While judicial progress has been made on the rights of transgender persons, little specific attention has been given to those in detention.
Mumbai/Nagpur/Mangaluru: Six A4 size notebooks bear witness to the 17 months Kiran Gawli spent in Nagpur Central prison. Each day, Kiran would unfailingly steal a few moments to note down the day’s events – of newly forged friendships, anguish, loneliness and sometimes heartbreak. Some days the words would flow like a poetry; on other days, just a few raw, angry lines. The diary – titled Kiran-e-dastan (loosely translates to the memoirs of Kiran) – has words etched on each line and page.
Some pages of the deftly written book, however, are missing – as though someone has angrily ripped them out. The prison baba (as constables are commonly known in the jail lingo) or warden (convicted prisoners), Kiran says, would descend on her cell each morning, and demand to read what she wrote in her personal journal. “Stories of my desolation gave them cheap thrills. They would read it aloud, poking fun at me and my body each time. And before leaving, pages narrating their misdeeds would be torn off"
As one of the only five transgender women lodged among 2,000 male prisoners, Kiran knew the risks involved. “Protesting would mean only one thing – get raped,” Kiran hesitantly shares. Not that they would not attack her otherwise, but being silent at least minimised the physical harm, she adds. She, however, managed to conceal a part of the horror stories among the descriptions of daily mundane affairs of the prison. A line dropped between a dense para – explaining how the jail staff, convicts and undertrial prisoners alike would regularly inflict mental and sexual assaults on her.
Kiran accuses several convicted and undertrial prisoners, and jail staff – all cisgender men – of molesting and raping her, and the other transwomen arrested along with her. During her 17 month-stay at the prison, Kiran says, they must have dropped at least five-six complaint letters in the grievance box, placed under the vigilance of a closed-circuit TV (CCTV) camera and meant to be accessed only by the designated visiting magistrate. Similar complaints were also made to the prison superintendent. However, neither the prison authority nor judiciary came to their rescue. Since March last year, petitioning the court or informing the lawyer became difficult as a lockdown was imposed and jail mulakaats (visits) were abruptly stopped.
“Each time we went with our complaints and demanded to be shifted out to the women’s section, the prison head would tell us there was no such provision available in the prison rule. But under what rule were we being stuffed in the male prison and violated every day?” Kiran asks.
Kiran, along with her guru Uttam Sapan Senapati, was arrested on June 4, 2019 following a gruesome murder in the region. The police accused eleven persons – of whom five, including Kiran and Uttam, were trans women – in the case. Kiran, however, maintains they were being framed. All accused persons were arrested within a few days and booked under Section 302 of the Indian Penal Code for murder.
In 2020, the courts started granting them bail. But as a prime accused, Uttam’s bail plea was rejected multiple times. She continues to be incarcerated in the male barrack. The bail for others came in phases – some by the district court and a few by the Nagpur bench of the Bombay high court under the condition that, on release, they would not enter the Nagpur municipal limit except when required by the court.
Kiran and her confidante Dolly Kamble – also a transwoman and a co-accused in the case – met me at Kiran’s residence in Nagpur when they had come for their scheduled court hearing. Afraid that the local police would trouble them, a family member had to constantly stand vigil outside the house as the two continued to share their stories. Kiran’s family, staunch Ambedkarites (followers of Dr B.R. Ambedkar), have been her biggest support; 29-year-old Dolly, an orphan, lacks any kind of social support.
The bail condition has had a harsh impact on them. For transwomen who survive on traditional systems like badhai and mangti, being uprooted from their immediate ecosystem meant not just a loss of livelihood but also exposure to bodily threats. Attacks and public humiliation have been a common experience, Dolly admits. Only recently, the two found refuge in a gharana in Madhya Pradesh. But until then, they had to depend on friends or engage in sex work for survival. “Most Gharanas would not take us on board simply because we are accused of having murdered another Kinnar (transwoman),” Dolly says. Other co-accused transwomen have been struggling too, they share.
Kiran says this was her first encounter with the criminal justice system in her 40-year existence. “I did not know what to expect. Bollywood depicts police in a peculiarly cruel way. But my stay at both Sakkardara and Bardi police station was rather smooth. We were at least treated like human beings. Reality, however, hit us only on entering the Nagpur central prison five days later (on June 9, 2019),” she recalls.
Kiran had assumed that like any other women arrestees, they too would be taken to the women’s prison. Instead, they were all packed off to the larger section of the Nagpur central prison, exclusively meant for men. The women’s section was within the same premises, but not made available to them. “I was in utter shock. How could they even imagine that a woman could survive unscathed inside the male prison? Why did they not ask me if I preferred being among the women prisoners?” she bitterly asks.
