9 July 2023 12:00 PM GMT
The Telangana High Court recently struck down the Telangana Eunuchs Act, 1329 Fasli, as unconstitutional and ultra vires the Constitution of India, observing that the legislation is violative of the human rights of the third gender community. Observing that the statute is “an intrusion into private sphere of transgender persons as well as an assault on their dignity”, a division bench...
The Telangana High Court recently struck down the Telangana Eunuchs Act, 1329 Fasli, as unconstitutional and ultra vires the Constitution of India, observing that the legislation is violative of the human rights of the third gender community.
Observing that the statute is “an intrusion into private sphere of transgender persons as well as an assault on their dignity”, a division bench of Chief Justice Ujjal Bhuyan and Justice C.V Bhaskar Reddy 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 Constitutional of India. Such an enactment can no longer continue to find a place in our statute book.”
The court said that the legislation proceeded on the assumption that eunuchs as a class were criminal. It further noted that the statute had grouped together certain tribes declared as criminal tribes and eunuchs under a single classification.
“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, 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,” said the court.
Telangana Eunuchs Act, 1329
Telangana Eunuchs Act, 1329 Fasli previously referred to as Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 Fasli was first enacted in 1919. The Act mandated maintenance of a register of "eunuchs" residing in the city of Hyderabad who were suspected of "kidnapping or emasculating boys" or of committing "unnatural offences" or abetting the same. The Act permitted arrest of transgender persons without a warrant and punished with imprisonment, "if found in female clothing or ornamented or singing, dancing or participating in public entertainment in a street or a public place or where a transgender person is found in the company of a boy below the age of sixteen years."
It was argued the Act is an outdated legislation and a complete anachronism with modern day life and thinking. The State argued the Act in the interest of public order and there is no discrimination shown against the transgender persons in it.
The bench directed the State to issue government orders or administrative instructions providing for reservation to transgender persons in matters of admission into educational institutions and recruitment to public employment.
It also directed that the benefits of Aasara Pension Scheme, which was introduced by the State of Telangana in 2014, shall be extended to the transgender persons as a class.
The bench issued a slew of directions in three public interest litigations filed in 2018 and 2020.
One of the pleas challenged the constitutionality of the Telangana Eunuchs Act, 1329 Fasli. Another PIL sought direction upon the State to provide reservation to transgender persons in admissions in educational institutions and public employment. The third plea sought that the transgender persons be provided payment of three months social security pension under the Aasara Scheme.
Issuing a slew of directions, the court directed the State Welfare Board for transgender persons to co-opt the Member Secretary of Telangana State Legal Services Authority as one of its members. “It shall be a permanent body though individual members may have a limited tenure,” the bench added.
It further ordered that the State Welfare Board for transgender persons shall monitor various steps taken by the State for upliftment of the transgender community, including proper and effective implementation of Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020.
Disposing of the PILs, the court said that even though it appreciates constitution of State Welfare Board and drawing up of action plan for implementation of various welfare activities for transgenders for 2022-23, what is required is that the Board should take “pro-active steps” for betterment of transgender population and to ensure implementation not only of the action plan but also the provisions of the Transgender Persons Act and its Rules.
“There are many transgender persons in the society and to expect all of them to approach the district magistrate or the revenue divisional officer for a certificate of identity would be wholly unrealistic. In situation such as this, legal services authorities certainly have a role to play. Instead of asking the transgender persons to approach the authorities for certificate of identity or for various other welfare measures, proactive steps should be taken to reach out to the members of the transgender community considering their vulnerability,” the court said.
It added that till a proper legislation is brought in place, the State Government as well as the Central Government may issue administrative instructions providing for reservation to persons belonging to the transgender community in public employment as well as educational institutions.
“This would go a long way in bringing the transgender community into the mainstream fold,” the court observed.
With respect to the pension scheme, the bench said that when widows, disabled persons, beedi workers, single woman, HIV persons etc., are entitled to the benefit under the Aasara Pension Scheme as a class, it fails to understand as to why and how transgender persons can be excluded from such benefits as a class.
"Transgender community is one of the most deprived, neglected and discriminated against communities in the State and in the country. They have been held to be belonging to socially and economically backward class. They fulfil eligibility requirement under the Aasara Pension Scheme. We are, therefore, of the view that benefit of G.O.Ms.No.17 dated 05.11.2014 as amended from time to time should be made available to the members belonging to the transgender community," the bench ruled.
Case Title: V. Vasanta Mogli vs. State of Telangana & Ors.
Citation: 2023 LiveLaw (Tel) 24
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