Sanjay Karol and Justice Mohit Kumar Shah said,

"We find that Mr. Ajay Kumar Rastogi, learned Additional Advocate General No. 10 is connected through digital mode. As such, we request him to appear in the matter and file response within a period of two weeks from today. Rejoinder thereto, if any, be filed within a period of one week thereafter."

The plea prayed for direction commanding the Respondent Authorities to create separate wards and cells for the Transgender Persons arrested under various offences and languishing in all the Central Prisons, District Prisons and Sub-Jails situated in the state of Bihar.

The petitioner also sought directions to the Respondent Authorities to ensure segregation of transgender inmates separately from male inmates or from female inmates by either confining them in separate cells, isolation wards or hospitals and lock ups in judicial as well as in police custody. The aforesaid direction was sought to ensure that convicted and under-trial transgender prisoners can be protected from the inflict mental and sexual harassment.

The plea states,

"That only ten states, including Karnataka Andhra Pradesh, Telangana, Gujarat, Maharashtra and Rajasthan, keep transgender inmates separately from male and female inmates. Some jails in Tamil Nadu and Uttar Pradesh also do the same while some other states do the segregation by either confining them in separate cells, isolation wards or inside hospitals."

It also added,

"In Odisha, the state government has decided to set up a dedicated ward for inmates belonging to the transgender community at Jharpada special jail in the capital city. In the second phase, such facilities will be extended to other circle, district and special jails in the state. In Kerala, the State government has decided to recognize transgender as a third gender other than male and female and put a step forward towards set up separate blocks for transgender prison inmates."

Relying on certain case studies on transgender prisoners, the plea further states,

"That the petitioner researched about it and found various issues of transgender prisoners who faced mental, physical and sexual assault, discrimination during the police custody and judicial custody. The most common problem which is faced by the most of transgender prisoners is that discrimination of the basis of gender. As there is no separate prison and lock up is available for them, so that they are forcibly put in the male or female prison."

In addition to this, reliance was placed by the petitioner on the report of Commonwealth Human Rights Initiative (CHRI) titled 'Lost Identity: Transgender Persons in Indian Prisons'. According to the plea, the report analyses the rights and treatment of the LGBTI+ community, confined in Indian prisons, especially transgender prisoners. It highlights the issues faced by transgender prisoners and provides pertinent information on compliance within prisons, added the plea.

The plea further added that according to this report, most of the states of India do not maintain the separate register for the prisoners belonging to transgender community. It was also stated in the plea that in between May 2018 and April 2019, a total of 214 trans gender persons are recorded to be imprisoned in different prisons throughout the country and no transgender persons were recruited by the prison department in any of the States or Union Territories between 1st January 2014 to 1st January 2019.

The matter is next listed on 08.04.2022.

The counsels for the petitioners include Mr. Vishal Kumar Singh, Mr. Anupam Prabhat Shrivastava, Ms. Shalini and Ms. Akanksha Malviya. AAG Mr. Ajay Kumar Rastogi appeared for the respondent-state.

Case Title: LAW Foundation v. The State of Bihar & Ors.

Citation : 2022 LiveLaw (Pat) 6