Kiran’s question is not rhetorical. Indian courts have repeatedly held that trans people deserve the government’s recognition on their own terms, without mandatory intervention or discrimination. The Supreme Court of India, in the landmark National Legal Services Authority (NALSA) versus Union of India judgement in 2014, settled the question of an individual’s right to gender self-determination. Ruling that transgender people should be recognised as a third gender and enjoy all fundamental rights, Justice K.S. Radhakrishnan, on behalf of the bench, wrote: “Transgender persons’ right to decide their self-identified gender is also upheld and the centre and state governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.” In the Navtej Singh Johar versus Union of India judgement of 2018, the Supreme Court, embracing sexuality as an integral part of citizenship, observed, “The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions.” Such findings, laying special emphasis on personal autonomy, were further affirmed both by the Supreme Court and the high court in several other rulings.
Kiran’s question is not rhetorical. Indian courts have repeatedly held that trans people deserve the government’s recognition on their own terms, without mandatory intervention or discrimination. The Supreme Court of India, in the landmark National Legal Services Authority (NALSA) versus Union of India judgement in 2014, settled the question of an individual’s right to gender self-determination. Ruling that transgender people should be recognised as a third gender and enjoy all fundamental rights, Justice K.S. Radhakrishnan, on behalf of the bench, wrote: “Transgender persons’ right to decide their self-identified gender is also upheld and the centre and state governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.” In the Navtej Singh Johar versus Union of India judgement of 2018, the Supreme Court, embracing sexuality as an integral part of citizenship, observed, “The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions.” Such findings, laying special emphasis on personal autonomy, were further affirmed both by the Supreme Court and the high court in several other rulings.
The judicial interventions, however, are yet to translate into a substantial progress on the ground. When Kiran was taken to Nagpur prison, she says right at the entrance of the Badi (large) prison gate, the process of violating their bodily integrity had begun. As soon as they had walked in, two male constables had asked them to undress. “We were herded together like sheep. (We were) asked for our names, caste and occupation and then told to strip.” The arrestees had unanimously refused. “There was no way I was going to allow any man to strip me,” Kiran says. Rani Bhosale, a woman prison superintendent, then deputed at the Nagpur central, had come to their rescue. Bhosale asked the women prison guards to take over and carry out the search. “But they all claimed they are “scared” of us,” Kiran recalls. Bhosale had to raise her voice and get the women guards to perform their duty.
They were made to stand in a queue with their legs and hands wide open. The guards made them squat several times and a body cavity search was forced upon them. “That is when I actually understood what it means to submit your body to the state,” says Kiran.
In jail, the transwomen were placed in a “separate ward” assigned only to those suffering from infectious diseases like tuberculosis, leprosy, scabies and HIV. The prisoners here are neglected, and so is the barrack. Kiran says they would be in a constant fear of getting infected.
Once when Uttam fell seriously ill, she was allegedly asked to remove her clothes and show which “part” of the abdomen was exactly hurting. When two others were in urgent need of hormone replacement therapy (HRT), the permission was simply denied. One of them who had undergone a breast augmentation surgery just months before her arrest had developed an infection in her silicone implant. The prison doctor only administered her painkillers without a proper diagnosis.
Contrary to the actual treatment meted out to them, Kiran says, the prison administration believes that it gives them “special attention” by restricting their movement and access. They would be kept confined to a tiny room most of the time and chided if they talked to any male counterparts – all in the name of “security”. But when it came to bathing and daily ablution, they were forced to carry them out in the common space. “We would somehow manage to save ourselves through the day but during the bathing hour, hell would break loose. We went without a bath for several days just to protect ourselves,” Kiran shares. Here, the experience was “inexplicable”, Dolly adds.
Unlike other undertrial prisoners, all arrested transwomen were denied
their right to wear civil clothes and were forced to wear white striped
shirt and white shorts. “Even undergarments were denied to us,” Dolly
says. No transwoman was allowed to participate in the special events
organised occasionally in jail.
Kiran, Dolly and two other transwomen’s ordeal ended with their bail.
