Constitutionality of the Eunuchs Act, 1919

The Eunuchs Act, 1919[1] (‘The Act’), previously called the Andhra Pradesh (Telangana Area) Eunuchs Act is a discriminatory law that violates the fundamental rights of transgender people. Under Section 2 of the said Act, there was a requirement to register with the government authorities which was applied to all eunuchs. Since they were suspected of abducting or mutilating boys, performing unnatural offenses, or aiding and abetting offenses, Eunuchs were obligated to disclose information about their residences under Section 3 of the said Act. Also, the law permitted the non-warrantless arrest of transsexual individuals & if they were seen wearing feminine attire or ornaments, singing, dancing, or otherwise engaging in public, or if a transgender person was discovered with a boy under the age of sixteen, they may face up to two years in prison, mandated under Section 4 & 5 of the said Act.

The Act is a relic of a bygone era, and it has no place in a modern, democratic society. It was proclaimed in the first place because of the prevailing social attitudes towards transgender people at the time. In the early 20th century, transgender people were often seen as a nuisance or a threat,[2] and the Act was seen as a way to control and regulate them. However, these social attitudes have changed significantly since then. Back in 2018,[3] a transgender woman was killed by a mob in Hyderabad. The woman, who was named Laxmi, was attacked by a group of men who believed that she was part of a dacoit gang out to kidnap children. The attack was based on fake Whatsapp forwards that were circulating at the time. Laxmi was killed in the attack, and two other transgender women were injured. The incident sparked outrage across India, and it highlighted the dangers that transgender people face in the country. Transgender people are now increasingly accepted and respected, and they are no longer seen as a threat. The Act was first enacted by the erstwhile princely state of Hyderabad in 1919, and it has been challenged in court several times, most recently in the case of V. Vasantha Mogli v. State of Telangana & Others[4] which rightly upheld the unconstitutionality of this law on the 6^th of July, 2023. The Telangana Eunuchs Act, 1919 and Part II of the Criminal Tribes Act of 1871,[5] which criminalized particular tribal groups, are comparable, according to the court. The Act, while once well-intentioned, requires critical scrutiny due to its inherent discriminatory provisions.

Impact of the Eunuchs Act Judgement

This judgement is a watershed moment in the fight for transgender rights in India. It is a victory that will be celebrated by transgender people and their allies all over the country for years to come. It sets a precedent for other courts in India to follow, sending a message to the government that it must take steps to protect the rights of transgender people which in turn, gives transgender people hope for a better future. The decision shows that the transgender community is not alone and that their rights are being fought for. This could give transgender people the courage to stand up for their rights and demand equal treatment.

First, it will allow transgender people to live their lives without fear of prosecution. Secondly, this decision will help to destigmatize transgender people and challenge harmful stereotypes. The Telangana Eunuchs Act was based on the outdated and harmful stereotype that transgender people are inherently criminal. The court’s decision to strike down the Act sends a clear message that transgender people are not criminals, and that they deserve to be treated with dignity and respect. This will help to destigmatize transgender people and make it easier for them to live their lives openly and without fear of discrimination. Thirdly, it will help to improve access to education, employment, and healthcare for transgender people. The Telangana Eunuchs Act made it difficult for transgender people to access these essential services. The court’s decision will make it easier for transgender people to get the education, employment, and healthcare that they need. This will help to improve their quality of life and give them the opportunity to reach their full potential. Lastly, the court’s decision will help to bring the transgender community to the forefront of public attention, which will help to break down the stigma and discrimination that they face. It will give transgender people a sense of hope and empowerment, which will help them to fight for their rights and demand equal treatment.

Nature of the Eunuchs Act

The definition of “eunuch” in the Act, is based on outdated and harmful stereotypes about transgender people. The Act defines a Eunuch as a “male person who has been castrated, or who dresses or ornaments himself in the manner of a woman, or who behaves in a swishing manner.” This definition excludes transgender women, who are female-assigned people who identify as women. It also excludes transgender people who do not dress or ornament themselves in a traditionally feminine way. There is a prohibition on singing, dancing, or cross-dressing in public spaces in the Act, which can be construed as a clear violation of the right to freedom of expression guaranteed by Article 19 (1) (a) of the Constitution of India.[6]

Transgender people have the same right to freedom of expression as everyone else, and they should not be prohibited from expressing themselves in ways that are consistent with their gender identity. The same was held in the landmark NALSA judgement, also known as National Legal Services Authority v. Union of India[7] where the Supreme Court of India recognised transgender people as the ‘third gender’ and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them. The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution[8] and held that this right must be respected by the Government and society at large.

Further, the power of the police to arrest eunuchs who violate the Act, is arbitrary and gives the police too much power to harass and intimidate transgender people. The Act does not specify what constitutes a violation of the Act, and it gives the police too much discretion to decide who to arrest. This has led to transgender people being arrested for simply expressing themselves in ways that are consistent with their gender identity. The right to freedom from arbitrary arrest is a fundamental human right that is enshrined under Article 22 of the Indian Constitution.[9] It is the right not to be arrested without a valid reason and this right is essential to protect people from being detained without justification.

