With the recent judgement on Right to Privacy, attention is now drawn to an associated area of rights to individual choices.
A scrutiny into the age old Andhra Pradesh (Telangana Area) Eunuchs Act becomes important in this context.
What is the Eunuchs Act?
'Eunuchs' refers to persons who are “males in female dress”.
They are 'not transgenders' as such but are males who have undergone castration.
The Eunuchs Act, enacted in the Nizam’s dominions, has been in force since 1919.
This was explicitly an enactment for the registration and control of eunuchs in the notified areas in Andhra Pradesh (now Telangana).
The provisions of the Act include:
The Government shall cause a register to be kept of the names and place of residence of all eunuchs.
It applies to those who are reasonably suspected of kidnapping or emasculating boys, or of committing 'unnatural offences' or backing the commission of the said offences.
Any registered eunuch may be arrested without warrant if found in a street or public place with the intention of being watched or involved in any public entertainment in such places.
A penalty would fall on a registered eunuch if a boy under sixteen is found with him.
The mention of 'unnatural offences' could reasonably be presumed to have come from Section 377 of the IPC that criminalises homosexuality.
Also, the provisions make no exception for the possibility that a boy with a eunuch may be a biological or adoptive child.
It thus explicitly bars eunuchs from the right to relationship, family, child custody and parental autonomy.
What are the notable precedents in this regard?
Constitution - Article 15 lists “sex” as a ground of non-discrimination.
Notably, the constitutional category of “sex” has not been defined as restricted to male and female alone.
It could be constructively interpreted to offer protection to all persons of all genders including the eunuchs or transgender persons.
Court Judgements - A 2009 Delhi High Court judgment upheld non-discrimination and protection of human rights of all, regardless of sexual orientation or gender identity.
Markedly, the recent privacy Bench also stressed on the fundamental rights of the transgender community.
It held sexual orientation as an essential component of identity and thus equal protection demands protection of the individual identity.
Also, a National Legal Services Authority (NALSA) observation relates Article 15 and Article 21, and holds constitutional right to privacy as an expression of individual autonomy, dignity and identity.
All these judgements and observations firmly uphold the individual right and also question the validity of Section 377 on homosexuality.
What lies ahead?
Despite transgender and eunuchs being subjected to sexual assault and sexual violence, legal recourse to them is ineffective due to social stigmatisation and vulnerability.
The core of Right to Privacy judgement is the idea of "privacy of choice" which protects an individual’s autonomy over personal choices.
The judgement should rightly be utilised to assess the constitutionality of various age old legislations like the Eunuchs Act to uphold the principle of natural justice.