But Uttam’s sufferings continue. As bail remains elusive, Uttam has
repeatedly asked to be moved to a women’s prison. She once wrote a long
letter narrating her hardship, and named every individual who had been
ill treating her. The letter, her lawyer Akash Waghmare says, fell in
the hands of the prison officials and was shredded into pieces. The
second letter, a sanitised version that did not attribute individual
responsibilities, was finally handed over to Waghmare in October last
year. In the letter, Uttam makes a desperate appeal to the judiciary to
intervene and put an end to her ill-treatment in jail. “Respected judge,
is there no constitutional provision to safeguard transgender women’s
rights in prison? Are we not Indian citizens? Are we placed among male
prisoners only to satiate the lust of prison officials and other
prisoners?” she asks in her letter, before giving details of the sexual
violence that she and other transwomen have suffered in the past year
and a half.
his letter, Waghmare says, was written under tremendous risk to
Uttam’s life. “She doesn’t mention names but if an inquiry were to be
set up, it would be obvious that both prison officials and her
co-prisoners have been exploiting her,” Waghmare says. He shares that as
soon as the letter reached him, he had rushed to the court hoping for
urgent judicial intervention. “The court, however, is yet to act upon
it.” he says.
Unequal justice and fractured legal aid
Kiran and her friends were rather fortunate to be represented by a lawyer, and an efficient one at that. While dealing with assaults and harassment in jail, transgender persons are also faced with poor legal representation. It is very common for transgender persons to languish for years in prison before any sort of legal help is made available to them.
Article 39 A of the Indian constitution provides for free legal aid to the poor and weaker sections of the society; Article 14 and 22 (1) make it obligatory for the state to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all. But barring Delhi, all other 28 Indian states and seven union territories have failed to recognise the community’s need for legal aid. According to the data made available on the National Legal Services Authority’s website, Delhi defines three separate categories for legal aid. For the transgender community and senior citizens, the income ceiling limit is set at Rs 2 lakh or approximately $2,700; for the rest, the limit is set at Rs 1 lakh.
For a 32-year-old transwoman, Renuka*, languishing in Thane central prison for pre-trial male detainees since November 2019, her constitutional right to be legally represented was far from available. She was booked under the Protection of Children from Sexual Offences (POCSO) Act after one of her chelas (disciples), a 17-year-old transgirl, fell in love with an adult, cisgender man. Since POCSO criminalises all sexual behaviour for individuals below the age of 18, a child right’s organisation was compelled to report it to the police. Eventually, Renuka and the minor’s beau were both arrested. Despite not finding any evidence against Renuka, and just by virtue of being present when the minor and her partner had indulged in a sexual act, she was arrested too. The minor too refused to depose against the two arrested.
While the man managed to hire himself a lawyer and was eventually released on bail within a few months of arrest, Renuka continues to languish in jail. Her family lives a hand-to-mouth existence and the national lockdown last March has further worsened their situation. They had asked the state for legal aid and even approached a few NGOs to intervene, but got no help.
In the prison, her mother shares, Renuka has been kept confined in a separate barrack and finds company only when another transgender person is arrested and brought to jail. Besides the two times that her family met her before the lockdown, Renuka has not had any visitors in the past 14 months. Court productions too are conducted only through video conferencing. “Most times, she would be left alone, confined to a small, dingy cell. It was particularly concerning to have her placed in a solitary confinement when her father passed away in June. She would repeatedly tell us she was lonely and in pain and was fighting extreme thoughts,” her mother says.
Renuka is HIV positive and in need of a special diet and daily dose of medicines. Her mother claims that each time Renuka calls home, she complains of bad quality food and the prison administration’s constant refusal to take her to the hospital when sick. “Her CD4 count was already too low. We are unsure if she has been even receiving regular antiretroviral therapy (ART) in prison,” her younger brother shares.
During the course of gathering information for this report, The Wire was able to find a lawyer to take up Renuka’s case pro bono. Her bail application was finally filed 14 months after her arrest. The arguments are awaited.
“Jail is the place where you are acutely made aware of your transness”
Experiences of violations are not restricted to only male prisons. Several gender nonconforming persons who were pushed into prisons assigned for women encountered acute violations and gender dysphoria.
In July last year, 31-year-old Tanmay Nivedita, a transman and social activist working with the Jan Jagran Shakti Sangathan, a trade union of unorganised sector workers in Bihar, ended up in prison in a bizarre case. He, along with his co-worker Kalyani had accompanied Khushi*, a 22-year-old gang-rape survivor, to a magistrate in Araria district to get her statement recorded. Khushi, uncomfortable with the magistrate’s approach, refused to sign her statement and insisted that the social workers be allowed to stay by her side through the process. The magistrate felt challenged, accused the three of being in contempt of court and sent them to jail.
Illustration: Pariplab Chakraborty
Khushi had approached the magistrate with great hope, expecting help and justice. But in a matter of five minutes, the court had turned her and her two supporters into criminals. Khushi spent a week in jail; the other two were released only after 25 days. All three were lodged at the women’s section of the Dalsinghsarai quarantine prison in Samastipur district, 250 kilometres away from Araria.
