Architectures of impunity and structural erasure: Deconstructing the penal asymmetry and statutory friction governing sexual violence against transgender sex workers in India

ANWESHA GUHA

Architectures of impunity and structural erasure: Deconstructing the penal asymmetry and statutory friction governing sexual violence against transgender sex workers in India

Author(s)	Ms. ANWESHA GUHA
Country	India
Abstract	Purpose of the paper: This study examines systemic jurisprudential, legislative and enforcement conflicts at the confluence of gender identity recognition, substantive criminal law, and the criminalization of informal survival economies in India. It addresses the statutory friction between the Bharatiya Nyaya Sanhita, 2023, the Transgender Persons (Protection of Rights) Act, 2019 and the Immoral Traffic (Prevention) Act, 1956. Its primary aim is to expose how the contemporary post-colonial state constructs architecture of structural impunity that systematically devalues the bodily autonomy of transgender sex workers. The research identifies a key statutory anomaly. The general penal law provides a minimum imprisonment with hard labour for non-consensual sexual penetration against women between ten years and life imprisonment. For transgender people, however, sexual violence is contained in special welfare legislation with a maximum sentence of only two years imprisonment. This paper looks at how this punitive disparity, along with anti-brothel legislation and public order statutes from the colonial period, denies transgender sex workers equal protection under the law. Methodology: The research utilizes a qualitative, doctrinal and critical socio-legal methodology. It blends constitutional interpretation, statutory deconstruction and comparative jurisprudence. The paper analyses the constitutional legitimacy of differentiated sentencing regimes via the prism of the tests of reasonable categorization and apparent arbitrariness under Articles 14, 15 and 21 of the Constitution of India. The doctrinal research explores contrasting judicial precedents of various High Courts and the Supreme Court of India. Moreover, the research employs comparative legal analysis by juxtaposing India’s statutory framework with international legal frameworks. It examines statutory models in the United Kingdom, the United States, and South Africa to evaluate the treatment of gender-neutral sexual violence, consent, and decriminalization of sex work in extraterritorial jurisdictions in the context of international human rights mandates. Tentative Findings: The monograph shows that the statutory provision of a lesser penalty for sexual assault against transgender persons breaches the fundamental guarantee of equal protection before the law. It shows how anti-brothel laws under the Immoral Traffic (Prevention) Act, 1956 actively destroy traditional transgender kinship care networks (Gharanas), pushing sex workers into physical isolation where they become targets for unpunished violence. In this paper, It is proposed a new constitutional paradigm, the Doctrine of Equal Bodily Sovereignty that argues that the legal protections from physical and sexual abuse must be attached to the human body unconditionally, regardless of gender markers or labor categories. Finally, it presents a comprehensive legislative agenda calling for gender-neutralization of general rape legislation, removal of disproportionate punishment ceilings, statutory protection of communal living areas, and complete decriminalization of voluntary sex work of adults.
Keywords	Penal Asymmetry, Bodily Sovereignty, Transgender Sex Workers, Structural Impunity, Survival Economies.
Field	Sociology > Administration / Law / Management
Published In	Volume 8, Issue 4, July-August 2026
Published On	2026-08-18

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Architectures of impunity and structural erasure: Deconstructing the penal asymmetry and statutory friction governing sexual violence against transgender sex workers in India

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