KARACHI: The Sindh High Court has put the home secretary and the provincial law officer on notice with the direction to place on record measures taken by the provincial government to establish separate barracks in prisons for transgender persons and to fulfil other provisions of the relevant law.

The single-judge bench headed by Justice Salahuddin Panhwar observed that the excuse of the jail authorities regarding lack of capacity in detention facilities was not sufficient when it came to a question of fundamental rights since there were mandatory provisions of separate barracks not only in the Transgender Persons (Protection and Rights) Act 2018 but also in the Sindh Prisons Rules and Correction Services Act 2019.

The bench further said that the failure of the government in discharging its defined obligations was not worth appreciating but this alone could not be an excuse for the jail authorities for not keeping the transgender persons separate from male and female prisoners.

When the bench took up an appeal of a transgender person against the conviction order of the trial court for the hearing, Senior Superintendent of the Central Prison Karachi Hassan Sahito filed a report in compliance with the last order about a separate barrack for transgender people in the prison.

Court says lack of capacity in jails not an excuse to deny transgender people separate facilities

He contended in the report that there was no separate barrack for transgender people in the prison as it was already overpopulated and the sanctioned capacity of the detention facility was 2,400 prisoners whereas 4,633 prisoners were housed there, adding that the admission ratio of the transgender prisoners stood at .001 per cent, thus a separate barrack for them was impracticable.

The jail superintendent further submitted that at the time of admission to prison the appellant /convict in question looked like a transgender, therefore, had been kept in a separate room under the cover of a CCTV camera and nobody could approach the appellant’s room and he as well as his subordinate officers had been regularly visiting the room and the convict had never made any complaint.

The convict in question is being kept separately for the purpose of safety and security in pursuance of Section 38(d) and Section 39(c) of the Sindh Prisons Rules and Correction Services Act 2019, the report concluded.

The bench observed that it was an undeniable position that the appellant was attacked by other prisoners when confined at the Landhi jail which prima facie was the negation of referred rules as well as the failure of the jail in-charge in adhering to the relevant rule.

Be that as it may, the capacity issue is not a sufficient excuse when it came to a question of fundamental rights and the senior superintendent, Central Prison, Karachi, however, appeared to be unaware of the Transgender Persons (Protection of Rights) Act, 2018, it added.

The bench directed all the jail authorities to ensure compliance of such mandatory rule till the government discharged its obligation and jail officials must not come forward with an excuse of capacity issue, rather, they should ensure satisfaction of the spirit of the rule which said “transgender shall be kept separate”.

It also issued notices to the provincial home secretary and the advocate general of Sindh for March 9 with the direction to place on record the initiatives of the government towards discharge of its obligations as per the act in question.

Published in Dawn, March 7th, 2021