In an important move towards the safety and protection of transgender persons and their rights, the Telangana High Court has struck down the Telangana Eunuchs Act, 1329 Fasli, a colonial legislation deemed archaic and unconstitutional by members of the community. A bench comprising Chief Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy on July 6 passed an order striking down the law as unconstitutional and violative of human rights, declaring it as ‘ultra vires’ to the Constitution of India. The doctrine of ultra vires (beyond the powers) becomes applicable when any statute or action curbs the fundamental rights of Indian citizens.
Passed in the year 1919, the Telangana Eunuchs Act mandates that a register be maintained by the government with the details (name, place of residence, etc) of "eunuchs" residing in the city of Hyderabad, who are “reasonably suspected of kidnapping or emasculating boys", of “committing unnatural offences", or abetting the same. The Act defined “eunuch” as including “all persons of the male sex who admit to be impotent or who clearly appear to be impotent on medical inspection.”
Section 4 of the Act also allowed the police to arrest transgender persons without a warrant and punish them with imprisonment of up to two years and fine, if they “dance or play music or take part in any public entertainment in a street or public place”, or are “found in female dress or ornamented in a street or a public place or in any other”. The same rule applied if they are found with a boy aged below 16 years of age, under Section 5 of the Act.
The bench of justices, while passing the order, observed that such an Act is an “anathema to our Constitutional philosophy”, adding that the legislation is violative of the human rights of the transgender community. It is an intrusion into their private sphere as well as an assault on their dignity, the bench said. “It is thus offensive of both the right to privacy and the right to dignity of transgender persons. It is not only violative of Article 14 but is also clearly violative of Article 21 of the Constitution of India. Such an enactment can no longer continue to find a place in our statute book. It is accordingly declared as unconstitutional,” the court further ruled.
The Telangana Eunuchs Act, 1329 Fasli or the Telangana Eunuchs Act, 1919 was previously referred to as Andhra Pradesh (Telangana Area) Eunuchs Act, 1329F. After the reorganisation of Andhra Pradesh and Telangana in 2014, the Act was adapted to the state of Telangana.
In its judgement, the bench also directed the state government to extend benefits of the Aasara Pension Scheme (currently provided to old aged persons, widows, weavers, toddy tappers, AIDS patients, and persons with disability) to trans persons. It further ordered that the state government may issue necessary government orders or administrative instructions providing reservation to trans persons in education and employment, till the Telangana Assembly brings a law for reservation for them.
The court also directed the Telangana Transgender Welfare Board to co-opt a Member Secretary and make the body permanent. The Board will be responsible for monitoring the steps taken by the Government of Telangana for the upliftment of the trans community. The members may have a tenure of up to two years.
“It shall be the duty of the said Board to monitor various steps taken by the State Government for implementation of the directions of the Supreme Court in NALSA (supra) as well as the steps taken by the State Government for upliftment of persons belonging to the transgender community. It should also oversee the proper implementation of the Transgender Persons Act and the Transgender Persons Rules,” the judgement said.
It added that while it appreciated the government constituting a State Welfare Board and drawing an action plan, the Board must take “proactive steps” to consider the vulnerability of the members of the community and reach out to them.
The judgement was passed on three public interest litigations (PILs) filed by trans rights activists in the state. In 2018, activist Vyjayanti Vasanta Mogli, along with activists KMV Monalisa and Sayantan Datta, filed a PIL at the Telangana High Court seeking to scrap the archaic law. The PIL was clubbed with two others filed by them in the subsequent years. One of the petitions sought reservation for transgender persons and constitution of a welfare board, while the second was to get relief from the authorities in the form of ration, health facilities etc, during COVID-19.
Back in September 2018, during a hearing of the activists’ petition, the High Court had passed an interim direction staying the Eunuchs Act. “The court suspended the law, stating that no arrests or prosecution can be made by invoking it. It was in a state of comatose ever since, but now we hope it has had its death,” Vyjayanti tells TNM. This law is a pre-constitutional colonial vestige, and the very word ‘eunuch’ is derogatory and dehumanising, she says.
