Telangana Eunuchs Act Declared Unconstitutional by Telangana High Court, Rights of Transgender Persons Affirmed

The Telangana High Court recently struck down the Telangana Eunuchs Act as unconstitutional, upon finding that it violated the fundamental rights of transgender persons and was an assault on their dignity. [V Vasanta Mogli v. The State of Telangana and Ors]

A Bench of Chief Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy found that this legislation intruded upon the private sphere of transgender persons and was manifestly arbitrary.

“This legislation is violative of the human rights of the third gender community besides it is an intrusion into their private sphere as well as an assault on their dignity. 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,” the judgment stated.

The Court noted that the Act had proceeded on the assumption that eunuchs, as a class, were criminal. In this regard, it was observed that the Act had grouped together certain tribes which were declared as criminal tribes and eunuchs under a single classification. It was held that there was not an iota of doubt that the Act was anathema to the Constitutional philosophy of India.

“This is not only arbitrary and unreasonable but is also manifestly arbitrary in as much as it criminalises the entire community of eunuchs,” the Court held. The judgement was passed after examining the Supreme Court’s judgments in the NALSA case, the KS Puttaswamy case and Navtej Singh Johar v. Union of India.

Notably, the Court also directed the Central and State governments to take measures to provide for reservation to transgender persons in educational admissions and recruitment in public employment. “State of Telangana is directed to issue government orders/administrative instructions providing for reservation to persons belonging to the transgender community in matters of admission into educational institutions and recruitment to Government and public services,” the judgment said.

It has further directed that the benefits of the Aasara Pension Scheme, which was introduced by the State of Telangana in 2014, must be extended to transgender persons.

The Telangana Eunuchs Act of 1919 mandated the maintenance of a register of eunuchs residing in the city of Hyderabad if they were suspected of kidnapping and emasculating boys or of committing or abetting unnatural offences.

The Act permitted the arrest of transgender persons without a warrant if they were found in female clothing or ornamented or singing, dancing, or participating in public entertainment in a street or a public place. A jail term of up to two years was also prescribed for the same. A transgender person found in the company of a boy below the age of sixteen years could also be arrested without a warrant and imprisoned for up to two years.

A public interest litigation (PIL) was moved challenging this law.

Alongside this PIL, the court also heard two related petitions. One of these petitions requested the court to direct the state government to provide reservations for transgender individuals in educational institutions and public employment.

The second plea sought the payment of a three-month social security pension to transgender individuals under the Aasara Scheme.

The petitioners argued that the law in question is outdated and out of touch with modern-day life and thinking. They claimed that the law is discriminatory as it unjustly criminalizes the transgender community without any reasonable basis.

Furthermore, the petitioners contended that the law imposes arbitrary restrictions on the freedom of speech and expression of transgender individuals, while also infringing upon their fundamental right to privacy.

The petitioners emphasized that the law is contrary to the Supreme Court's landmark decision in NALSA v. Union of India, which recognized transgenders as the third gender.

In response, the state government argued that the Transgender Persons (Protection of Rights) Act, enacted by the central government, primarily focuses on the welfare of transgender individuals. According to the state, the Act under challenge addresses specific offenses attributed to transgender persons, such as kidnapping, emasculating boys, and engaging in unnatural activities.

However, the court disagreed with the state's position and declared the Act to be unconstitutional.

Furthermore, the court issued an order requiring the inclusion of the Member Secretary of the Telangana State Legal Services Authority as a member of the State Welfare Board for transgender persons. The court emphasized the need for the Board to be a permanent body, although individual members may have limited tenures.

Additionally, the court called upon the Welfare Board to oversee various measures implemented by the state government to uplift the transgender community. This includes ensuring the proper implementation of the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020.