The Telangana High Court has recently invalidated the Telangana Eunuchs Act, citing its violation of the fundamental rights of transgender individuals and its assault on their dignity.
The Act, which dates back to 1919, mandated the maintenance of a register containing information about eunuchs residing in Hyderabad, specifically targeting those suspected of kidnapping and castrating boys or engaging in or aiding unnatural offenses.
Under the Act, transgender individuals could be arrested without a warrant if found dressed in female attire, adorned with ornaments, or involved in activities such as singing, dancing, or participating in public entertainment on the streets or in public places. The legislation also prescribed a prison term of up to two years for these actions.
Furthermore, if a transgender person was found in the company of a boy under the age of sixteen, they could be arrested without a warrant and face imprisonment for a maximum of two years.
Chief Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy, presiding over the case, determined that this legislation infringed upon the private lives of transgender individuals and was evidently arbitrary.
“This 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. 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 Constitutional of India,” the judgment reads.
The Court explicitly recognized that the Telangana Eunuchs Act operated on the presumption that eunuchs, as a collective, were inherently criminal. Notably, the Act unjustly combined various tribes, which were categorized as criminal tribes, along with eunuchs under a single classification.
The bench firmly declared that there was no room for doubt regarding the Act’s incompatibility with the constitutional principles upheld by India. It was unequivocally affirmed that the Act stood diametrically opposed to the constitutional philosophy of the country.
“This is not only arbitrary and unreasonable but is also manifestly arbitrary in as much as it criminalises the entire community of eunuchs,” the bench stated.
In reaching its decision, the Court carefully examined several landmark judgments of the Supreme Court, including the NALSA case, the KS Puttaswamy case, and the Navtej Singh Johar v. Union of India case. These judgments played a pivotal role in shaping the Court’s reasoning and understanding of the rights and dignity of transgender individuals.
Significantly, the Court went beyond striking down the Telangana Eunuchs Act and took a proactive approach by issuing directives to both the Central and State governments. These directives mandated the implementation of measures to ensure reservation for transgender persons in educational admissions as well as in recruitment for public employment. This step aimed to provide transgender individuals with equal opportunities and promote inclusivity in these spheres.
The Court further directed that transgender persons should be entitled to the benefits of the Aasara Pension Scheme, which was initially introduced by the State of Telangana in 2014.
The legal challenge against the Telangana Eunuchs Act was brought forward through a public interest litigation (PIL). The Court heard this PIL in conjunction with two other related petitions. One of the petitions sought directions from the State to provide reservations for transgender persons in educational institutions and public employment.
The third petition requested that transgender individuals be granted a three-month payment of social security pension under the Aasara Scheme.
The petitioners argued that the Act was outdated and did not align with contemporary life and thinking. They contended that the law was discriminatory as it criminalized the transgender community without any valid basis. Moreover, they asserted that the Act imposed arbitrary restrictions on the freedom of speech and expression of transgender individuals, while also violating their fundamental right to privacy.
The petitioners highlighted that the Act contradicted the Supreme Court’s decision in NALSA v. Union of India, where transgenders were recognized as the third gender.
Contrarily, the State government argued that the Transgender Persons (Protection of Rights) Act enacted by the Central government only covered welfare measures for transgender individuals. The State asserted that specific offenses attributed to transgender persons, such as kidnapping, emasculating boys, or committing unnatural offenses, were not addressed in the central Act, and thus, the challenged Act governed and addressed such offenses.
However, the Court disagreed with the State’s position and deemed the Act unconstitutional.
Furthermore, the Court ordered the inclusion of the Member Secretary of the Telangana State Legal Services Authority as one of the members of the State Welfare Board for transgender persons. The Court emphasized that the Board should be a permanent body, while individual members may have limited tenures.
Additionally, the Court called for the Welfare Board to oversee various measures implemented by the State to uplift the transgender community, including the proper implementation of the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020.