Recalling his time in jail, Tanmay says every moment spent in prison exposed the sheer incompetence and insensitivity of the system. They were first illegally detained at a local police station for over a day and produced before another magistrate. Since it was Sunday and the state was under a lockdown owing to COVID-19, the magistrate, standing at the window of his residence on the first floor, ordered for their judicial custody. “A man, veiled behind window curtains and iron grills, declared we should be sent to jail. We were held up on the ground floor, we could barely hear his voice,” Tanmay says.
While all three were stumped by the sudden turn of events, Tanmay particularly was anxious of his time in prison. Here, at the entry, he says during the initial frisking “every orifice, every crevice imaginable was touched and grabbed”. Tanmay says prison is a space where one is made acutely aware of their “transness”. His insistence on getting frisked in private was looked at as tantrum. “I was constantly told, ‘Hum sab mahilaaye hi hai. Isme kya badi baat hai (I was constantly told that we are all women, what is a big deal in this)’.”
“I had to constantly remind them that hum sab mahilaaye nahi hai. Hume yahaan par sirf bheja gaya hai (I had to constantly remind them that I am not a woman and that I had only been sent to a women’s section).” Soon after he asserted his gender identity, the prison guard told him “another man like him was in the jail”.
Tanmay, who grew up in Kerala and has spent over five years in Bihar, was yet to meet another transman in the state. “And of all places, I had to find them in jail,” he says, breaking into laughter. Another transman, a 19-year-old resident of Muzaffarpur district accused of being in a relationship with a minor, had been in jail for over a month already. “We had in fact been trying to find a way to contact them and intervene legally. And here I was, a month later, in the same jail, getting a direct mulaqat (visit).”
At the prison, Tanmay says, it was common to be misgendered, asked curious questions about his identity and even being non-consensually touched and felt up. “Every new guard entering the jail for the first time would want to know my gender. It did not involve physical touching maybe, but it still was all about the physical.” While the violative gaze followed, Tanmay also forged some memorable solidarities in jail. Khushi, he says, was his biggest advocate. “I had turned up before a magistrate to offer her my support but here she was supporting and defending me in jail.” Similarly, other women in the jail had started defending him and correcting everyone, including jail staff, each time they misgendered him. “It was heart-warming to see how women were readily risking their own safety to protect my bodily integrity.”
Illustration: Pariplab Chakraborty
Tanmay says his upper-caste location and English education placed him in a relatively safer zone. This, perhaps, wasn’t the case for several other transgender persons, belonging to marginalised communities, who are were regularly coming in contact with the Indian criminal justice system.
The National Crime Records Bureau, the only government body that maintains consolidated prison statistics, reveals that Indian prisons are overpopulated by Dalits, Adivasis and Other Backward Classes (OBCs) across religions. Among the transgender communities too, an overwhelmingly large number of those in detention are among Dalit, Adivasi and OBC caste identities.
Disha Wadekar, a Delhi-based lawyer and a vocal critic of the Indian caste system, feels the state’s response towards the transgender community is rooted in the regressive caste system. She traces the ill-treatment to the colonial era, when under the then Criminal Tribes Act 1871, along with several nomadic communities, the transgender community too was criminalised. The law, although repealed, continues to criminalise the communities. She argues, “The brahminical state has for long used the modern criminal justice as an effective tool to tackle “impure individuals” who it considers unfit in its strict notion of “pure upper caste cisgender male body”.”
“The notion of purity is determined not just by the individual’s gender but also by their caste. In this background, it should not be surprising to find the most marginalised among the transgender communties languishing in jail,” she adds.
States’ responses
The Indian judiciary has from time to time dealt with concerns of prisoners’ rights. But it is done in a more generic sense, with very little attention given to the specific concerns of the LGBTQI+ communities, more specifically the transgender people in detention.
Despite opposition from trans rights activists, the Indian parliament enacted the Transgender Persons (Protection of Rights) Act in November 2019. The Act, in a clear violation of the court rulings and constitutional rights, mandates for legal gender recognition and requires an individual to apply for a “transgender certificate” from the district magistrate where they live. In this backdrop, a transgender person who enters prison without a magisterial certificate is at the mercy of prison authorities and doctors to “recognise” and “certify” them on the basis of their genitals.
