Hits and misses of Telangana High Court’s Order striking down the ‘Eunuch’ Act

The recent judgment of the Telangana High Court wherein the Telangana Eunuchs Act was struck down for being violative of right to life and liberty is a step in the right direction. However, it was also a lost opportunity to address pleas for reservations for transgender persons in public employment and educational institutions

—

LAST week, the Telangana High Court struck down the Telangana Eunuchs Act, 1329 Fasli on a petition filed by Vyjayanti Vasanta Mogli, a transgender activist pioneering public interest litigation in high courts and the Supreme Court of India to promote LGBTQI+ rights.

The Act mandated  maintenance of a register of eunuchs residing in the city of Hyderabad suspected of kidnapping and emasculating boys or of committing "unnatural offences" or abetting the same.

It also permitted the arrest of transgender persons without a warrant and provided for their imprisonment, if they were found in female clothing, ornamented, singing, dancing or participating in public entertainment in a street or a public place or in the company of a boy below the age of sixteen years.

The court held V. Vasanta Mogli versus State of Telangana that the Act was violative of Articles 14, 15 and 21 of the Indian Constitution and violative of the rights of the people belonging to the transgender community.

The hits

The Criminal Tribes Act, 1871 was the first Act which classified marginalised groups as criminal, put forth a structure that entailed registration of all members of notified tribes irrespective of their criminal precedents and imposed restriction on their movements.

'Eunuchs' or transgender persons were specifically included as a criminal group. Under the Telangana Act, "eunuchs" were said to be reasonably suspected of committing unnatural offences or abetting the commission of the said offences.

This presumption of criminality continued to marginalise transgender persons along with Section 377 of the Indian Penal Code (IPC) (until 2018, when consent, or lack of it, was introduced as the determinant in the provision on "unnatural offence" in the IPC).

By striking down the Act as being unconstitutional, the court has ensured that transgender persons are not criminalised merely on account of their identities.

Secondly, the court has also noted that there is a lack of access to legal aid for transgender persons, and has directed that the state shall co-opt member secretary, Telangana State Legal Services Authority, as one of its members.

Also read: Karnataka clears transgender reservation; now other states must too

It has also extended the benefits of Aasara pension scheme introduced by the government of Telangana to the transgender persons as a class.

The misses

However, it is not the striking down of the Act which merits some discussion, but rather the associated pleas which prayed for reservations in public employment and educational institutions.

In my previous piece for The Leaflet, I had made a case for a queer reading of the equality code to secure a right to horizontal reservations. 

In this piece, I want to highlight how the judgment in the Vyajanti Mogli was a missed opportunity for granting a right to horizontal reservations.

The court held, "[T]ill [a] proper legislation is [put] in place, the state government as well as the Central government may issue administrative instructions providing for reservation to persons belonging to the transgender community in public employment as well as in educational institutions. 

"This would go a long way in bringing the transgender community into the mainstream fold."

The court noted that despite the ruling in National Legal Services Authority versus Union of India (NALSA judgment) and the subsequent enactment of the Transgender (Protection of Rights) Act, there has been no reservation scheme for transgender persons in matters of admission to educational institutions and for recruitment to public services.

It was in the NALSA judgment that the original sin was committed. The Supreme Court had directed the Union and state governments to treat transgender persons 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. 

However, such a reading of marginalisation fails to acknowledge that the lived realities of the lives of queer and transgender persons are often shaped by caste.

Multiple state governments have either been putting transgender persons in the Most Backward Classes or the Other Backward Classes (OBC) categories.

This not only conflates gender and caste, but also makes sure that transgender persons compete with other people from OBCs communities in one tar pit.

Also read: What do Queer People Need from the Law?

Conclusion

The post-colonial criminalisation of transgender lives demonstrates how gender identity, sexual orientation and sex shape the policing of lives and populations.

Non-heteronormative gender expressions and sexual orientations become the subject of heightened anxiety. In this context, the striking down of the Act is a step in the right direction.

However, because of historical criminalisation and erasure, the transgender community continues to remain one of the most marginalised communities in the country.

NALSA judgment was wrong insofar as it ruled that transgender persons should be granted reservations as members of the Socially and Economically Backward Classes, and needs to be revisited by the Supreme Court.

The longstanding demand of the transgender community has been horizontal reservations, keeping in mind that 46 percent of the transgender population in India is literate and 94 percent is either unemployed or employed in the informal sector.

In light of the recent litigation in Students for Students for Fair Admissions, Inc. versus President and Fellows of Harvard College, it is only apposite that I end with the dissent by Justice Jackson:

"Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations.

"Every moment these gaps persist is a moment in which this great country falls short of actualising one of its foundational principles— the 'self-evident' truth that all of us are created equal."