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Delhi HC defers plea seeking direction to NCRB, to recognise transgenders as third gender in annual report on prison statistics

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The Delhi High Court on Tuesday deferred hearing a plea seeking a direction to the National Crime Records Bureau (NCRB) to recognise and classify transgenders as a separate third gender in their Annual Publication of Prison Statistics India. The petition will be heard on December 7.

During the hearing, the bench headed by Chief Justice DN Patel and Justice Prateek Jalan said the petitioner’s grievance is simple, that in prison reports that you release, you’re not taking account of transgenders distinctly.

Justice Jalan asked: “We only want to know if the committee has come to a finding.” Chief Justice Patel said, “We are not issuing notice, just take instruction if the decision is pending on not. Take instructions. The court would hear the matter next on December 7.”

The petition stems from the landmark judgment of the Supreme Court in the case of National Legal Services Authority V Union of India, AIR 2014 SC 1863 had unequivocally given legal recognition to the transgenders, in addition to declaring their right to self-determination of gender. The Apex Court had further held that recognition of one’s gender identity lies at the heart of the fundamental right to dignity, and the self-identified gender can be either male or female or third gender.

The petition has been filed by Advocate Yash Mishra, Advocate Akhil Hasija and Advocate Manyaa Chandok of Alliance Law Group. The petitioners claimed that even after 6 years since the judgment of Apex Court, the respondents failed to reasonably classify transgenders as a separate third gender in their annual publication of the prison statistics India report.

The NCRB, acting under the aegis of Ministry of Home Affairs vide resolution dated 11/03/1986, has failed to classify transgenders as a separate class and till date only two genders appear in the Prison Statistics India Report published by NCRB i.e. Male and Female, to complete exclusion of the third gender, avers the plea.

The petitioner asserts, “It is interesting to point out herein that NCRB in its other annual publications like Crimes in India 2018 and Accidental Deaths and Suicide in India 2018, has recognised the transgenders as a third gender, and compiled statistics regarding the crimes committed against the transgenders. However, in complete violation of Article 14 of the Constitution of India, NCRB has arbitrarily and unreasonably abstained from publishing separate data on the third gender in the sex-wise classification of Prison Statistics in India Since 2014.”

“The absence of proper statistics on the number of transgender prisoners in India, raises grave concerns over not only on the treatment of such prisoners, but also on the process of gender determination while collecting these prison statistics. It is not uncommon to learn about incidents of atrocities in jails with transgenders, and without the transparency/recognition of transgenders in the Prison Statistics India, these atrocities are only likely to increase exponentially,” avers the plea.

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“It is therefore imperative that the Prison Statistics of India explicitly categorise the third gender/ transgenders as a separate gender, besides the male and female genders in the said statistics to ensure the equality and protection Under Article 14, 15, 19 and 21 of the Constitution of India and prevent any harassment in prisons and in jails, by police of other jail staff/ inmates, resulting from such non-recognition,” said the plea.  

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