“It is time that we all see gender as a spectrum instead of two sets of opposing ideals.” ~ Emma Watson.
We all have been talking about equality for a long time. Equality means a state where rights, status, opportunity are given to everyone every where irrespective of their caste, creed, colour or gender. In the Constitution of India Equality has been declared as a fundamental right. The most debated topic under equality and inequality is the gender equality. Towards the middle of the twentieth century a strong movement of feminism arose in the country asking the legislation to empower the women of the country. Amendments were made, awareness was spread and today we live in a gender-neutral society. ‘Gender-Neutrality’ being an adjective, states that irrespective of a person’s gender both men and women will be treated equally under the law. India has its criminal code that defines crime, offences in order to maintain the smooth functioning of the country, gender is defined in Indian Penal Code,1860 also under section 8.
Historical Growth
Ancient Time:
In an ancient Hindu literature called ‘Kama Shastra’, a reference of ‘triyaprakrati’ has been made. These are the people who disobeys the common gender norms of the society. ‘Triyaprakrati’ are known as third-gender or transgender or cisgender, this community also consists of eunuchs, Aravanis, Jogappas, Shiv-Shakti, Hijras etc, as it is like an umbrella. The text from vedic literature signifies the existence of the third gender in our society from ages.
Medieval Period:
In the medieval India during the rule of Mughals eunuchs are seen to have great importance. Few well serving position like political advisors, administrators, generals, or guardians of harams were secured by them. They were having an overpowering and strong personality in that era; they were considered to be very loyal and had a high social acceptance from all.
British Rule:
A drastic change was seen in the community after the beginning of colonial rule in India. A baffled reaction was received from the European travellers who visited the country. They were disgusted by the mere sight of the eunuchs and looking at their social status and the respect they received from the royal courts, British colonial administration decided to criminalize the community. The governor general of British India, being highest authority, passed the first Criminal Tribes Act (CTA) in 1871, which focused on eunuchs. In the second half of the 19th century, they were denied having any civil rights and were considered as a separate caste and tribe in the country.
Contemporary Period:
With the developing environment the thinking has also been developed. At present in India the government has given equal recognition to the third gender. Peaceful movements of LGBTQ community can be seen all over the country, they try to break the taboo among the people. The government has been making welfare schemes like the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), which was a major initiative taken by the government in the 11th five-year plan which brought the job opportunities for the transgender community. Legal measures are taken, reform policies are made, constitutional safeguard has been done to prevent human right violation against the transgender community.
Criminalization of the Tribe
Beginning in Bombay in the 1830s and moving on to northern India during the 1850s and 1960s, the Hijra community came to the attention of several provincial administrations in British India towards the middle of the 19th century. The colonial authorities began to worry about the Hijra group throughout the 1860s as it grew in size as a result of the 1857 uprising. Due to their ignorance of Indian civilization, they also worried and believed the Hijra community to be a group of criminals, abnormal people, or marginalised people. In British India, homosexuality was illegal. The Hijra community was viewed as truly being ungovernable in a variety of different, varied ways. The Hijra society was initially described as embodying sexual dysfunction and as “habitual sodomites” (a word that ignored Hijras’ feminine gender identities and depicted them as “men” who were “addicted” to sexual intercourse with males) as well as being prostitutes. Another myth that is related to this one is that some discipleship-based communities, like the Hijra community, are viewed as representing a particular form of sexuality. On the other hand, tantric and devadasi communities were seen negatively as well. In addition to this, Hijra’s gender expression was viewed as problematic due to the ways in which it goes against a binary definition of gender. Due to colonial fears, hijra performances and badhai practises are frequently characterised to as “begging,” which causes people to perceive them as “obscene” and even “unclean” in public settings. The Hijra community is depicted in this colonial discourse as the kidnappers, castrators, and even pimps for male allocated children, which is another significant component of the discourse. This conversation is quite unsettling. The prosecution of the Hijra group is presented as a child-saving strategy, though.
