Transgenders’ Rights and Anarchic laws

CONTEXT

In the light of the recent privacy judgment, The Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 F, an enactment “for the registration and control of eunuchs”,  has come under scrutiny once again as it violates every principle of natural justice.

THE ANDHRA PRADESH (TELANGANA AREA) EUNUCHS ACT, 1329 F

• The Eunuchs Act, enacted in the Nizam’s dominions, has been in force since 1919 explicitly to control “eunuchs”, that is, people who were both “males in female dress”andthose who had undergone “emasculation”.
• Section 1(A) of this Act states, “A eunuch shall for the purpose of this Act include all persons of the male sex who admit to be impotent or who clearly appear impotent on medical inspection.”
• Section 2 provides for the maintenance of a register by the government that will contain “the names and place of residence of all eunuchs residing in the City of Hyderabad or at any other place… and who are reasonably suspected of kidnapping or emasculating boys, or of committing unnatural offences or abetting the commission of the said offences…” It is reasonable to presume that the definition of unnatural offences comes from Section 377 of the Indian Penal Code.
• Section 4 of the Act, “Registered eunuch found in female clothes”, reads: “Every registered eunuch found in female dress or ornamented in a street or a public place or in any other place with the intention of being seen from a street or public place or who dances or plays music or takes part in any public entertainment in a street or a public place may be arrested without warrant and shall be punished with imprisonment for a term which may extend to two years or with fine or both.”
• Section 5 provides for the punishment of a eunuch with imprisonment if it is found that he “has with him or in his house under his control” a boy who is less than 16 years old. There is no exception made for the possibility that this boy may be a biological or adoptive child of the said person

SUPREME COURT’S RULINGS SO FAR REGARDING THE TRANSGENDERS RIGHTS

The 2009 Delhi High Court judgment on the constitutionality of Section 377 ( Naz Foundation v. Government Of Nct Of Delhi ) applied the United Nations human rights framework to an understanding of sexual orientation and gender identity, setting out three categories of protection: non-discrimination; protection of private rights; and ensuring special general human rights protection to all, regardless of sexual orientation or gender identity. The constitutional reasoning of this decision is immediately relevant to the Eunuchs Act.

The judgment was struck down by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013)..  The reasoning in KoushalJjudgement was that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted.

Section 377

• Chapter XVI, Section 377 of the Indian Penal Code dating back to 1860,[1] introduced during the British rule of India, criminalises sexual activities “against the order of nature”, arguably including homosexual sexual activities.
• The section was decriminalized with respect to sex between consenting adults by the High Court of Delhi on July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013 with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
• On 6 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the Supreme Court. The three-member bench headed by then the Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.

FUNDAMENTAL RIGHTS VS SECTION 377

Article 14( Equality before law) The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 of Constitution of India deals with Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

From the Constitution

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

Article 21 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

RIGHT TO PRIVACY JUDGEMENT

The Supreme Court said that right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

The court noted that sexual orientation is an essential attribute of privacy, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.

• “That a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders is not a sustainable basis to deny the right to privacy,” the Supreme Court said in its judgment.
• “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular,” the nine-judge bench observed.

The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”, the court observed.

WHAT THE TWO-JUDGE BENCH OF SUPREME COURT HAD SAID IN 2013:

• The Division Bench of the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
• In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature.

WAY FORWARD

• There is widespread evidence that the existence of the Eunuchs Act has resulted in a pervasive and continuing practice of criminalisation, illegal detention, torture in custody, and extreme coercion, which includes a perennial threat of arrest.
• It is also a fact that transgender persons are routinely subjected to sexual assault and sexual violence but fear registering FIRs because of the stigmatisation and vulnerability consequent on this draconian legislation, which shapes the attitudes and conduct of law enforcement officers.
• The Eunuchs Act has a chilling effect on the assertion of the right to privacy, dignity, and freedom by transgender persons.

The Supreme Court has opened up a definitive space in constitutional interpretation that makes the declaration of unconstitutionality of this law by the High Court of Judicature at Hyderabad urgent.