In a landmark judgment, the Telangana High Court recently struck down the Telangana Eunuchs Act, 1329 Fasli, terming it "unconstitutional" as it violated the rights of transgender people, reported LiveLaw.
The court termed the Act as being "offensive of both the right to privacy and the right to dignity of transgender persons," and said:
"Such an enactment can no longer continue to find a place in our statute book … [it] was not only arbitrary but had stigmatised entire communities, including the eunuchs, as criminals," as per LiveLaw.
A bench comprising Chief Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy gave this judgment after hearing the PILs filed by transgender rights activist Vyjayanti Vasanta Mogli and two others.
The court also heard two other PILs filed by the activists, seeking to extend the Telangana government's Aasara Pension Scheme to trans people as well as provide reservations to the community in public education and employment.
Speaking to The Quint, Mogli welcomed the judgment, and said: "The [Telangana Eunuchs] Act gave sweeping powers to the police and criminalised our identity. It was being misused for a long time and it had to go."
So, what exactly did the Eunuchs Act say? How was it discriminatory? And why is the HC verdict significant for transgender persons? The Quint explains.
What Does the Telangana Eunuchs Act Say?
Previously known as the Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 Fasli, the Telangana Eunuchs Act was first enacted in 1919.
As per the Act, a "eunuch" included "all persons of the male sex who admit to be impotent or who clearly appear to be impotent on medical inspection."
Before we proceed, we would like to acknowledge that the word "eunuch" – which has been historically used to describe transgender people – is derogatory and offensive in nature. In fact, in April 2014, the Supreme Court recognised the word "transgender" as the politically correct term. In this article, we will be using the word "eunuch" only for the purpose of describing the provisions of the Act.
The Act mandates that the government must maintain a register containing the names and addresses of "all eunuchs residing in the City of Hyderabad," who are "reasonably suspected of kidnapping or emasculating boys, or of committing unnatural offences."
Additionally, these "registered eunuchs" could be arrested without a warrant if they are seen wearing "female dress or ornamented in a street or a public place" and be sentenced to two years in jail.
Some of the other provisions of the Act are also built on the presumption that "eunuchs" are criminals.
"Any registered eunuch who has with him or in his house or under his control a boy of less than sixteen years of age shall be punished with imprisonment for a term which may extend to two years or with fine or with both."
"Any person who emasculates himself or any other person with or without his consent or abets in emasculation shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
Stating that the Act is fundamentally regressive, Mogli told The Quint:
"The provisions of the Act are clearly arbitrary. Any 'male' in 'female' attire is punished without cause, and if found in the company of children, trans people could be arrested without a warrant. What if we are a tuition teacher or a dance teacher? There are many trans people who pursue such careers. Should they be illegally punished too?"
What Did the High Court Say?
The PIL challenging the Telangana Eunuchs Act was filed by Mogli and two other activists, Monalisa and Sayantan Datta, in 2018, and in the same year, an interim stay on the Act was issued.
During the hearing of the case in the Telangana High Court, the state government argued that this law was "purely in the interest of public order" and that transgender people were not discriminated against on the basis of the Act.
But the Telangana HC said that the Act functioned on the assumption that "eunuchs" – as a class – were criminal.
"Once a tribe was declared as a criminal tribe, or in case of eunuch, they were presumed to be criminal ... police had the power of surveillance over them, to arrest them, and to monitor their day-to-day lives," the court said, as per LiveLaw.
The court, therefore, said the "legislation is violative of the human rights of the third gender community besides it is an intrusion into their private sphere as well as an assault on their dignity," Bar and Bench reported.
"It is not only violative of Article 14 but is also clearly violative of Article 21 of the Constitutional of India," it added.
Verdict Significant in More Ways Than One
During the hearing, the high court also directed the central and state governments to provide reservations to transgender people in public education and employment.
"State of Telangana is directed to issue government orders/administrative instructions providing for reservation to persons belonging to the transgender community in matters of admission into educational institutions and recruitment to Government and public services," the judgment said, as per Bar and Bench.
It also ordered the Telangana government to extend the benefits of the Aasara Pension Scheme to transgender people.
The Aasara Pension Scheme is being availed of by a list of communities below poverty line – like toddy tappers and weavers – since 2014. With the HC verdict, transgender persons will now be treated as a separate class, apart from all the other communities benefitting from the scheme.
Speaking to The Quint about the HC order on reservations, Mogli said:
"The responsibility has now been positively placed on the Telangana government to provide the trans community with reservations. But we also encourage and exhort the Telangana government to go beyond the government of Karnataka – which provides horizontal reservations to trans people in employment and public education – and provide such reservations in government schemes as well."
You can read more about transgender people's demand for horizontal reservations here.
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