Hereditary Criminality
This judgment decided the fate of the Telangana Eunuchs Act, 1329 Fasli[1], a shocking vestige of the Criminal Tribes Act (CTA) era, which I believed had been relegated to the history books.[2] Contrary to appearance, the Telangana Act was not a new Act, legislated after the creation of the State of Telangana in 2014 but a piece of colonial legislation inherited at independence. The Act’s purpose was to register and control eunuchs, in line with the thinking of its parental source that certain tribes were addicted to the commission of habitual offences. The logic was that in caste-ridden India people had been pursuing hereditary professions since time immemorial, weaving, carpentry etc. Naturally, there must be hereditary criminals too.
Selecting Visible Targets
While crime and strife were present everywhere, according to Dilip D’ Souza focusing on select, visible targets was part of the law and order strategy of the British administrators; the only way to give an appearance of providing public peace and thereby justifying their presence in what they were discovering to be a mindbogglingly ungovernable colony. Accordingly, the CTA was enacted and transgender women, particularly Hijras, referred to in the derogatory ‘eunuch’, were included within its ambit in 1897. The British considered eunuchs to be a threat to their authority, ‘professional sodomites’, whose bodily difference presented a social category of non-men who were not only hard to classify but also made the Victorian bureaucrat deeply uncomfortable.
Impotence, or All that is Unmanly.
The impugned Act, a mirror-image of the CTA, sought to maintain a register of local eunuchs defined as an impotent male or a man who ‘clearly appears to be impotent on medical inspection.’ Jessica Hinchy’s work is informative here for drawing attention to the fact that impotence was central to the British criticism of Indian society. Impotence according to this narrative resulted from debauched Indian rulers and oversexed Indian men and placed them severely in need of reform (through British rule). It represented all that was unmanly and by the late 19th century when the CTA was enacted, increasingly associated with effeminacy and homosexuality. The transgender woman was the most obvious target of these impotence laws although history will show us that in native traditions ‘impotence’ was as much a marker authenticity of the transgender as a biological condition. One need only look at Zenanas, Bhaguttuahs and Sakhis, who were outwardly indistinguishable from Hijras and even performed similarly professional activities like singing and dancing at festivities, but had wives and families. However, armed with incomplete colonial knowledge, questionable classification, and a strict moral code, the colonizer deemed the eunuch a heady mix of sexual deviance, impotence, criminality, and transgression of maleness. The eunuch needed reform. Accordingly, the Telangana Act stipulated that if said eunuchs were discovered in female dress or ornamented in a public place or most draconically, in ‘any place with the intention of being seen from a street or public place’, played music or took part in public entertainment, they could be arrested without warrant and punished with imprisonment of up to two years.
Perverse Sexual Teachers
Furthermore, these ‘habitual sodomites’ were assumed to possess a specific criminality which involved kidnapping boys, castrating them, and putting them through a perverse sexual education which taught them to ape feminine habits. A cross dressing eunuch giving public performances could then be reasonably suspected to be just this kind of perserve teacher making prostitutes-in-waiting of young boys. Accordingly, there was a special effort to save boys from the grasp of the criminal eunuchs who could be sent to prison if they had with them a boy under sixteen. Such boys, if discovered with eunuchs, were to be delivered immediately back to their parents unless of course the parents turned out to be eunuchs too (alas, the fleeting curse of impotence) in which case the District Magistrate was charged was to save the boy from any guardianship whatsoever and make alternative arrangements for his education and maintenance.
The final section of this short Act criminalised emasculation, whether of oneself or of another without consent. This dramatic and overarching section, which provides no definition of emasculation came with a seven-year prison sentence for offenders. Interestingly, the reader will recall that this anxiety about the loss of male sexuality was articulated through other enactments of this time too, most notably the Indian Penal Code of 1860 with its famous S377.
Striking Down of the Telangana Act
While the Criminal Tribes Act was repealed in 1952, this evil off spring continued to exist in Andhra Pradesh and Telangana. With this challenge and aided by the pronouncements in NALSA, Puttaswamy and Navtej, the Telangana Act has been held to unconstitutional, an anathema to Indian constitutional philosophy, manifestly arbitrary for criminalising an entire community, and an unwarranted intrusion into the private sphere and an assault on dignity.
[1] A harvest-based calendar system introduced during the Mughal times and still in operation in Hyderabad.
[2] The court also passed important directions about including transgender in the State pension scheme (Aasara) and requiring the government to provide reservations for the community in educational institutions and government services, but the blog will not focus on those.