Steps must be taken to safeguard the fundamental rights of transgender persons in Telangana
The Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 F, an enactment “for the registration and control of eunuchs”, must be struck down immediately as it violates every principle of natural justice. This move acquires a particular urgency in the light of the recent privacy judgment.
What the Act says
The Eunuchs Act, enacted in the Nizam’s dominions, has been in force since 1919 explicitly to control “eunuchs”, that is, people who were both “males in female dress” and those who had undergone “emasculation”.
Section 1(A) of this Act states, “A eunuch shall for the purpose of this Act include all persons of the male sex who admit to be impotent or who clearly appear impotent on medical inspection.” Section 2 provides for the maintenance of a register by the government that will contain “the names and place of residence of all eunuchs residing in the City of Hyderabad or at any other place… and who are reasonably suspected of kidnapping or emasculating boys, or of committing unnatural offences or abetting the commission of the said offences…” It is reasonable to presume that the definition of unnatural offences comes from Section 377 of the Indian Penal Code.
Section 4 of the Act, “Registered eunuch found in female clothes”, reads: “Every registered eunuch found in female dress or ornamented in a street or a public place or in any other place with the intention of being seen from a street or public place or who dances or plays music or takes part in any public entertainment in a street or a public place may be arrested without warrant and shall be punished with imprisonment for a term which may extend to two years or with fine or both.” Section 5 provides for the punishment of a eunuch with imprisonment if it is found that he “has with him or in his house under his control” a boy who is less than 16 years old. There is no exception made for the possibility that this boy may be a biological or adoptive child of the said person. Section 6 provides that “the District Magistrate may direct that any such boy be delivered to his parents or guardian, if they can be discovered and they are not eunuchs; if they cannot be discovered or they are eunuchs, the Magistrate may make such arrangement as he thinks necessary for the maintenance, education and training of such boy…” Sections 5 and 6 explicitly bar eunuchs from the right to relationship, family, child custody and parental autonomy. Finally, Section 7 penalises consensual and non-consensual emasculation and abetment to emasculation with imprisonment for a term which may extend to seven years.
Constitutional framework
Article 15 of the Constitution lists “sex” as a ground of non-discrimination. However, the constitutional category of “sex” has not been defined as restricted to male and female alone. It may therefore be constructively interpreted to offer full constitutional protection to all persons and citizens of all genders as the case may be. It may be recalled that the 2009 Delhi High Court judgment on the constitutionality of Section 377 (Naz Foundation v. Government Of Nct Of Delhi) applied the United Nations human rights framework to an understanding of sexual orientation and gender identity, setting out three categories of protection: non-discrimination; protection of private rights; and ensuring special general human rights protection to all, regardless of sexual orientation or gender identity. The constitutional reasoning of this decision is immediately relevant to the Eunuchs Act.
The judgment was struck down by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013). The privacy Bench opens the Koushal judgment for detailed re-examination. With reference to the reasoning in Koushal that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted,” the privacy Bench, speaking through Justice D.Y. Chandrachud, observed that this cannot be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21, and “is not a sustainable basis to deny the right to privacy”. Importantly, he observed: “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.”
With regard to the second part of the reasoning in Koushal that Section 377 is a largely unenforced provision, the privacy Bench observed: “Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination… The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment… The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”
With specific reference to the transgender community, the judges referred to NALSA v Union of India (2014): “NALSA indicates the rationale for grounding of a right to privacy in the protection of gender identity within Article 15. The intersection of Article 15 with Article 21 locates a constitutional right to privacy as an expression of individual autonomy, dignity and identity.”
Justice J. Chelameswar affirmed that the “right to privacy consists of three facets i.e. repose, sanctuary and intimate decision” and includes “the freedom of certain groups… to determine their appearance and apparel.” Justice R.F. Nariman observed that of the three aspects that are at the core of the fundamental right to privacy, “the privacy of choice, which protects an individual’s autonomy over fundamental personal choices”, is one.
Safeguard fundamental rights
There is widespread evidence that the existence of the Eunuchs Act has resulted in a pervasive and continuing practice of criminalisation, illegal detention, torture in custody, and extreme coercion, which includes a perennial threat of arrest. It is also a fact that transgender persons are routinely subjected to sexual assault and sexual violence but fear registering FIRs because of the stigmatisation and vulnerability consequent on this draconian legislation, which shapes the attitudes and conduct of law enforcement officers. The Eunuchs Act has a chilling effect on the assertion of the right to privacy, dignity, and freedom by transgender persons.
The Supreme Court has opened up a definitive space in constitutional interpretation that makes the declaration of unconstitutionality of this law by the High Court of Judicature at Hyderabad urgent. We need to take necessary steps to safeguard the fundamental rights of transgender persons in Telangana. As Justice S.K. Kaul said: “The old order changeth yielding place to new.”
Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad
