"Violative of Human Rights, Intrusion Into Private Sphere, Assault On Dignity"- Telangana HC Strikes Down Telangana Eunuchs Act As Unconstitutional

A Telangana High Court Bench of Chief Justice Ujjal Bhuyan and Justice Bhaskar Reddy has held that the Telangana Eunuchs Act is ultra vires to the Constitution of India, and has struck it down. 

In that context, the Court said that "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. Such an enactment can no longer continue to find a place in our statute book. It is accordingly declared as unconstitutional." 

Senior Counsel Jayna Kothari appeared for the petitioners, while Special Government Pleader Andapalli Sanjeev Kumar appeared for the respondents.

In this case, the Court heard a Public Interest Litigation and two related petitions challenging the Telangana Eunuchs Act. The Act grouped certain tribes declared as criminal tribes and eunuchs under a single classification. The Act proceeded on the assumption that eunuchs as a class were criminals. 

The pleas sought reservations to transgender persons in educational institutions and public employment and payment of three months' social security pension.

The petitioners contended that the Act was an outdated legislation and is a complete anachronism with modern-day life and thinking. They questioned the vires of the Act on the ground that it targeted the transgender community and treated them as a distinct class with no reasonable basis for such classification, besides permitting discrimination against persons based on their sexual orientation and gender, thus violating Articles 14 and 15(1) of the Constitution. 

It was further contended that the Act imposed arbitrary restrictions on the freedom of speech and expression of the transgender community and also breached their fundamental right to privacy, thereby rendering it violative of Articles 19(1) and 21 of the Constitution.

It was also argued that the legislation was against the letter and spirit of the Supreme Court decision in National Legal Services Authority (NALSA) v. Union of India, which declared that eunuchs were the third gender, and directed the Government to treat them as socially and educationally backward classes of citizens. The petitioners also relied on the ruling passed in KS Puttaswamy vs Union of India to emphasize on the right to privacy.

The Court analyzed a catena of judgments, including the ones passed in NALSA, Suresh Kumar Koushal v. Naz Foundation and Navtej Singh Johar v. Union of India, to subsequently observe that "Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that sexual orientation of each individual in society must be protected on an even platform. The 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. Supreme Court also elaborated that sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination." 

The Court also observed that constitutional morality will impact upon any law which deprives LGBT individuals of their entitlement to a full and equal citizenship. In that vein, it was further said that "members of the LGBT community including transgenders are entitled as all other citizens are to the full range of constitutional rights including the liberties protected by the Constitution. They are entitled to the benefit of equal citizenship without discrimination and to the equal protection of law."

Examining the pertinent legal provisions and the progressive steps taken by the authorities, the Court said that "While we appreciate constitution of the State Welfare Board and drawing up of action plan, what is required is that the State Welfare Board should take pro-active steps for betterment of the transgender population and to ensure implementation not only of the action plan but also the provisions of the Transgender Persons Act and the Transgender Persons Rules. We also feel that having regard to the mandate of the Legal Services Authority Act, 1987, the State should also involve the legal services authorities while implementing various provisions of the Transgender Persons Act and the Transgender Persons Rules as well as the action plan. Involvement of legal services authorities to implement the aforesaid provisions would go a long way in providing access to justice for the transgender persons."

In light of the same, the Court directed that until 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.

The Court also noted that the transgender community is one of the most deprived, neglected and discriminated against communities in the State and in the country, and that they have been held to be belonging to socially and economically backward class. In light of the same, the Court observed that they fulfilled the eligibility requirement under the Aasara Pension Scheme.

Subsequently, the Court analysed the validity of the Act, and observed that "Following the law laid down by the Supreme Court in NALSA (supra) and in subsequent judgments in Puttaswamy (supra) and Navtej Singh Johar (supra), there can be no iota of doubt that such an enactment is anathema to our constitutional philosophy as explained by the Supreme Court in the above judgments. This is not only arbitrary and unreasonable but is also manifestly arbitrary in as much as it criminalises the entire community of eunuchs."

It was found that the provisions of the Act were ultra vires to the provisions of the Indian Constitution, and in that regard, the Court directed that "till the Telangana Legislative Assembly enacts any law providing for such reservation, State of Telangana may issue necessary Government orders/administrative instructions providing for such reservation to persons belonging to transgender community in respect of admission to educational institutions and in recruitment to public services." 

Cause Title: V. Vasanta Mogli v. The State of Telangana

Click here to read/download the Judgment