NCRB doesn’t have transgender prisoners’ data, RTIs count 214 such prisoners

Petition in Delhi High Court against NCRB for not counting transgender inmates

India does not officially know how many transgender people are lodged in the jails in the country while several prisons identify them as a male or female as per their genitalia and force them to stay in male or female cells citing lack of clarity in prison manuals.

RTI responses received by a private watchdog Commonwealth Human Rights Initiative (CHRI) show that there were at least 214 transgender inmates in jails between May 2019 and April 2020 though the National Crime Records Bureau (NCRB) has failed to collect such details in its annual Prison Statistics.

Uttar Pradesh (47) and Telangana (40) had the highest highest number of transgender inmates during this period while Odisha (20), Karnataka and Madhya Pradesh (18 each) were other states with higher number of such prisoners.

However, this number could be much more as only nine states, including Karnataka, maintain a separate data on transgender prisoners with the CHRI’s 'Lost Identity: Transgender Persons Inside Indian Prisons' report saying that the prisons continue to cater to primarily male populations, and fail to acknowledge the vulnerabilities of transgender prisoners. All jails in UP have not provided information on transgender prisoners.

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.

States like Punjab and some jails in Jharkhand and Kerala said in RTI responses that a transgender is segregated on the basis of the gender mentioned in court warrants for judicial custody.

"They were placed in the male/female wards based on their genitalia: In the responses received from Mizoram, Delhi, and some jails in the Uttarakhand and Uttar Pradesh it was informed that the segregation was happening primarily on the basis of the genitalia/birth sex as identified by the medical officer," the report said.

The failure to mention the transgender persons in the NCRB report, while it does it for the Crime in India reports, has also now the reached the Delhi High Court with a law graduate Karan Tripathi filing a petition seeking its inclusion. The petition has claimed that the absence of data on transgender inmates will lead to the community not being able to exercise its rights.

"The recognition of a ‘third gender’ and respecting ‘self-identification’ are mandatory requisites which prison administrations must adhere to...It will also enable documentation of transgender prisoner cases, which are essential to understand impact of criminalisation and incarceration on such prisoners, as well as help understand special needs of transgender prisoners," the CHRI report said.

"Not only prisons, but courts too fail to recognise a ‘third gender’ and the gender of transgender persons continue to be identified as per their genitalia, and documented in the male/female binary categorisation," the CHRI said.

Not a single transgender person is recruited as a jail official across the country between January 2014 and January 2019 while a number of states follow questionable practices in identifying them as male or female by relying on the sex mentioned in court warrants and medical examination.

When it comes to training and sensitising prison staff on the rights of transgender prisoners, only Karnataka held a session for its jail officials.

Besides Karnataka, the CHRI report said that the states that keep data of transgender persons include Andhra Pradesh, Goa, Himachal Pradesh, Meghalaya, Sikkim and Uttarakhand.

Another nine states, including Tamil Nadu and Assam, categorically said they were not recording any such data while in the remaining states and union territories, some jails keep a record while other prisons in the same state keep a blind eye.