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Synopsis

The Telangana High Court has recently declared the Telangana Eunuchs Act, 1329 Fasli as ultra vires the Constitution of India and accordingly struck it down as unconstitutional.

Telangana Eunuchs Act, 1329 Fasli previously referred to as Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 Fasli was first enacted in the year 1919 and was applicable to eunuchs as defined under the said Act.

The Act mandated the 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 Act also 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 if found in the company of a boy below the age of sixteen years.

Three Public Interest Litigation (PIL) were filed before the high court in 2018 alleging that the Eunuchs Act was outdated legislation and a discriminatory law that criminalised the transgender community unfairly without any legal basis.

Apart from that, prayers were also made to frame a comprehensive policy along with a Transgender Welfare Board in the State of Telangana, provision of reservation for transgender persons in educational institutions and in public employment, access to free medical care, separate toilets, a pension scheme and free of cost rations etc. 

Regarding the prayer to strike down the Act, the contention of the respondent authorities was that the Central Act i.e., the Transgender Persons (Protection of Rights) Act, 2019 covered only welfare measures to transgenders, and there was no provision for specific offences committed usually by transgenders.

It was further argued that through the PIL pleas, the petitioner were claiming for protection in respect of offences committed by transgenders under the guise of discrimination which was not justified as the issue of discrimination had been taken care of by the Central Act.

Moreover, regarding the prayers concerning welfare issues of transgender persons, court was apprised that measures were being taken to help and ensure the safety of the community and in August 2022, a State Welfare Board for transgender persons in the State of Telangana had already been created. 

The division bench of Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy noted that though there already were laws in place to protect the rights of transgender persons, still proactive actions were needed. 

Regarding the issue of reservation, court held that till proper legislation is brought 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.

Furthermore, while pointing out that despite being one of the most deprived, neglected and discriminated against communities in the State, transgender persons were not covered under the Aasara Pension Scheme, court directed the Government of Telangana to extend the benefit of the scheme to the community. 

On the point of the constitutionality of the Enunch Act, the division bench noted that the legislation 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 is not only violative of Article 14 but is also clearly violative of Article 21 of the Constitutional of India. Such an enactment can no longer continue to find a place in our statute book. It is accordingly declared as unconstitutional," observed the bench. 

Case Title: V. Vasanta Mogli v. State of Telangana and connected matters