The court observed that the state government should uplift the transgender community by providing them reservations and pensions.
Trans activists with their lawyers. (Supplied)
The Telangana High Court on Thursday, 6 July, abolished the Telangana Eunuchs Act, 1329 Fasli, declaring it “unconstitutional” as it violated the rights of transgender persons and was an assault on their dignity.
The Act, previously known as the Andhra Pradesh (Telangana Area) Eunuchs Act, was first enacted in the year 1919 in the Hyderabad Nizam’s territories.
The Act mandated the police to maintain a register of transgender persons residing in Hyderabad, who were suspected of kidnapping, emasculating boys, committing unnatural offences, or abetting the same. It also permitted the arrest of transgender persons without a warrant.
A bench of Chief Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy struck down the Eunuchs Act and delivered a landmark judgement.
Welcoming the move, noted transgender rights activist Vyjayanti Vasanta Mogli, who was also one of the petitioners, told South First: “It is a pre-independence, pre-constitutional, colonial vestige, fundamentally regressive and a colonial remnant that had to go now. The Act brought a climate of fear and violence and a culture of impunity.”
Mogli added that the Telangana High Court judgment was “a baby step”. “We have to do a lot of groundwork to remove these knots.”
Her co-petitioner Sayantan Datta held the judgement significant since trans people fought for it and won.
Mogli, Datta, and Monalisa filed the Public Interest Litigation (PIL) challenging the Telangana Eunuchs Act in 2018. Two more PILs seeking reservations for the community in educational institutions and government employment, and providing them the Telangana government’s Aasara Pension Scheme were also filed.
The word “eunuch” which has been historically used to describe transgender people, is derogatory and offensive in nature. In April 2014, the Supreme Court recognised the word “transgender” as the correct term to use. The use of the word “eunuch” in this report is to describe the Act.
Under the abolished Act, the word “eunuch” included all persons of the male sex, who admit to be impotent or who appear to be impotent on medical inspection.
Under the Act, a trans person could be imprisoned if found in feminine garb, wearing ornaments, singing, or dancing publicly, and found with a boy below the age of 16 years.
Trans activist Mogli noted that transgender persons, most of who are engaged either in begging, toli badhai, or sex work, were made to feel criminal merely by their identity and not action.
“Usually, a crime is determined by action. But here the police would presuppose that a transgender person is a criminal merely by their identity. No transgender person would question them as they knew it might result in a whole rainfall of blows, lathis, and other such acts,” Mogli asserted.
The high court held the Act was an intrusion into the privacy of transgender people, offensive to both their right to privacy and their right to dignity.
“It is not only violative of Article 14 (right to equality before law) but is also clearly violative of Article 21 (right to freedom and protection of life) of the Constitution of India,” it added.
Meanwhile, the state government argued the Act was “purely in the interest of public order” and devoid of any discrimination against transgender persons.
Mogli noted that the Eunuch Act of 1919 lacked transparency and communication as the police could round up transgender persons and invoke the Act without their knowledge.
“The police would never mention the law or Act to our people, who are marginalised and vulnerable. It wouldn’t even cross the mind of the transgender detainees to ask the police under which Act are they being detained or shifted out,” she claimed.
The court also observed the Eunchus Act had, links to the Criminal Tribes Act, 1871, which was repealed in 1952.
In accordance with the NALSA judgment of the Supreme Court, the Telangana HC observed, that the act had, “stigmatised entire communities, including the eunuchs as criminals.”
Trans rights activist Mogli said that the police defended the Eunuch Act by submitting affidavits in the court.
“Police have always acknowledged this act. The police defended this act. They asked the court to not remove the act right now. It’s sort of a tool of power for them in a way. They want as many tools in hand as possible. If they use it or not is secondary.”
Apart from striking down the archaic Eunuch Act, the high court also observed that the state government should act to uplift the transgender community.
While hearing one of the two other PILs, it directed the Telangana government to extend the benefits of the Aasara pension to the transgender community.
The Telangana government scheme reportedly provides around ₹2,000 a month to the beneficiaries.
