Facts:
The Petitioner challenged the constitutionality of the Telangana Eunuchs Act, 1329
Fasli, a 1919 legislation that mandated maintenance of a register of “eunuchs” as they
are “suspected of kidnapping or emasculating boys or of committing unnatural
offences or abetting the same” and also permitted the arrest of transgender persons
without a warrant and made it a criminal offence for a transgender person to be found
in female clothing in a public place.
Court Decision and Reasoning:
The Court held that the provisions of the Telangana Eunuchs Act, 1329 Fasli were
identical to the provisions of the Criminal Tribes Act, 1871 which was repealed in 1952.
Under the Criminal Tribes Act, 1871 people were declared as criminal tribes and were
put under continuous surveillance. Following the decisions of the Supreme Court in
NALSA, Puttaswamy and Navtej Singh Johar, the Court found the Telangana
Eunuchs Act was completely contrary to constitutional philosophy and was manifestly
arbitrary as it criminalised the entire transgender community. The law was held to be
violative of the human rights of the transgender community and an intrusion into their
private sphere and their dignity. The Court held that the law was violative of Article 14
and Article 21 of the Constitution and declared it as unconstitutional. The Court also
observed that despite the directions given in NALSA, no reservation has been
provided to the transgender community for admission to educational institutions and
for recruitment to public services. It held that until the Telangana Legislative Assembly
enacts such a law, the State of Telangana should issue necessary government
orders/administrative instructions providing for reservation to transgender persons. In
a connected petition seeking coverage of transgender persons under the Aasara
Pension Scheme, the Court held that transgender persons were one of the most
deprived and neglected communities in the State and if widows, disabled persons,
beedi workers, single women and persons living with HIV were entitled coverage
under the Aasara Pension Scheme, transgender persons could not be excluded. The
Court accordingly directed the government to ensure transgender persons should be
covered under the Aasara Pension Scheme.
Significance:
This judgement is significant in declaring the Telangana Eunuchs Act as being
unconstitutional. It is also significant because the Court directed the state to provide
reservations for transgender persons in education institutions and public employment,
in addition to providing pension benefits.