Monalisa, who is another petitioner in the case, adds that even though the Eunuchs Act was not being used by the Telangana government, it was posing a constant threat to the community prompting them to file the PIL.
“The law presupposes criminality without any criminal action. Any sort of criminality is based on one’s action and not identity,” Vyjayanti says, adding that the Act created overarching cultures of impunity and violence that were structurally used to intimidate and threaten trans persons. Referring to Section 5 of the Act, Vyjayanti points out that though not many, there are quite a few trans persons who work in teaching and other such professions who are threatened by this Act. Dance, music, tuition teachers etc are especially vulnerable, she says.
Speaking about their PIL on reservation, Vyjayanti says the second petition was filed with 13 demands, including that of the constitution of a Transgender Welfare Board. “Right now, the court has directed the government to frame the policy on reservations and take necessary action. Now the ball is in the government’s court. What we as a community demand is horizontal reservation in public education and employment, as well as in government schemes,” she says.
Trans activist Akkai Padmashali recalls that there was a similar legislation in Karnataka. The Hyderabad Eunuchs Act was implemented in Karnataka as well until 2011, when the State Assembly repealed it as part of the efforts to remove laws from former princely states. However, one section - Section 36(A) - was added to the Karnataka Police Act, giving the police powers to “regulate eunuchs” in the state. “After activist interventions by community members, the Section was removed in 2016. The Karnataka Assembly then passed the Karnataka Police (Amendment) Bill, 2016 to substitute the word 'eunuchs' with 'persons' under Section 36(A),” Akkai says, adding that until then the law was used to curb their right to mobility.
Be it the Hyderabad Eunuchs Act, Telangana Eunuchs Act, or the Section 36(A) of the Karnataka Police Act, it was used to monitor trans persons in specific ways and punish them without any criminal action, says the activist. “For instance, even to go to the next junction, a trans person had to go to the police station and obtain permission. This was totally in violation of fundamental rights to mobility,” she says, further stating that this was too much power at the hands of police, who used it as a threatening tool.
Akkai points out that these highly unacceptable Acts have their roots in the Criminal Tribes Act, 1871, which was repealed in 1952. In its judgement, the Telangana High Court bench had also noted that the Criminal Tribes Act was a “brutal legislation” passed during the British regime with a “vicious and savage mindset”, deeming the entire community of “hijra persons” as innately criminals.
The court also observed that the Act classified certain tribes and “eunuchs” as criminals under a single classification, proceeding on the assumption that “eunuchs” as a class were criminal. “Such an enactment was not only arbitrary but had stigmatised entire communities including the eunuchs as criminals. Once a tribe was declared as a criminal tribe or in case of eunuch [sic], they were presumed to be criminal and police had the power of surveillance over them, to arrest them and to monitor their day-to-day lives,” the court said.
Sayantan Datta, a queer-trans science journalist who is also a petitioner in the case, says most of the British colonial government laws that criminalised indigenous tribes — including the Criminal Tribes Act — were removed once the Indian Constitution came into place. “But some remained, one of which is the Eunuchs Act. While the word ‘eunuch’ in itself is derogatory, it is also vague. In the gender non-conforming and gender diverse community that we belong to, it is not clear what they mean by ‘eunuch’. It doesn’t capture our complexities,” they say.
Sayantan says the trans community in Telangana had to take it upon themselves to sensitise the people and the police about them. “There were years of activism preceding this [judgement], and the PIL was also part of that activism,” they say, adding that the court’s recommendations for affirmative action would go a long way in helping trans persons of the state secure their rights. “We hope that when reservation is implemented, it would be horizontal and compartmentalised. We also hope the welfare board is accessible to the community, represents grassroots adequately, and has the power to negotiate with the government,” they add.
Meanwhile, senior advocate Jayna Kothari, who was the counsel for the petitioners in the case, points out that in the discourses surrounding LGBTQIA+ rights and laws pertaining to the community, the focus is usually on laws at the national level — such as Section 377 that criminalised same-sex relationships. “However, there are such archaic and harmful local laws in different parts of the country, which are finally being deemed unconstitutional after years of activism by community members,” she says.
(With input from Jahnavi Reddy)