Indian Kanoon - Search engine for Indian Law

4. Petitioners are transgender persons residing in the State of Telangana.

5. 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 is applicable to eunuchs as defined under the said Act. Telangana Eunuchs Act, 1329 Fasli (briefly, 'the Act' hereinafter) mandates maintenance of a register of eunuchs residing in the city of Hyderabad who are suspected of kidnapping or emasculating boys or of committing unnatural offences or abetting the same. The Act permits 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 is found in the company of a boy below the age of sixteen years.

9. Respondent No.2 i.e., State of Telangana represented by the Principal Secretary to Home Department, Government of Telangana has filed affidavit. 9.1. Adverting to the decision of the Supreme Court in NALSA (supra), it is stated that following the said decision, Parliament has enacted the Transgender Persons (Protection of Rights) Act, 2019. Referring to various provisions of the Transgender Persons (Protection of Rights) Act, 2019, it is stated that the said Act is the first statutory enactment meant for amelioration of the conditions of the transgenders. The said Act answers all the contentions raised by the petitioners. 9.2. Insofar challenge to the Telangana Eunuchs Act, 1329 Fasli is concerned, it is the contention of respondent No.2 that the Central Act i.e., the Transgender Persons (Protection of Rights) Act, 2019 covers only welfare measures to transgenders. There is no provision for specific offences committed usually by transgenders i.e., kidnapping or emasculating boys or committing unnatural offences or any other offences abetting the commission of such offences. The impugned legislation governs and addresses the same. Petitioners claim for protection in respect of offences committed by transgenders under the guise of discrimination is not justified. The issue of discrimination has been taken care of by the Central Act. 9.3. It is stated that both Parliament and State Legislatures can legislate on the same subject. Referring to Section 4 of the Telangana Eunuchs Act, 1329 Fasli, it is contended that fundamental right is not absolute. It is subject to reasonable restriction in the collective interest of the society. It is asserted that the said Act is enacted in the interest of public order and to identify transgenders indulging in such acts. There is no discrimination shown against the transgenders in the Act. In the circumstances, respondent No.2 seeks dismissal of the public interest litigation.

22. Elaborate submissions have been made by learned counsel for the parties highlighting the plight of persons belonging to the transgender community and the need for inclusivity on the basis of constitutional principles.

Submissions made have been duly considered.

23. In NALSA (supra), Supreme Court was examining the grievance of the members of the transgender community seeking a legal declaration of their gender identity than the one assigned to them i.e. male or female at the time of birth. Ventilating such grievances, National Legal Services Authority moved the Supreme Court contending that non- recognition of the identity of persons belonging to the transgender community violates Articles 14 and 21 of the Constitution. Hijras and eunuchs falling within the transgender community claimed legal status as a third gender with all legal and constitutional protection. In the said judgment, Supreme Court observed that transgender is generally described as an umbrella term for persons whose gender identity/gender expression or behaviour do not conform to their biological sex. Transgender may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs. Hijras are not men by virtue of anatomical appearance and psychologically, they are also not women; though they are like women they have no female reproductive organ and no menstruation. Since hijras do not have reproductive capacities as either men or women, they are neither men nor women and claim to be third gender. Among hijras, there are emasculated men, non-emasculated men and inter-sexed persons i.e. hermaphrodites. Transgender also includes persons who intend to undergo Sex Reassignment Surgery (SRS) or have undergone Sex Reassignment Surgery to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Resultantly, the term 'transgender' in contemporary usage has become an umbrella term that is used to describe a wide range of identities and experiences including but not limited to pre-operative, post-operative and non-operative transsexual people who strongly identify with the gender opposite to their biological sex: male and female. 23.1. After tracing the history of transgenders in the world and in India, Supreme Court acknowledged that transgender people, as a whole, face multiple forms of oppression in this country. Discrimination is writ large and pronounced, especially in the field of healthcare, employment, education, not to speak of social exclusion. Supreme Court referred to the report submitted by United Nations Development Programme - India, 2010 which highlighted the extreme necessity of taking emergent steps to improve the sexual and mental health of transgenders and also to address the issue of social exclusion. It was noted that social exclusion and discrimination on the ground of gender stating that one does not conform to the binary gender i.e. male or female, strongly prevail in India. Supreme Court observed that many of them experience violence and discrimination because of their sexual orientation or gender identity.

42.4. Section 5 provides that any registered eunuch who has with him or in his house or under his control a boy of less than sixteen years of age shall be punished with imprisonment for a term which may extend to two years or with fine or with both. In such an event, the District Magistrate has been empowered to direct that such a boy be delivered to his parents or guardian, if they can be discovered and if they are not eunuchs; if they cannot be discovered or the parents or guardian are eunuchs, the Magistrate may make such arrangement as he thinks necessary for the maintenance, education of such boy and may direct that the whole or any part of a fine inflicted under Section 5 may be applied for such arrangement. 42.5. Section 7 provides for penalty for emasculation or abetting thereof. It says that any person who emasculates himself or any other person with or without his consent or abets in emasculation shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.