Assault on dignity of transgender persons: Telangana High Court strikes down Telangana Eunuchs Act as unconstitutional

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 ruling 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. The Court heard this PIL along with two related petitions. One related 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 Scheme..The petitioners contended that the Act was outdated and was a complete anachronism with modern-day life and thinking. They said that the law was discriminatory as it criminalised the transgender community without any basis. Further, they contended that the Act imposed arbitrary restrictions on the freedom of speech and expression of the transgender community while also breaching their fundamental right to privacy.The petitioners highlighted that the Act was against the letter and spirit of the Supreme Court's decision in NALSA v. Union of India, which had declared transgenders as the third gender..On the other hand, the State government contended that the Transgender Persons (Protection of Rights) Act enacted by the Central government covered only welfare measures to transgender persons. There was no provision for specific offences attributed to transgender persons such as kidnapping or emasculating boys or committing unnatural offences, the State submitted. The State said that the Act under challenge governed and addressed such offences. .The Court, however, disagreed with the State's stance and ruled that the Act was unconstitutional.It also ordered the State Welfare Board for transgender persons to include the Member Secretary of the Telangana State Legal Services Authority as one of its members. The Court emphasized that the Board should be a permanent body, although individual members may have limited tenures.Additionally, the Court has called for the Welfare Board to oversee various measures taken by the State to uplift the transgender community, including the proper implementation of the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020..Senior Advocate Jayna Kothari and Advocate K Sai Sandeep Pareekshit appeared for the petitioners. Special government pleader Andapalli Sanjeev Kumar appeared for the State..[Read Judgment]