INTRODUCTION
Recently, in a judgment, a Division Bench of the High Court of Telangana struck down the Telangana Eunuchs Act which dates back to the colonial era. It defined Eunuchs as “all persons of the male sex who admit to being impotent or who appear to be impotent on medical inspection”.[1]
In the Bible, eunuchs are commonly described as men who were entrusted with the responsibility of overseeing a king’s harem, consisting of his wives and concubines, after undergoing castration.[2] Eunuchs served two primary roles in the Middle East and China. Firstly, they were employed in the capacity of guards or servants in the harems and other areas reserved for women. Secondly, they acted as chamberlains to kings, carrying out important duties in the royal courts. However, society holds conflicting views toward them. Eunuchs were regarded as “unmanageable” by British officials, who associated them with notions of “uncleanliness, illness, the spread of disease, and pollution.” They were depicted as individuals with a “perversion” for sexual relations with men. Colonial authorities asserted that eunuchs posed a significant risk to “public morality” and the “stability of colonial political power.” While eunuchs are perceived as individuals with ambiguous sexuality, possessing a certain level of power, and are accepted, if not expected, to be present during auspicious events, their ambiguous sexual identity also carries negative connotations. Serving as a classic representation of the threatening “other” concerning the norm, eunuchs evoke both attraction and fear, leading to their marginalization by the majority and their forced existence in the shadows. India’s diverse and pluralistic society acknowledges the presence of sexual minorities, yet simultaneously marginalizes them, failing to fully understand and address their unique challenges. Consequently, society becomes complicit in perpetuating their state of marginalization and the accompanying deprivation they experience.
GROUND REALITY
A study conducted by the All-India Hijra Kalyan Sabha (AIHKS) found that only one percent of eunuchs take birth into the community, while the majority either assume the identity of hijras (eunuchs) voluntarily or are coerced into joining through abduction and subsequent castration[3]. The study highlights that the national capital alone is home to approximately 30,000 eunuchs, which contradicts the “reliable estimates” suggesting that only one in lakh individuals are born eunuchs. Furthermore, the research reveals that approximately 1,000 young individuals in the city become eunuchs every year. The All India Hijra Kalyan Sabha (AIHKS), established in 1984 to advocate for the rights of the community, clarifies that the majority of eunuchs in the country do not identify as transvestites or hermaphrodites. Instead, they are individuals who have willingly undergone castration.[4] According to the AIHKS, vulnerable young boys who are addicted to substances are often abducted by agents of eunuch gurus and exposed to homosexuality. These boys are coerced into undergoing clandestine forced castrations, and sadly, only a small number of individuals find the strength to resist or fight against this injustice. One victim of forced castration recounts how he was abducted, forcibly addicted to drugs like brown sugar and hashish, and subsequently forced into engaging in homosexuality[5].
THE COURT ON THE ROOT CAUSE
The Hon’ble Telangana High Court further observed that provisions of the Eunuchs Act were almost identical to that of the Criminal Tribes Act of 1871.[6] In present times, anti-Begging laws follow the jurisprudential logic of the Eunuchs Act and the Criminal Tribes Act. The intention behind such laws was to condemn entire groups and communities of individuals, branding them as genetically or hereditarily inclined to criminal behavior, and implementing an exceptionally harsh system of monitoring and domination.[7]
LEGAL LOGOMACHY
Section 377 of the Indian Penal Code[8] was introduced in 1861 by the British; hence, anything against the “natural order” was made an offense. This section was challenged in the Naz Foundation v. National Capital Territory of Delhi[9] case. In the case of Navtej Singh Johar v. Union of India[10], the Honourable Court invalidated Section 377, thereby decriminalizing a particular category of consensual sexual relationships among adults. The intervention of the state should only be justified if it can establish a compelling interest, as outlined in Article 21 of the Constitution of India.[11] It is crucial to recognize that any form of discrimination contradicts the principles of equality, and embracing equality fosters the dignity of every individual in society. Drawing upon the precedent set by the Supreme Court in National Legal Services Authority (NALSA) v. Union of India[12] wherein fundamental rights of transgender individuals under articles 14, 19, and 21 were recognized, the Transgender Persons (Protection of Rights) Act, 2019 was enacted by Parliament. [13] Delving into the different provisions of the Transgender Persons (Protection of Rights) Act, 2019,[14] it is affirmed that this legislation stands as the inaugural statutory measure aimed at improving the circumstances of transgender individuals.