In 2018, while hearing the case of inhuman conditions of India’s 1382 prisons, the Supreme Court had set up a committee on prisons reforms to examine the various problems plaguing prisons. The committee is headed by Justice Amitava Roy, a former Supreme Court judge and IG, Bureau of Police Research and Development, and the DG (Prisons), Tihar Jail are its other members. The committee, since its commencement, has submitted two detailed reports addressing a wide range of issues, from overcrowding to lack of legal advice to convicts to issues of remission and parole. The concerns of the transgender community, however, have been completely left out.
Illustration: Pariplab Chakraborty
Since 1995, the NCRB has been publishing annual prison statistics every year. The data, however, is collected from a narrow male-female binary, excluding the transgender community from the data. Only recently, the central government acknowledged the limitation of this data and in response to a petition filed before the Delhi high court informed the court that transgender persons will now be included as a separate gender in the NCRB’s prison statistics report. But to add this data in the report, the data should first be maintained in the local police stations and the state level.
A detailed report, titled ‘Lost Identity: Transgender persons inside Indian prisons’ was recently published by a non-governmental organisation, Commonwealth Human Rights Initiative (CHRI), on the basis of data gathered through multiple applications filed under the Right to Information (RTI) Act. The study has found that there is no uniformity in the method adopted to record the data of transgender persons in prisons. Among the states and union territories that responded to the organisation’s queries, only nine of them – Andhra Pradesh, Goa, Himachal Pradesh, Karnataka, Meghalaya, Sikkim, Uttarakhand, Dadra and Nagar Haveli and Puducherry – have stated that the data of transgender inmates was being recorded separately apart from male and female. Additionally, in some states like Gujarat, Jharkhand, Kerala, Maharashtra, Delhi, Rajasthan, Tripura, Uttar Pradesh and West Bengal, which made some efforts to record the data separately, there existed no uniformity in the process in different jails within the state itself.
Though incomplete, the data gathered shows that at least 214 transgender persons were incarcerated across different prisons between May 2018 and April 2019. Among them, Uttar Pradesh and Telangana reported the highest number, with 47 and 40 transgender prisoners respectively.
Sai Bourothu, a project officer with CHRI and a part of the research team, points to the danger of making this data a basis for further government and academic deliberations. “Our research clearly points to the problem in gathering this data. To begin with, very few states even maintain this data. That too, is done in a haphazard manner, disregarding an individual’s right to self-determination,” Bourothu says.
Indian lawmakers have shown no regard to international standards or best practices – including those of multiple United Nations agencies, or the Yogyakarta Principles and the Yogyakarta Principles plus 10 that specifically focus on concerns of human rights violations targeted towards persons because of their actual or perceived sexual orientation or gender identity.
Illustration: Pariplab Chakraborty
Some states like Kerala have decided to set up separate blocks for transgender persons in new prisons. While a separate prison could minimise the scope for sexual and other forms of violence on the community, it also would take away their right to choose. Bourothu feels even along with a separate prison, it should ultimately be left to the arrested transgender person to determine their gender identity and choose whether or not they would like to be separated from the other prison population. She also feels the issue of segregation is not an easy one to address. For instance, particularly in the feminist and women’s movement, whenever the issue of gendered segregation comes up, several in the movement have advocated for segregated spaces as a measure for ensuring safety. “Within that framework, among others, the transgender community too is looked at as a threat… as someone to be protected from,” Bourothu adds. The conversations around the trans community in the penal system is still very new and Bourothu says there are many concerns yet to be resolved.
In the past years, some states like West Bengal, Karnataka, Kerala and Delhi have shown a willingness to come up with policy but have not been entirely open to community consultations. In the backdrop of COVID-19, the National Human Rights Commission (NHRC) had issued detailed guidelines for protection of the rights of the LGBTQI+ communities in detention. The order specifically urges states to ensure that there is no discrimination or abuse of the transgender and intersex persons in prisons. It also asks for the states to ensure equal access to health services in jail. The order was passed last October and just a few states like Karnataka have issued circulars across its different prisons.
The Academy of Prisons and Correctional Administration in Vellore, in collaboration with the National Institute of Social Defence (NISD), too had recently carried out detailed consultations to introduce structural changes in prisons. Beluah Emmanuel, professor and a senior faculty at the academy, acknowledges that the community has been long neglected and no state prisons administration has a standard operating procedure to follow while handling transgender persons in detention. “We have training modules to be followed in different situations and concerns in jail. But the (transgender) community have remained deprived of these deliberations. We are slowly finding ways to come up with a module to educate and sensitise the prison staff about the communities’ rights and requirements,” Emmanuel said.
But until then, several Kirans and Uttams will continue to face the crude brutalities of the prison system, without redressal.
*Some names have been changed for anonymity.
SOURCE ; THE WIRE
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