The Third sex – An overview
The words “hijra”, “khusra” or “khwajasara” make us have goosebumps, we ridicule them, crack disgusting jokes questioning there sexual identity. We never realizing what are those poor creatures facing, a crises that excommunicates them from there family, loved ones, education from all the major social spheres of life. we never ask this question “ARE WE DOING JUSTICE TO THE THIRD GENDER?”
The eunuchs or hijras have been an integral part of Indian society since time immemorial. An estimated 5–6 million eunuchs live in India.In modern day India, eunuchs often live a ghetto-like existence, in their own communities. They make a living by dancing and celebrating in births and marriages but often have to resort to other means to make both ends meet. Yet, the community isbeginning to make a mark in the national mainstream as well. A member of the eunuch community, Shabnam Mausi, was elected as a member of the legislative assembly in 1999. Others have been elected as mayors and municipality presidents.
The term eunuch – hijra – that we commonly use to mean a ‘sexless’ person has been defined in the dictionary as a castrated man. A hermaphrodite is a creature possessing both the male and female organs. A transvestite is a person who chooses a sex other than the one he/she is born as. Facts tell us that neutralized neutral-sex persons are a rarity. The hijra population in India has a well-defined group structure and regional affiliations with a group head. Though Balucharaji is their Goddess and they revere Ambe Mata, there are religious demarcations. Most of them identify with the female sex. Within the eunuch community, incest is absent. Most of them have worked as prostitutes at one time or another. Research shows that some persons labeled hijra in India are both prostitutes and celebrants of rites of passage.
Hijras trace their origins to myths in the Ramayana and the Mahabharata. Rama, while leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the `men and women’ to return to the city. Among his followers the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people on auspicious occasions like childbirth and marriage, and also at inaugural functions. This set the stage for the custom of badhai in which hijras sing, dance and confer blessings.
The legend in the Mahabharata is that Aravan, the son of Arjuna and Nagakanya, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war. The only condition that he made was to spend the last night of his life in matrimony. Since no woman was willing to marry one who was doomed to be killed, Krishna assumes the form of a beautiful woman called Mohini and marries him. The hijras of Tamil Nadu consider Aravan their progenitor and call themselves aravanis.
Hindu epics, puranas and mythology are replete with the courageous feats of true hermaphrodites who, within these scriptures, have always been referred to as the ‘third sex.’ “But after the Arab attack in the eighth century, castration of males in order to put them on specific jobs began on a large scale” writes S. N. Ranade . Centuries ago, guards to king’s harems were castrated to ensure that no co-habitation between royal wives and guards took place. This led to the creation of the ‘third sex’ – the castrated eunuchs. But it was not the end of the story. These sexless wonders realized that perversions did exist in society. Many males found them distractingly attractive. And the potential ‘femme fatale’ was born.
Transgender communities have existed in most parts of the world with their own local identities, customs and rituals. They arecalled baklas in the Philippines, berdaches among American Indian tribes, serrers in Africa and hijras, jogappas, jogtas, shiv-shaktis and aravanis in South Asia. The hijra community in India, which has a recorded history of more than 4,000 years, was considered to have special powers because of its third-gender status. It was part of a well-established `eunuch culture’ in many societies, especially in West Asia, and its members held sanctioned positions in royal courts.
The Eunuchs are deprived of their fundamental rights guaranteed under the part III of the Constitution. Article 5 of the Constitution of India clearly states citizenship as the political status of a person and domicile to his civil rights. A person may be without a home but he cannot be without a domicile and the law must attribute to him the domicile of the country where he was born. This is called the domicile of origin and a person acquires it at his birth . The Supreme Court has also held that citizens include natural persons in the State Trading Corporation case . The Eunuchs in the instant case are citizens of India; still the Eunuchs are deprived of the civil rights guaranteed to the citizens of India. As there is no gender conformity their ability to access the basic civil rights available to all citizens guaranteed under the Constitution are adversely affected.
Article 14 of the Constitution of India provides that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In the given case the transgender are deprived of the right to equality guaranteed under Article 14 of the Constitution of India. Article 7 of the UN. Declaration of Human Rights provides that “All areequal before the law and are entitled without any discrimination to equal protection of law”.
The Indian state policy has not recognized the transgender either as male or female and has failed to recognize hijaras [transgender] as women or man or a third sex. This act of omission on the part of the Government of India has totally deprived the transgender community of several rights which include, right to vote, right to own property, right to marry, right to claim a formal identity through a passport and a ration card, driving license and even employment.
The Constitution has not made any provisions in determining the sex of the transgender community. But the medical jurisprudence clearly explains the sex determination in doubtful cases can be done with accuracy .
Article 15 of the Constitution of India provides that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth. The main purpose of Article 15 is to provide equal civil rights to all the citizens without discrimination on the grounds mentioned under the article. It also provides for the state to make special provisions for the advancement of any socially and educationally backward classes of citizens. Backwardness must be both social and educational, caste cannot be the criteria for the determination of the backward class of people . In the given case the transgender community can be considered as social backward class of people and special provisions can be made by the state for their upliftment, but, no such action is been taken by the Government. This shows the breach of duty that has been casted upon the government by the Constitution of India.