According to Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019, the term “transgender” encompasses individuals who identify as transmen and transwomen, as well as those with intersex variations, genderqueer individuals, and individuals who associate with sociocultural identities such as hijra, Kinner, aravani, and jog.[15] The Legislature has made efforts to uplift the transgender by providing some obligations under the Act. They are:
- Prohibition of discrimination (Section 3)
- Recognition of a transgender person’s identity (Section 4)
- Application process for a certificate of identity (Section 5)
- Issuance of certificate of identity (Section 6)
- Non-discrimination in employment (Section 9)
- Establishment of a grievance redressal mechanism (Section 11)
- Right of residence (Section 12)
- Obligation of educational institutions to provide inclusive education to transgender persons (Section 13)
- Vocational training and employment opportunities (Section 14)
- Access to healthcare facilities (Section 15)
- Establishment of the National Council for Transgender Persons (Section 16)
After the ruling of the Supreme Court in the NALSA[16] case, multiple states such as West Bengal, Rajasthan, Chhattisgarh, and Maharashtra have established Transgender Welfare Boards. Establishing such a board in Telangana would serve the best interests of the transgender community. The Karnataka State Policy on Transgender Persons[17], as well as similar policies implemented in other states, have also been referenced.
CONCLUSION
The situation of certain groups in India is incredibly difficult to comprehend, even for the most knowledgeable minds. It is paradoxical that despite the ongoing movements for the rights of disadvantaged groups, such as women, Dalits, and LGBTQ+ individuals, the awareness at the grassroots level remains shockingly poor. Scholars often advocate for these communities, yet they fail to recognize that discrimination persists even within their respective fields. Even those who are aware of the gravity of these issues tend to overlook them, leading to a deplorable living standard for these groups. Discrimination has become an accepted norm, not because people willingly support it, but due to the lack of proper enforcement and mechanisms to implement laws.
Author(s) Name: Shailesh Kumar Rajora (Law Centre-II, Faculty of Law, University of Delhi)
References:
[1] Live Law, ‘Telangana High Court Strikes Down Eunuchs Act, Upholds Rights of Transgender Community’, https://www.livelaw.in/high-court/telangana-high-court/telangana-high-court-strikes-down-eunuchs-act-rights-transgender-community-232286, (Accessed on July 5, 2023)
[2] Christianity.com, ‘What Is a Eunuch in the Bible? Definition and Example https://www.christianity.com/wiki/people/what-is-a-eunuch-in-the-bible-definition-and-examples.html (Accessed on July 5, 2023)
[3] Indiatimes, ‘The Truth About How Hijras Are Made in India: Because They’re Not Always Born That Way’ https://www.indiatimes.com/news/lgbtq-the-truth-about-how-hijras-are-made-in-india-because-they-re-not-always-born-that-way-257525.html (Accessed on August 7, 2023)
[4] ibid
[5] ibid
[6] Criminal Tribes Act 1871 (Repealed) and Habitual Offenders Act 1952
[7] ibid
[8] Indian Penal Code, 1860
[9] (2016) 15 SCC 619
[10] 2018 SCC OnLine SC 10
[11] Consitution of India, Article 21, 1950
[12] (2014) 5 SCC 438
[13] ibid
[14] The Transgender Persons (Protection of Rights) Bill, 2019
[15] ibid
[16] ibid
[17] Karnataka State Policy on Transgender Persons, 2017