The British enacted numerous rules to categorise and treat Indians differently depending on their caste and religious affiliation. One of these laws is known as the Criminal Tribes Act (or CT Act/CTA). During their colonial reign, the British enacted three Criminal Tribes’ Acts. Which were:
- Criminal Tribes Act, 1871
- Criminal Tribes Act, 1911
- Criminal Tribes Act, 1924
In a letter to the inspector general of police in 1865, the secretary to the North-Western Provinces (NWP) stated that the government sought to prevent the population of hijras/eunuchs from growing since doing so would eventually cause them to go extinct. By prohibiting initiations, castrations (since the British mistakenly believed castration to be a requirement for Hijra-hood), and by rendering Hijras invisible in public places, the CT Act of 1871 sought to eradicate eunuchs. These laws were passed by the British government for a number of reasons.
Wandering people were eyed suspiciously by those in command of the British authority. Additionally, the British administration was vehemently opposed to pastoralists, travelling craftsmen and dealers (who peddled their wares in neighbourhoods), and both (who had to move from one place to another in search of fresh pastures for their cattle). The Criminal Tribes Act, 1871 was therefore created by the government to put an end to these actions, and it categorised numerous tribal communities in India as Criminal Tribes. The Act’s primary objective was to control and supervise pastoral personnel. In order to prevent them from leaving their registered settlements without permission, it is necessary to compel these pastoral people to do so. They had fewer options for grazing as a result, and their stock animals suffered. The Criminal Tribes Act was put into effect in an effort by the government to control a settled populace. Due to the fact that it was relatively simple to manage and identify such a population, the government desired that the rural population reside in villages, in defined locations, with established rights on specified fields. A compelling case was made that it was a component of a larger scheme to maintain law and order in colonial India. The British, who were accustomed to a highly centralised society, saw India as a volatile place because of its intricate web of castes and communities, each of which operated as independent, self-governing entities and adhered to a different set of customs and social mores. The communities that had resisted Pax-Britannica the most were given such preferential treatment in various ways. Communities that did not lead sedentary lifestyles suffered the most because it was more difficult to enforce subservience on them. The Habitual Offenders Act was introduced by the Indian government in 1952 to replace the Criminal Tribes Act. This law’s adoption resulted in the denotification of the previous Criminal Tribes Act. Most of these tribes are referred to be “vimukta jatis” or “ex-criminal tribes” in modern society.
Unfair situations faced by Transgender.
The Criminal Tribes Act has a number of restrictions that were unfair to the transgender population as a whole. The Criminal Tribes Act of 1871 mandated that the police register all “eunuchs” who were ‘reasonably suspected of sodomy, kidnapping, castration, or committing felonies under Section 377 of the Indian Penal Code, 1860′, along with their names and addresses. In Queen Empress v. Khairati (1884), for instance, a transgender person was detained and charged under Section 377 on the grounds that they had converted into a “habitual sodomite.” On appeal, an acquittal was granted in this instance. These actions carried a maximum two-year prison sentence, a fine, or both. This pre-partition past has an impact on hijra’s precarious conditions in the modern world. Furthermore, if a transgender person was discovered with a boy under the age of 16, Section 27 of the Criminal Tribes Act allowed for their arrest without a warrant and their imprisonment. As a result, the stereotype of hijras as perverted, abnormal, and criminal is reinforced. According to Section 3 of the Criminal Tribes Act, any group of people who were addicted to the routine committing of crimes not subject to bail could be designated as a criminal tribe. Every member of the Criminal Tribes Act who had registered was required to report to the police or the village government in whose neighbourhood they happened to be at the time, whichever came first, once a week or whenever the District Magistrate deemed it necessary to do so. These people’s privacy and freedom of movement were severely curtailed as a result.
