Telangana High Court: In a case wherein prayer was made to declare Telangana Eunuchs Act, 1329 Fasli (‘Telangana Eunuchs Act’) as ultra vires and unconstitutional, a Division Bench of Ujjal Bhuyan, CJ.* and C.V. Bhaskar Reddy, J., opined that the Telangana Eunuchs Act was violative of the human rights of the third gender community besides being an intrusion into their private sphere as well as an assault on their dignity. It was thus offensive of both right to privacy and right to dignity of transgender persons. Moreover, it was not only violative of Article 14 but also clearly violated Article 21 of the Constitution. Thus, the Court opined that such an enactment could no longer continue to find a place in our statute book and thus, was accordingly declared as unconstitutional.
Background
The petitioners, herein, were transgender persons residing in the State of Telangana. Telangana Eunuchs Act previously referred to as Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 Fasli was first enacted in 1919 and was applicable to eunuchs as defined under the said Act. 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 Telangana Eunuchs 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 was found in the company of a boy below the age of sixteen years.
It was submitted that the Telangana Eunuchs Act was an outdated legislation and was a complete anachronism with modern day life and thinking and it was a discriminatory law that criminalised the transgender community unfairly without any legal basis. Vires of the Telangana Eunuchs Act had been questioned on the ground that it targeted the transgender community and treated them as a distinct class with no reasonable basis for such classification, besides permitted discrimination against persons based on their sexual orientation and gender, thus violating Articles 14 and 15(1) of the Constitution. It was further contended that the Telangana Eunuchs Act imposed arbitrary restriction on the freedom of speech and expression of the transgender community and also breached their fundamental right to privacy. Thus, the Telangana Eunuchs Act was violative of Articles 19(1) and 21 of the Constitution.
Thus, the present Public Interest Litigation (‘PIL’) was filed challenging this law. The Court heard the present PIL along with two other related petitions. The second plea sought directions to the State to provide reservations to transgender persons in educational institutions and public employment. The third plea requested that transgender individuals be granted payment of three months’ social security pension under the Aasara Pension Scheme.
Analysis, Law, and Decision
The Court opined that if widows, disabled persons, beedi workers, single woman, HIV persons etc., were entitled to the benefit under the Aasara Pension Scheme as a class, then as to why and how transgender persons could be excluded from such benefits as a class. The Court further opined that transgender community was one of the most deprived, neglected and discriminated against communities in the State and in the country. They had been held to be belonging to socially and economically backward class. They fulfil eligibility requirement under the Aasara Pension Scheme. Thus, the Court held that the benefit of Asara Pension Scheme should be made available to the members belonging to the transgender community.
The Court noted that Section 1-A of the Telangana Eunuchs Act defined the word ‘eunuch’ and included all persons of the male sex who admit to be impotent or who clearly appear to be impotent on medical inspection. The Court opined that this definition of eunuch was repugnant to the definition of transgender person under Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019 (‘Transgender Persons Act’), which defined ‘transgender person’ as a person whose gender did not match with the gender assigned to that person at birth and included trans-man or trans-woman (whether or not such person had undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
The Court noted that from the preamble of the Criminal Tribes Act, 1871, it was clear that it had grouped together certain tribes declared as criminal tribes and eunuchs under a single classification. Therefore, the Criminal Tribes Act, 1871 assumed that eunuchs as a class were criminal. The Court further noted that the Criminal Tribes Act, 1871 was repealed in 1952, but, the Telangana Eunuchs Act, 1329 Fasli which was almost in pari materia to the provisions contained in Part II of the Criminal Tribes Act, 1871, continued to remain in the statute book.
The Court relied on National Legal Services Authority v. Union of India (‘NALSA’), (2014) 5 SCC 438; K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and opined that there could be no iota of doubt that such an enactment was anathema to our constitutional philosophy. Thus, the Court opined that this was not only arbitrary and unreasonable but was also manifestly arbitrary in as much as it criminalised the entire community of eunuchs.
The Court opined that the Telangana Eunuchs Act was violative of the human rights of the third gender community besides it was an intrusion into their private sphere as well as an assault on their dignity. It was thus offensive of both right to privacy and right to dignity of transgender persons. Moreover, it was not only violative of Article 14 but was also clearly violative of Article 21 of the Constitution. Thus, the Court opined that such an enactment could no longer continue to find a place in our statute book and thus, was accordingly declared as unconstitutional.
The Court relied on NALSA (supra), wherein the Supreme Court had issued a series of directions besides holding that hijras/eunuchs etc be declared and treated as third gender and the Central and State Governments were directed to treat persons belonging to the third gender as socially and educationally backward class of citizens and to extend all kinds of reservation in cases of admission to educational institutions and in appointments. This Court observed that though Parliament had enacted the Transgender Persons Act where after the Central Government had framed the Transgender Persons
(Protection of Rights) Rules, 2019, no reservation had been provided to the transgender community in matters of admission to educational institutions and for recruitment to public services. Thus, the Court issued the following directions:
- The Telangana Eunuchs Act, 1329 Fasli was declared as ultra vires the Constitution and accordingly was struck down as unconstitutional;
- The benefits of Aasara Pension Scheme introduced by the Government of Telangana in 2014 shall be extended to the transgender persons as a class;
- State of Telangana was 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;
- State Welfare Board for transgender persons, Telangana State shall co-opt Member Secretary, Telangana State Legal Services Authority as one of its members. It shall be a permanent body though individual members may have a limited tenure; and
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State Welfare Board for transgender persons, Telangana State shall monitor the various steps taken by the Government of Telangana for upliftment of the transgender community including the proper and effective implementation of the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.
[V. Vasanta Mogli v. State of Telangana, 2023 SCC OnLine TS 1688, decided on 6-7-2023]
Judgment authored by: Chief Justice Ujjal Bhuyan
Advocates who appeared in this case:
For the Petitioners: Jayna Kothari, Senior Counsel;
For the Respondents: Andapalli Sanjeev Kumar, Special Government Pleader.
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