The said Act also violates the right to equality under Article 14 of the Constitution[10] because it discriminates against transgender people on the basis of their gender identity which is not a reasonable classification because it does not have a rational nexus to any legitimate government purpose. The Act is not necessary to achieve any legitimate government purpose because there are other, less discriminatory ways to achieve the same purpose, but imposes a disproportionate burden on transgender people. It violates the fundamental rights of transgender people, and it contributes to the stigma and discrimination that transgender people face in India.

Comparative Study

Prior to the Transgender Persons (Protection of Rights) Act, 2019,[11] transgender individuals faced discrimination and marginalization due to various regressive laws and societal attitudes. Telangana’s unfortunate experience with this draconian law is not an isolated incident. Numerous states within the country have been afflicted by the presence of comparable oppressive laws, thereby illustrating a distressing pattern of discriminatory legislation prevalent across different regions. Conducting a comprehensive comparative study highlights the prevalence of such laws in various states and sheds light on the urgent need for safeguarding of fundamental rights of transgender people. The following examples serve as testament to the pervasive nature of these discriminatory statutes:

• In 2009, the Tamil Nadu government introduced a board known as the “Tamil Nadu Aravanigal (Transgender) Welfare Board” which required transgender persons to undergo mandatory sex reassignment surgery to be recognized as a transgender. However, in 2019, the Madras High Court declared this requirement as unconstitutional in the case of Arunkumar & Another vs The Inspector General of Registration & Others.[12]
• The Maharashtra government had a similar law that mandated sex reassignment surgery for transgender recognition. In 2014, the Bombay High Court, in the case of National Legal Services Authority (NALSA) v. Union of India,[13] declared this requirement as unconstitutional, affirming the rights and recognition of transgender individuals without imposing any medical procedures.
• The West Bengal government had a policy that required transgender persons to undergo sex reassignment surgery for changing their gender on official documents. However, in 2019, the Calcutta High Court, in the case of Jayita Mondal v. The State of West Bengal,[14] struck down this requirement and emphasized the rights of transgender individuals to self-identify their gender.
• Odisha had a law that required transgender individuals to obtain a certificate from a district screening committee to be recognized as a transgender. In 2020, the Odisha High Court, in the case of Meera Parida v. State of Odisha & Another,[15] declared this requirement as unconstitutional and emphasized the right of self-identification for transgender persons.
• Delhi had a law that criminalized begging, which disproportionately affected transgender individuals who often engaged in begging due to limited employment opportunities. In 2018, the Delhi High Court, in the case of Harsh Mander & Another vs Union of India & Others,[16] struck down the provision criminalizing begging as it violated fundamental rights and adversely affected the transgender community.

These examples highlight the widespread existence of laws that unjustly target and discriminate against transgender individuals. The struggle against such legislation transcends state boundaries, indicating a need for broader legal reform and a comprehensive understanding of constitutional rights. These judgments not only demonstrate the flaws in these specific laws but also underscore the judiciary’s role in upholding the principles of equality, dignity, and freedom of expression enshrined in the Constitution. They serve as important milestones in the fight against discriminatory laws, setting valuable precedents for future legal battles and influencing the broader discourse on transgender rights in India.

Therefore, it is imperative to recognize these cases as part of a collective effort to challenge and dismantle discriminatory laws across the nation. The lessons learned from these judgments should be utilized to inform and guide policymakers in enacting legislation that upholds the principles of equality, non-discrimination, and respect for individual autonomy and identity. The struggle for transgender rights goes beyond any one state, requiring a unified and concerted effort to create an inclusive and just society for all. 

Eunuchs in India

The decline in the number of eunuchs in India as shown in the pie-chart is a worrying trend.[17] It suggests that eunuchs are being marginalized and discriminated against, and that their rights are not being protected. The lack of privilege among eunuchs in India is a serious problem. It means that eunuchs are denied access to basic necessities, and that they are often treated as second-class citizens.

There is a significant decline of the number of eunuchs in India after 1947.[18] This decline is likely due to a number of factors, including the decline of the traditional practice of eunuch castration, the increasing social stigma associated with being a eunuch, and the lack of legal protections for eunuchs.

The table representing the lack of privilege among eunuchs in India shows that they are often denied access to education, employment, healthcare, housing, and social status. This discrimination has a significant impact on the lives of eunuchs, and it makes it difficult for them to live a decent life.

The table representing their lack of privilege paint a troubling picture of the situation of this marginalized community. The lack of privilege among eunuchs is evident in all areas of their lives, from education and employment to healthcare and housing. This discrimination has a significant impact on the lives of eunuchs, and it makes it difficult for them to live a decent life. The graphs on the number of eunuchs in India and their lack of privilege are a call to action. They highlight the need for greater awareness of the discrimination faced by this marginalized community, and they call for action to be taken to improve their lives.

