The process set in motion by the Union Home Ministry towards sweeping ‘reforms’ in the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act right in the middle of the pandemic does not come as a surprise, considering the slew of other changes in legislation undertaken in the recent past, in a non-consultative and arbitrary manner. This led to severe criticism from women activists, queer and trans* activists, civil liberties groups, people’s movements, trade unions, women and transwomen in sex work and organizations which have been struggling to evolve egalitarian laws, premised on the constitutional values of justice and dignity.

The opposition to the proposed opaque reform exercise by an all cis-male commitee was articulated specifically with regard to the impact these changes would have on people belonging to marginalized communities, and they drew attention to several cross-cutting issues. The proposed reforms are set in a context in which changes to the Labour Laws were undertaken; the three anti-farmer acts were brought into being, and the Draft Environment Impact Assessment Notification, 2020 was bulldozed through, all without consultation and prioritizing corporate gain at the expense of people from the working classes, especially from marginalized categories. The reform process is also set in the context of the passing of the Medical Termination of Pregnancy Bill (2020), and the publishing of the Transgender Persons Rules, 2000, in spite of significant protests from the community itself, and of the framework policy that is the New Education Policy, 2020.

It is, as we have frequently noted in these situations, the women and marginalized genders from vulnerable social locations, and people engaged in informal and unrecognized labour who have the most to lose. Trying to anticipate the kind of changes that may be brought in through the reforms leads to considerations of personal laws, and the possibility of another attempt to use ‘reforms’ to target minority (especially Muslim) communities. In the process of streamlining trial processes, strengthening bail bargaining, as well as modifying offences included in the IPC, for instance, it would be essential that the composition of the committee itself brings together women, trans* persons, Dalit, Adivasi, Muslim, NT-DNT persons, and others who represent communities having to deal with the legal system more, and in more discriminatory ways than their relative proportion in the population.

The fight against criminal law reforms undertaken with lack of appropriate consultation and hurriedly, has also pointed out the way criminal law has been used to stifle dissent across the country and to arrest citizens expressing their democratic rights, while violence against women, transgender persons, religious minorities and oppressed communities is neither acknowledged formally nor addressed effectively by law enforcement. Reforms to criminal laws need to even more take this reality into account.

What all these draw attention to is the clear state agenda to take advantage of the time of the pandemic and lockdown, including the possibilities offered by the Disaster Management Act, to prevent all forms of protest and dissent, and bring about legislation that is inimical to marginalized and vulnerable populations. More and more movements and struggles undertaken by marginalized communities have been insisting on the demand ‘Nothing about us, without us’, from sex workers’ movements, to anti-caste, queer and trans movements to movements of persons with disabilities and indigenous people. This is not the case within the committees constituted to bring in legislative changes; nor is it the case when laws translate into the lived experiences of people from different marginalized communities.

It is important to note, as an instance not often discussed, that some time back, the government also proposed to dilute and nullify, through amendments, the penal provisions to the Rights of Persons with Disabilities Act (2016), potentially leading to non-implementation of crucial provisions which are seen to ‘‘impact both domestic and foreign investment’. In translation, the need to bring in capital puts at risk the lives of people who live with disabilities, and in particular women and children, who constitute vulnerable categories by virtue of gender and age. It was only due to a fierce and timely movement of the Persons living with disabilities across India that these retrograde changes were withdrawn by the ‘Social Justice’ Ministry. Following this, the State also wanted to repeal the National Trust Act, offering health benefit schemes for specific disabilities; and later to amend the Rehabilitation Council of India Act (1992), setting up the RCI to regulate and monitor services offered to persons with disabilities, including rehabilitation and education; both in a non-consultative manner.

People who are part of different struggles have protested also because of the failure in implementation of already existing laws, even when these make provisions to ensure access to justice. A stark case in point are the numerous instances of violence, including sexual violence, against Dalit and Adivasi women, for which the police notoriously refuse to file FIRs under the Prevention of Atrocities Act (1989). Instead, the perpetrators of caste-based violence are often shielded by the police, as was the case with the Hathras rape, but also with many others which do not make it into mainstream media for similar reasons of caste-based discrimination. There is at times some initial outrage and support for survivors of sexual violence immediately after the incident. However, even when cases are registered, they take a long time, and require significant resources and a supportive medio-legal judicial process for some ‘eventual justice’, which are often not available.

