What is the issue?
- 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.
Source: The Hindu