In its judgement, the court ordered to add transgender persons as a separate category, apart from the already existing 10 categories.
“If widows, disabled persons, beedi workers, single women, HIV persons, etc, are entitled to benefits under the Aasara Pension Scheme as a class, we fail to understand why and how transgender persons can be excluded from such benefits as a class,” the high court bench said in its ruling.
It added that the transgender community is socially and economically backward, and is one of the most deprived, neglected, and discriminated against communities in India.
However, Mogli said that only transgender people of Telangana who fall Below the Poverty Line (BPL) category will be able to avail the pension amount through the scheme.
“One needs a white ration card, to avail the Aasara pension. Someone like me, who is educated, or has a job, or an annual income is not eligible for the pension,” she said.
The court also directed Telangana to implement reservations in public and educational institutions and government employment services for trans people.
Speaking about reservation, co-petitioner and journalist Datta told South First: “Though the court doesn’t mention anything about how to implement the reservation, we urge the state government to implement horizontal reservation.”
According to the 2014 NALSA judgement, the Supreme Court ruled that transgender persons have a right to reservation since they are a “socially and educationally backward class”.
Explaining the 2014 judgement, Datta, who goes with they/them pronouns, said, “According to this, the reservation for the transgender community technically falls under the OBC category.”
They (Datta) further added that transgender persons from marginalised castes have been arguing that the court was “forcing” them to take reservations under the OBC category.
“So the Supreme Court is essentially asking them to forgo their Dalit identity,” Datta said.
The trans activists were of the view that, instead of implementing reservation in a compartmentalised way, it should be horizontal reservation for trans people — which means, if the government decides on a certain percentage of reservation for trans persons, it should cut across all vertical groups already present (ST, SC, OBC, etc).
This affirmative action will reach transgender people from all groups.
Activist Mogli opined that the NALSA judgement was but a basic step and the Telangana government can act the way its Karnataka counterpart did.
“In Karnataka, they did that, they gave one percent horizontal reservation in government services. So we are requesting the Telangana government to grant similar affirmative action measures for trans people in the state, in public education and employment as well as government welfare schemes,” Mogli explained.
Mogli further adds, “When most state governments are providing horizontal reservation for women, they can definitely implement it for the transgender people too.”
The high court also observed that instead of transgender persons approaching the district magistrate or the revenue divisional officer for a certificate of identity, it would be better if the state’s legal authorities reached out to the community to provide them with their identity certificates.
Noting that transgender persons face several roadblocks to even get an identity identity card and certificate, Mogli said that it had several uses.
“From accessing transgender washrooms to getting welfare schemes, to be able to opt for gender reassignment surgery, for each and every thing this certificate is a must.”
She pointed document that would connect the official past identity of a trans person to the present.
“If a transgender person completed their school education and changed their name and gender then, this certificate will help in officially identifying them,” said Mogli.
Datta suggested that the government should take the assistance of NGOs that already work with transgender people on the ground and can act as an interface between the trans persons and the state.
“A similar approach was taken during the 1990s, and 2000s for the eradication of the AIDS epidemic. The LGBTQ+ community people were considered highly vulnerable to AIDS. Officials couldn’t reach out to the LGBTQ+ community people, as they were stigmatised. So the grassroots-level NGOs were recruited to take care of this intervention,” Datta explained.
They stressed on providing proper compensation to ground-level workers, contrary to what happened during the AIDS eradication programme.
The court ordered that Telangana State Welfare Board for transgender persons shall co-opt a member secretary of the Telangana State Legal Services Authority. “It shall be a permanent body, though individual members may have a limited tenure.”
Besides, the welfare board was directed to work for the upliftment of trans people, including proper and effective implementation of the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020.
Both Mogli and Datta agreed that the Telangana High Court striking down the Eunuch Act was a huge step in the right direction for trans rights.
“The NALSA judgement, Karnataka’s one percent reservation judgement, are all important. I hope this judgement snowballs and every discriminatory law present in the country gets struck down,” an elated Datta said.
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