Under colonial legislation, transgender people were denied both their main source of income and any type of rights. This further contributed to their social marginalisation and poverty. In reality, it is estimated that 100 million people are currently living under the influence of the Criminal Tribes Act. The mere act of wearing women’s clothing or acting in public made transgender persons suspects. It had a significant impact on the daily life of Hijras. Even though none of the group’s members were criminals, this act was nevertheless passed, and as a result, it has been denounced. It is unjust for the government to categorise a group as criminal just because a few members were engaged in criminal conduct, even if it is undeniable that some criminals were present in every group. The government shouldn’t have accused a group of illegal activity because a small number of its members were involved. Additionally, the policy’s harshness is shown by the harsh imprisonment and flogging that are used as penalties for violating the monitoring requirements. Even though none of the group’s members were criminals, this act was nevertheless passed, and as a result, it has been denounced. It is unjust for the government to categorise a group as criminal just because a few members were engaged in criminal conduct, even if it is undeniable that some criminals were present in every group. The government shouldn’t have accused a group of illegal activity because a small number of its members were involved. Additionally, the policy’s harshness is shown by the harsh imprisonment and flogging that are used as penalties for violating the monitoring requirements. Even worse than the policy’s terrible intentions was how it was carried out. In reality, the individuals tasked with keeping an eye on these tribes took advantage of them. Several transgender persons reportedly protested to the district government in Ghazipur in 1874 that they were malnourished. The tribal people were also unable to live according to their traditional ways of life due to the forced settlement of the tribes, which frequently occurred in new locations and frequently on the outskirts of towns and villages. Due to their lack of employment options and subsequent need for work, possibilities to take advantage of them increased. Some of the village chiefs would beat or steal from their competitors while using tribe members. Furthermore, because they easily fit the stereotype of the tribe as “criminals” and “thugs,” the leaders/heads of these communities attacked the transgender group. In other cases, the newly established tribes were made to work as manual scavengers and forced to clean the dwellings of the upper caste. They were located at the 10 social and geographical edges of society. There have been other instances where low-level police personnel have distributed their booty among recently settled tribes. They were taken advantage of when they required travel passes. Similar to this, railroad firms enslaved the recently settled “criminal tribes.”
Transgender Protection Act, 2019
In 2014 in a ruling in the case of NALSA v. UOI, the Supreme Court of India recognised the rights of transgender people in India, laid out a number of measures to combat discrimination, suggested developing welfare policies, recommended creating reservations in educational institutions and jobs, and other things. The ruling recognised a transgender person’s right to self-identity and held that this right is protected by the Indian Constitution. The transgender community’s hijra, kinnars, and jogtas were also mentioned in the ruling. Tiruchi Siva, a DMK party member, introduced a private member’s bill in the Rajya Sabha in response to the ruling. The Rights of Transgender Persons Bill, 2014 was the name of the legislation (Bill No. 49 of 2014).
The Rajya Sabha voted to pass this bill. Activists for the queer right in India also praised it. The government’s own version of the 2014 Bill included some significant revisions. Many activists and transgender people condemned it vehemently since it broke the NALSA Judgement. In September 2016, a permanent committee was then advised to take action. In 2017 a report was delivered by the standing committee.
In December 2018, the Lok Sabha approved the Bill after 27 revisions. The bill was divisive and received a lot of criticism. It criminalised begging and disregarded the standing committee’s advice. Due to the 2019 general elections, it expired and could not be approved by the Rajya Sabha.
In July, the bill was reintroduced, and it was approved in August. Thaavarchand Gehlot, the minister of social justice, introduced it in both Houses. Despite strong opposition from the transgender community, the measure was approved by the Rajya Sabha on November 25.
For the purpose of defining some terminology used in the 2019 Act, the Transgender Person (Protection of Rules) 2020 was introduced. In April and August of 2020, the draught Rules were published, and on September 25th, the government notified the Rules. In conclusion, the journey of transgender people has always been a challenging one and has never been easy. They are struggling and fighting to make their own way in this society. Although as compared to earlier, there has been some improvements in the mindset of the people in society but still there is a long distance to cover. Government is also working towards promoting awareness about them and their rights through the 2019 Act. However, there are a lot of loopholes present in the Act which needs to be corrected to help the community thrive and feel protected. The provisions given in the Act are not enough for the people and acts as a great source of disappointment. The Transgender Persons (Protection of Rights) Rules 2020 has also not been helpful as it was only provided to justify the Act of 2019. Since during the time of the Rules, the suggestions of the people were taken so naturally, the community has expectations from the government yet the present Rules serve as a great source of discontent yet again. The struggle doesn’t stop here as there are still a lot of changes which needs to be implemented in the Act. It is hoped that the government will try its best to provide the community with a society where they can feel safe and empowered. The most important thing for the people along with the Act and lawfulness is to be acceptance and respect in the society. For this, society needs to change its perspective and accept them as normal human beings.
