MHA passes order to include transgender category in inmates, treatment and care of transgender inmates in country's prisons

New Delhi, January 24

The Ministry of Home Affairs (MHA) has passed an important order in connection with treatment and care of transgender in the prisons of the country. 

The order, an advisory has been sent to Director Generals of Prisons and Chief Secretaries of the states and union territories. 

The advisory stated that under the Transgender Persons (Protection of Rights) Act 2019 the Centre passed the Transgender Persons (Protection of Rights) Rules 2020 which provides guidelines for the prison authorities to provide guidance, education, health, welfare and social security to the transgender. The rules have been passed to ensure prohibition of any form exploitation in the context of prisons and correctional facilities. 

The order has given guidelines to the prison officers to give the right of identification to the transgender in the prison stating that “A person recognized as a transgender person under the provisions of the said Act shall have the right to self-perceived gender identity”.  

According to the advisory, the prisons department must have proper infrastructure for the community. A separate ward or enclosure must be made inside the prisons separate from male/female wards. However, these separate wards should also not bring isolation or propagate social stigma among the prisoners. There should be adequate provision of right to privacy and dignity in regard to separate toilets and shower facilities. 

The order further stated that the self-identity of the transgender men and women must be protected in regard to admission facility, search, medical examination, lodging, clothing, requisition of police escorts, treatment and care inside the prisons. It importantly mentioned, “The prison department may facilitate the process of acquiring the transgender identity certificate under the provision of the said Act if such a request is made by a person concerned by registering them on the national portal of transgender persons”. 

The order categorically mentioned that in terms of admission in the prisons, the prison admission register may be revised to include ‘transgender’ as a category other than male and female. Similarly, the electronic records maintained in the prisons may also include the said changes. In cases, where the court warrant doesn’t include transgender mentioned as a category, the prison authorities shall take legal advice and apply for change in the gender of the person mentioned. 

The search of transgender person in the prisons may be conducted by the gender they prefer or a trained medical practioner or para medic who have necessary training to conduct the search. The person conducting the search must maintain safety, privacy and dignity of the individual. If the search process requires stripping it must be made in a separate room or partition. ‘The search procedure must be carried out in compliance with security protocols and restriction of the contraband and should not be aimed at determining the gender of the person’, the order read. 

Healthcare, an important aspect of all the prisoners must also include the transgender persons with same facilities without any discrimination in terms of gender identity. If the in house health expertise is not present, the transgender persons, like other inmates, should be referred to outside hospital and doctors for healthcare. 

The aftercare and rehabilitation of the prisoners must necessarily include the measures for the transgender too. Aftercare planning by the rehabilitation officer should affirm and include families of the choice of the transgender and specific health needs of them with regard to their mental health and gender affirmative process over and above the scope of rehabilitation or aftercare. 

Every prisoner has a right to communicate with their kin, lawyers, social services and more under the guidelines laid down for the same. Similarly, the transgender inmates too shall enjoy the same rights to communicate and get help from their in, friends, lawyers for bail, family affairs or other requirements. 

The MHA order specifically also mentioned the training of the prison officials in regards to the transgender. The advisory stated that training modules may be designed in collaboration with Ministry of Social Justice and Empowerment, prison training institutes, state health department, human rights commission, legal services authorities and representatives from transgender communities. 

The order says further The training must be given to the prison authorities to develop an understanding of the gender identity, gender diaspora, human rights, sexual orientation and legal framework of the transgender person. The medical officers should be also trained on standards of care for the transgender. The prisons should also design public and prisoner awareness programmes on the rights of the transgender persons. 

This advisory to the prisons department of all state and UT police is an important measure to ensure protection and welfare of the transgender inmates who have been facing numerous incidents of neglect, care, violation and abuse in the country’s prisons. 

Along with medical negligence, transgender persons routinely face violence- both physical and sexual- inside Indian prisons. So far, the prisons in India have been operating without any policy framework targeted to address specific requirements and vulnerabilities of transgender persons.

The invisibility of transgender persons in Indian prison shows in the lack of data maintained by the prison systems. The National Crime Records Bureau’s Prison Statistics continues to report data of prisoners only within the male-female binary. 

Only 9 out of 34 states and union territories had recorded data on prisoners outside of a male and female binary according to the CHRI report. 

The data obtained by CHRI shows a total of 214 prisoners incarcerated in Indian prisons.

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.

Presently, the country has 137 central jails, 394 district jails, 732 sub jails, 64 open jails, 42 special jails, 20 women jails, 20 Borstal schools and 3 other jails leading to at least 1412 jails.