Cases of sexual violence rarely come to light in the mainstream when the survivor or victim belongs to Dalit and other marginalized social locations and the perpetrator belongs to the dominant castes or locations. When they do, they end up triggering demands for punitive action including death. This is yet another ongoing feminist struggle, making arguments to explain not only that state-sanctioned killing cannot in any context be acceptable, but also that such a punishment is not in fact a deterrent. In fact, it is likely to lead to more violence, and less reported instances of sexual violence, as perpetrators are also often known people. This would then be an addition to the delay or denial of justice to people in positions of marginalization.

More often than not, though, people who belong to marginalized and oppressed groups find themselves on the other side of the justice system, criminalized for varied reasons. Data shows that a disproportionate number of people from Dalit, Adivasi, Muslim and other oppressed communities are lingering in prisons, spending unjustified periods of time deprived of liberty as undertrials without having in effect been found guilty of any crime. This is an effect of vulnerability of their social location, lack of financial resources, awareness of one’s own rights, and lack of social capital, all of which work in favour of dominant communities. It is also part of the project of criminalization of Adivasi and forest-dwelling people whose daily living opposes the kind of ‘development’ envisaged by the State. One must acknowledge also the context of transgender and Vimukta (NT-DNT) communities who are perpetually criminalized, notwithstanding legal charges.

The carceral system itself, through all its processes, subjects people in positions of marginality to caste- and gender-based abuse. Instances of violence, especially sexual violence against women at the hands of those in power abound, from the point of detention and arrest, through to imprisonment. To mention only the latest, the casteist abuse and violence to which the police subjected Nodeep Kaur, is the norm rather than the exception. While the number of women in prisons is smaller than that of men, more than 60% of them are undertrials. They face severe overpopulation, due to lack of infrastructure, and the lack of women personnel means that often men are made responsible for tasks otherwise assigned to women. While women are meant to have access to equal education, work opportunities and skill development training, this rarely takes place, while nutrition and hygiene standards are not maintained and women face violence, including sexual violence which goes unreported and unaddressed.

The situation is even more horrifying for people who identify as transgender, gender non-conforming, or queer. The NALSA (2014) judgement mandated that the State must ensure right to self-determination of gender and placed the responsibility on the central and state authorities to ensure sensitization and equitable access and participation of transgender persons in all institutions, from educational, to medical care, legal systems etc.

As stated previously, the directives of the NALSA judgement have already been violated through the Transgender Persons Act (2019) and Rules, 2020. The Act denies the right to self-identification and does not acknowledge and address discrimination against transgender persons; it does not treat sexual harassment and rape at par with penal provisions under existing legislation. By doing so, it establishes transgender persons as second-class citizens who are not entitled to the basic constitutional safeguards that cisgender women are, in a context in which sexual violence against transgender persons is rampant.

In a socio-political context which criminalizes marginalized identities, what is also necessary is a reminder of the specific forms of violence that transgender persons face when needing to negotiate the carceral system, and one of the areas of struggle has been to articulate these through research by and for the community. This is an essential form of activism, setting a foundation for demands of the state. Guidelines do not exist in most states regarding the processes transgender person have to go through at various stages of arrests and imprisonment. Where they do, they contravene, as in Delhi, the very requirement for self-determination established by NALSA, by subjecting people to dehumanizing medical examinations, as a result of which they are assigned a specific ward, which often does not correspond to their self-identification. Lack of sensitization among police and prison personnel, occupying clear positions of power in relation to people from marginalized groups translates into humiliation, sexual harassment and rape. This is compounded by discrimination and violence, including sexual, faced within the wards themselves, which is neither prevented nor addressed.

In a context of disappointment with changes in legislation without a consultative framework and in spite of vocal protests; in a context of prejudice-ridden state mechanisms which are supposed to ensure social justice, people marginalized on grounds of caste, class, religion, ethnicity, and of gender and sexuality continue to fight. At times, the struggle is not to bring changes in legislation or implementation, but just to prevent changes that will have severe damaging consequences on already oppressed groups.