Transgressing Boundaries: Decolonising Gender and Sexuality in India’s Criminal Justice System in the Context of Transgender Rights and Sexual Violence

Abstract

The aim of this paper is to examine the intersectionality of gender and sexuality in India’s criminal justice system, focussing on the impact the current laws against sexual assault have on the experiences of transgender persons. The colonial-era Indian Penal Code (‘IPC’) from 1860 has been replaced by the Bharatiya Nyaya Sanhita (‘BNS’) which came into effect on 1 July 2024. The former legal framework introduced a paternalistic approach to Governance which emphasised the need to “civilise” and “protect” Indian people, perpetuating harmful stereotypes against transgender and LGBTQ+ individuals. This paper investigates the enduring impact of colonialism on gendered violence in India, revealing that the historical legacy of colonialism continues to influence the legal framework for addressing crime and informs the criminal code’s responses to gender violence. This paper contends that a decolonial approach to gender justice which can be achieved through decolonising intersubjectivity is essential to address the pervasive, ongoing systemic injustices perpetuated against the community from centuries of colonialism.