Plea To Declare Telangana Eunuchs Act Unconstitutional As It Violates The Fundamental Rights Of Transgenders: AP HC Issues Notice To State
The Andhra Pradesh High Court on Tuesday issued notice to the State of Telangana on a writ petition challenging the Telangana Eunuchs Act of 1919 as being ultra vires to Articles 14, 15, 19 and 21 of the Constitution of India.
The petition, instituted by three transgender activists associated with the Centre for Law & Policy Research, filed through advocates Jayna Kothari and Disha Chaudhari, avers that the Telangana Eunuchs Act is an obstacle to the full realization of the rights of transgender persons and the meaningful recognition of their right to live with dignity, personal autonomy and self-determination as upheld by the Supreme Court in its recent decisions in NALSA v Union of India and in the landmark right to privacy judgment in Justice KS Puttaswamy v Union of India.
“The impugned Act mandates the maintenance of a register of “eunuchs” residing in the city of Hyderabad who are suspected of kidnapping or emasculating boys, or of committing unnatural offences or abetting in the above. The impugned Act further permits the arrest of transgender persons without a warrant and imprisonment if found in female clothing or ornamented, or singing, dancing or participating in public entertainment in a street or public place, or when a transgender person is found in the company of a boy below the age of 16. The impugned Act is arbitrary as it targets the transgender community and treats them as a distinct class with no reasonable basis for such classification, and further permits discrimination against persons on the basis of their sex/gender, thus violating Article 14 of 15(1) of the Constitution. In curbing their right to freedom of speech and expression, and in invading upon their fundamental right to life, privacy, family life, personal liberty and basic dignity of life, the impugned Act further violates Article 19(1)(a) and Article 21 of the Constitution”, states the petition.
As per the petition, the Act discriminates against transgender persons only based on impotency and is clearly a case of targeted discrimination.
"The transgender community is particularly vulnerable community that has faced social stigma and ostracisation over the course of decades. Members of the Transgender community are publicly identifiable by their mannerisms making them further susceptible to violence at the hands of public authorities. The transgender community has been stigmatized and discriminated against in the criminal justice system. The impugned Act permits arrests without warrant of any transgender person who is in public with female clothing, and especially targets them when found involved in begging".
In particular, the following provisions of the Telangana Eunuchs Act have been challenged as being arbitrary and discriminatory:
(1) Section 1A: The petition states that the Telangana Eunuchs Act does not recognize any of the different categories of transgender persons (transsexual, intersexual, eunuch, transvestite etc.) and instead loosely defines the word ‘eunuch’ in its Section 1-A to include all individuals of the male sex who are impotent.
(2) Section 2 of the Act requires the government to maintain a register of the names and place of residence of all eunuchs residing in the city of Hyderabad, and who are “reasonably suspected of kidnapping or emasculating boys, or of committing unnatural offences or abetting the commission of the said offences”. The petitioners submitted that this section is prima facie discriminatory as it presumes that transgender persons are committing and/or abetting the offences of kidnapping and emasculating boys, as well as committing and/or abetting the commission of unnatural offences. Further, it is contended that the provision permits constant surveillance by public officials on all transgender persons and is violative of the right to privacy under Article 21 of the Constitution.
(3) Section 3 of the Act permits any person aggrieved by an entry in the register to lodge a complaint regarding the same when the register is first made or subsequently. The petitioners have claimed that no opportunity to be heard is given to the person before being targeted.
(4) Section 4 of the Act imposes a punishment on transgender persons if being found in a public place. It is contended that the Section criminalizes their freedom of speech and expression guaranteed under Article 19(1)(a) through public singing, dancing and entertainment but remains silent on the rights of all other citizens to do or not do the same
(5) Section 5, which criminalizes any ‘eunuch’ for having with him in his company a boy below the age of 16 and for having under his control at his house such a boy, is claimed as being wholly unjust and arbitrary.
(6) Section 6 requires the concerned district magistrate to locate boys under the age of 16 found in the company of a registered “eunuch” or in his house under his control, and to “deliver” them to their parents or guardians, unless the parent or guardian is also a eunuch. It is averred that Section 6 invalidates the parental or guardianship relation established by law and custom between a child and the guardian if the guardian is a transgender person and hence, is wholly discriminative of the right to family.
(7) It is submitted that Section 7, in so far as it criminalizes the act of emasculation regardless of whether an adult seeks to undergo the same consensually, is violative of Article 21.
The petitioners also submit that the Act is violative of the Constitutional guarantee under Article 15(1). Article 15(1) of the Constitution of India prohibits discrimination on the basis of religion, race, caste, sex, place of birth or any of them.
"The Act in identifying eunuchs as males who admit to being impotent or appear to be impotent on examination, and in penalizing certain behavior by them, is intrinsically discriminatory against eunuchs on the basis of sex. The law is a stark form of sex discrimination and is violently exclusionary. The law in its application to impotent men, and its criminalization of emasculation, inevitably links the two as the same. In ignoring the realities of biology and the natural physicality of impotency,it punishes persons for the same".
The petition also submits that in Karnataka Sexual Minorities Forum v. State of Karnataka (2017), on account of the intervention of the High Court of Karnataka, the state government amended Section 36A of the Karnataka Police Act of 1963 which conferred on the Commissioner the power to “prevent, suppress or control undesirable activities of eunuchs”. It also permitted the preparation and maintenance of a register of the names and places of residence of all eunuchs residing in a particular area who may be suspected of “kidnapping and emasculating boys or of committing unnatural offences or any other offences or abetting the commission of such offences.”
As an interim relief, the petitioner prayed the court to stay the operation of the Telangana Eunuchs Act, 1329 F, in the interest of justice and equity.