In the wake of several positive developments for transgender communities in Karnataka came 36A, a startling amendment to the state Police Act aimed at controlling the ‘objectionable activities’ of ‘eunuchs’. The new rule relegates hijras to second-class citizens, vulnerable to police harassment and surveillance
In April 2011, the Karnataka government legislated an amendment to the state Police Act, introducing Section 36A. The section is aimed at controlling the ‘objectionable activities’ of eunuchs. Under it, the police must record the names of ‘eunuchs’ in their jurisdiction suspected of kidnapping boys, committing ‘unnatural offences’ or any such crimes in a register.
There are multiple problems with this law, starting with the term ‘eunuch’ (napumsaka,in Kannada). ‘Eunuch’ is a term used by the British to refer to castrated males. The movement for transgender rights in India has attempted to relegate this word to the past. Identity-based politics have introduced terms like ‘hijra’, ‘aravani’, and ‘mangalamukhi’ that have been reclaimed and sometimes created afresh by transgender communities in the country. The reason the term ‘eunuch’ features in this law is the direct link between Section 36A and provisions in the Hyderabad Eunuchs Act, which, in turn, is based on the Criminal Tribes Act Amendment of 1871. The British, in 1871, included ‘eunuchs’ among other tribes, castes and social groups considered criminal at birth. Nehru, whose government repealed this law in 1952, referred to it as “a blot on the law book of free India”.
Understandably, members of the hijra community are outraged by the enactment of Section 36A, which, they feel, will exacerbate the harassment and violence they face at the hands of the police. While there is no evidence yet of the police invoking the amended law, the section will enable them to invoke these provisions. The very presence of the law in the statute books relegates hijras to second-class citizens, vulnerable to police harassment and surveillance. In Karnataka, LGBT-rights-based (lesbian, gay, bisexual, transgender) groups have for many years fought police harassment of hijras through protests and public action, and through the courtroom. Hijras remain the target of a number of laws, with charges ranging from public nuisance and theft to sex work and begging. Many cases that have been contested in court have resulted in acquittals, although the police officers who file the charges are rarely rebuked, punished or demoted for their actions.
A lot of problem lies with the discretion a policeman has in targeting street-based work done by hijras -- sex work and begging. This is further complicated by public attitudes towards hijras. In Bangalore there has been intense public and media debate on the ‘harassment’ faced by the public from hijras, especially at traffic junctions. The hijra community has responded saying that an entire community cannot be targeted because of a few stray incidents. They have put the onus on society, saying that without job opportunities and attempts at allowing hijras to participate in the mainstream society, should not point fingers at them.
It is against this backdrop that K R Chamayya, former law secretary and former vice-chairman of the Karnataka Administrative Tribunal recommended that Section 36A be introduced in the Police Act. The law was passed without debate in April 2011, ironically as part of an omnibus provision that repealed hundreds of archaic laws that had remained in the statute books. Of the few laws that the government decided to retain, one was this ‘monstrous’ section.
What puzzled LGBT activists and those working with the issue of transgender rights in Karnataka is that this section came in the wake of a number of positive developments for transgender communities in the state. The Karnataka government, through the Department of Women and Child Development, in 2010, issued a government order securing benefits for the transgender community which is now included in the 2A category of the Backward Class Commission. The government order also referred to providing housing facilities and opportunities for transgenders to avail of government loans. The order covered a wide range of ‘gender minorities’ including hijras, kothis (1), jogappas (2), female-to-male and male-to-female transsexuals (3), and mangalamukhis.
Following a petition filed by the Karnataka Sexual Minorities Forum, the Backward Classes Commission headed by Chairperson C S Dwarkanath, organised a public hearing on sexual minorities issues in its premises -- a first for any body of its stature in India. The commission heard around 20 members of sexual minorities present a case for their community to be included in the list of backward classes in Karnataka. In July, the commission in its recommendation to the state government suggested that sexual minorities, sex workers and children of people living with HIV/AIDS be included in Category 2A of the backward classes list to ensure up to 15% reservation for these communities. Further, the government has allocated money for the transgender community in this year’s budget.
Political leaders from the three main parties -- the BJP, Congress and Janata Dal (S) -- spoke out publicly in favour of these measures. The Karnataka Legal Services Authority in 2011 organised a programme on ‘Transgenders and the Law’ which was attended by a number of high court and trial court judges. Interestingly, the chief guest and head of the National Legal Services Authority (NALSA), Justice Altamas Kabir, explained that he had suggested that a Bill related to adoption rights for religious minorities be amended to include adoption rights for transgender persons too.
Amidst this wave of positive legal and policy changes, the enactment of Section 36A has come as a rude shock, overshadowing other individual gains made by transgender persons. Both the state government and the Karnataka High Court recently appointed transgender persons as employees in the Class D category, and prominent members of the ruling BJP party have publicly espoused the rights of transgender persons in the state.
With reports of increasing police harassment and a climate of fear amongst the hijra community, the repeal of Section 36A has become a common demand for a range of organisations working with the issue. Legal experts have pointed out that the section’s use of the language ‘unnatural offences’ flies in the face of the Delhi High Court’s decision in the Naz Foundation case which held that consensual sex between adults in private, whatever form it takes, is no longer criminal.
While advocacy and community groups are demanding that Section 36A be repealed, one option is for activists to take the issue to court. However, any courtroom challenge has to go hand-in-hand with advocacy efforts, especially with the media and with public intellectuals and the larger human rights community. Public attitudes towards the hijra community have always been at best ambivalent, and at worst hostile. On the positive side, hijras can claim indigenous roots and do not have to fight the tag of being a ‘western import’. Their street-based work and gender non-conformity gives them a presence that is disproportionate to their small numbers.
There have been two public events on this issue, one in July 2011 and the other in August 2012, demanding the repeal of Section 36A. Both the events were attended by a large number of hijras, many of whom were vocal about the demand to scrap this law. One of the discussions at the events was how a numerically small community can advocate for rights and be taken seriously. With the media divided on this issue, and limited public support, the way ahead is tricky. A possibility suggested was alternative political formations or strategic voting, which of course depends on the community getting voter ID cards, which is a slow process because of the lack of identity documents.
While on the face of it the BJP government may seem sympathetic to these demands, it has not yet taken concrete measures to repeal the law. In Karnataka, more than a decade of positive intervention on this issue by NGOs is now making way for intervention efforts by the state. Section 36A threatens to derail these gains by re-inscribing discrimination and transphobia. It is crucial that there be a sustained effort to oppose this law through efforts that will bring together community members, NGOs and the larger umbrella of human rights organisations.
(Siddharth Narrain is a legal researcher with the Alternative Law Forum, Bangalore. His areas of work include media laws and censorship, sexuality and gender law, and the politics of the judiciary)
1 ‘Kothi’ refers to effeminate men, usually working class, who assume a receptive role during sexual intercourse
2 ‘Jogappas’ are found in north Karnataka and Andhra Pradesh and are traditionally devotees of the Goddess Yellamma. They are sometimes compared to devadasis
3 A transsexual person is one who has undergone or is in the process of undergoing physical or hormonal alterations by surgery or therapy in order to assume new physical gender characteristics. In India many transsexuals, especially in the female-to-male transsexual (FTM) community, faced with the exorbitant cost of surgery, do not undergo surgery but dress as men and identify as transsexuals
Infochange News & Features, March 2013