Way Forward

The recent landmark judgment in the case of V. Vasantha Mogli v. State of Telangana & Others, which declared the Eunuchs Act, 1919 as unconstitutional, represents a pivotal milestone in the ongoing fight for transgender rights. To capitalize on this crucial momentum, it is imperative to embark on a comprehensive legal reform endeavour. Advocacy groups, human rights organizations, and activists must join forces to challenge and advocate for the repeal or amendment of discriminatory laws prevailing across the nation. Moreover, the government should proactively undertake a thorough review and reform of any legislation that encroaches upon the rights and identities of transgender individuals.

Conducting extensive awareness campaigns becomes paramount in order to enlighten society about transgender rights, debunk pernicious stereotypes, and foster an environment of inclusivity. Workshops, seminars, and educational programs ought to be organized at various levels, including educational institutions, workplaces, and community centers, to promote understanding, acceptance, and inclusiveness. By undertaking such initiatives, we can effectively counter the deeply ingrained stigma and discrimination that transgender people face on a daily basis.

Ensuring equal access to education for transgender individuals stands as a paramount objective. This entails implementing specific measures to address the unique challenges they encounter in pursuing education. These measures encompass creating inclusive and safe environments, providing scholarships and financial aid, and instituting robust anti-discrimination policies within educational institutions. Additionally, conducting sensitization programs for teachers and administrators is vital to foster an inclusive learning environment where transgender students can thrive.

Eliminating discrimination against transgender individuals in the workplace becomes an urgent imperative. This calls for the implementation of comprehensive anti-discrimination policies, employer awareness programs, and extensive training for employees to cultivate an inclusive work culture. Simultaneously, the government should introduce schemes and initiatives that promote equal employment opportunities, while offering vocational training and skill development programs tailored to the specific needs of transgender individuals.

Furthermore, ensuring accessible and transgender-friendly healthcare facilities becomes a critical endeavor. Healthcare providers must undergo comprehensive training on transgender healthcare needs and sensitization, thus guaranteeing that transgender individuals receive respectful and inclusive treatment. Efforts should be focused on addressing the specific health concerns faced by transgender individuals, including gender-affirming healthcare, mental health support, and comprehensive HIV/AIDS prevention and treatment services.

Addressing the housing needs of transgender individuals also assumes paramount importance. Government housing schemes should meticulously consider the unique vulnerabilities and requirements of transgender individuals, thus providing safe and affordable housing options. Concurrently, the establishment of social support programs, including counseling services and community centers, becomes instrumental in providing emotional support, fostering networking opportunities, and engendering a sense of belonging within the transgender community.

By effectively implementing these critical steps, we have the potential to bring about substantial transformation in the lives of transgender individuals in India. Such efforts will pave the way for dismantling discriminatory laws, challenging societal attitudes, and establishing an inclusive and just society where transgender individuals can fully exercise their fundamental rights, live with dignity, and experience equal treatment under the law.

[1] The Eunuchs Act, 1919, Act No. 16 of 1329, 3 & 4 Geo. V, ch 15 (India).

[2] Hinchy, J., 2014. Obscenity, moral contagion and masculinity: Hijras in public space in colonial North India. Asian Studies Review, 38(2), pp.274-294.

[3] The Quint, https://www.thequint.com/news/india/hyderabad-trans-woman-killed-over-child-abduction-whatsapp-rumour (last visited July 7, 2023).

[4] V. Vasantha Mogli v. State of Telangana & Others 2020 SCC OnLine TS 440.

[5] The Criminal Tribes Act, 1871, 14 of 1871, 35 Vict. c. 14 (India).

[6] Constitution of India, 1950, Art. 19(1) (a).

[7] National Legal Services Authority vs Union of India (2014) 5 SCC 438.

[8] Constitution of India, 1950, Art. 21.

[9] Constitution of India, 1950, Art. 22.

[10] Constitution of India, 1950, Art. 14.

[11] Transgender Persons (Protection of Rights) Act, 2019, No. 40 of 2019, Acts of Parliament of India, 2019, 390–404.

[12] Arunkumar & Anr. v. The Inspector General of Registration & Ors W.P. (MD) No. 4125 of 2019.

[13] NALSA v. Union of India (2014) SCC 438.

[14] Jayita Mondal v. The State if West Bengal & Others W.P No. 8121 (W) of 2014.

[15] Meera Parida v. State of Odisha & Anr. W.P. (C) No. 5772 of 2021.

[16] Harsh Mander & Anr. v. Union of India & Ors. W.P. (C) 10498/2009 & CM APPL. 1837/2010.

[17] Wassersug, R.J., McKenna, E. and Lieberman, T., 2012. Eunuch as a gender identity after castration. Journal of Gender Studies, 21(3), pp.253-270.

[18] Hinchy, J., 2017. The eunuch archive: Colonial records of non-normative gender and sexuality in India. Culture, Theory and Critique, 58(2), pp.127-146.