There are about 1.2 million eunuchs residing in India. They are deprived of various human rights like right to vote, right to contest in election, right to marry, right to hold ration card etc. They are deprived of such rights because India recognizes only 2 sexes, that is, male and female , and eunuchs being the third sex are being deprived of exercising their rights as all the fundamental rights are available only to male and female.
However, when it comes to criminal liability they are not excluded. The courts always include them either under male or female. But in case of civil rights the courts do not consider them as a legal entity. The Constitution of India provides various rights to ‘person’. Person means natural person and artificial person. Natural person includes all human beings and the eunuchs are no doubt from the human race and they must come under the category of natural person. Two Articles under the Constitution of India i.e., Article 15 and Article 16 have used the word ‘sex’ and the term sex include transgender also. The courts have often interpreted the term ‘ sex’ in a narrow sense that is male and female, and have not recognized the third sex, that is the eunuchs, which indeed has resulted in the eunuchs being deprived of the basic civil and human rights such as right to vote .
This view of law is contrary to the interpretation of the legislature. Before independence there was an act enacted to regulate the activities of the eunuch community. This clearly indicates that they are a legal entity. And also in the statute, wherever the term ‘person’ is defined it has never been specifically mentioned that eunuchs are excluded from the term person. Thus the interpretation of the term ‘sex’ by the courts in India have unfair and not satisfactory thereby violating the rights of the eunuchs.
Article 21 of the Constitution of India states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life and personal liberty are inherent in human beings. Thus, Article 21 seeks to protect these inherent rights by prohibiting the state or any person from depriving a person of the right to life or personal liberty except in accordance with a procedure established by law.
The Supreme Court of India has interpreted the right to life and personal liberty under Article 21 of Constitution of India to include the right to privacy, right to dignity and right to health. The Supreme Court for the first time, recognized that domiciliary visits, which were unauthorized by law violated the personal liberty of individual . In the case in hand the right to privacy of Eunuchs of Sukasthan has been infringed by the state police by arbitrary intrusion into their privacy.
Further, the Constitution requires the rights of the marginalization and unpopular to be protected, even in the face of public disapproval. Mere public preference cannot be a sufficient justification for curtailing a right . Article 21 of the Constitution of India also guards the right to dignity, every citizen of India has a right to live with dignity and through the act of omission on the part of the Government, the Eunuchs have been deprived of their right to dignity, because of non conformity of their sex, they have no access to the rights available to every citizen and it also affects their right to dignity. It is submitted that the states justification on maintenance of public morality for the infringement is not sufficient cause.
Therefore the state is violating the right to life under Article 21 of the Constitution of India in relation to the Eunuchs and the transgender community. It is submitted that the government has a duty cast upon it by the Constitution of India to protect the fundamental rights of the citizens of India, which has to be done by classification of the Eunuchs either under male or female and providing access to all the rights available to every citizen of India.
Hijras (Eunuchs) in India have virtually no safe spaces, not even in their families, where they are protected from prejudice and abuse. The PUCL(K) Report on Human Rights Violations against the Transgender Community has documented the kind of prejudice that hijras face in Bangalore. The report shows that this prejudice is translated into violence, often of a brutal nature, in public spaces, police stations, prisons and even in their homes. The main factor behind the violence is that society is not able to come to terms with the fact that hijras do not conform to the accepted gender divisions. In addition to this, most hijras have a lower middle-class background, which makes them susceptible to harassment by the police. The discrimination based on their class and gender makes the hijra community one of the most disempowered groups in Indian society. The systematic violence that hijras face is reinforced by the institutions such as the family, media and the medical establishments and is given legitimacy by the legal system. The hijras face many sorts of state and societal harassments such as:
Harassment by the police in public places
Harassment at home
Abuse/harassment at police stations
Rape in jails
The law that is used most to threaten the hijra and kothi communities, as well as the homosexual community in India, is Section 377 of the IPC, which criminalizes “carnal intercourse against the order of nature with any man, woman or animal” even if it isvoluntary. In effect, it criminalizes certain kinds of sexual acts that are perceived to be `unnatural’. The law, which has its origin in colonial ideas of morality, in effect presumes that a hijra or a homosexual person is engaging in `carnal intercourse against the order of nature”, thus making this entire lot of marginalized communities vulnerable to police harassment and arrest. The Immoral Traffic Prevention Act (ITPA) of 1956 (amended in 1986), whose stated objective is to criminalize brothel-keeping, trafficking, pimping and soliciting, in reality targets the visible figure of the sex worker and enables the police to arrest and intimidate the transgender sex-worker population.
According to the two main diagnostic systems used in the Indian medical establishment, transsexualism is defined as a `gender identity disorder’. The doctors usually prescribe a sexual reassignment surgery (SRS), which currently resorts to hormone therapy and surgical reconstruction and may include electrolysis, speech therapy and counseling. Surgical construction could include the removal of male sex organs and the construction of female ones. Since government hospitals and qualified private practitioners do not usually perform SRS, many hijras go to quacks, thus placing themselves at serious risk. Neither the Indian Council for Medical Research (ICMR) nor the Medical Council of India (MCI) has formulated any guidelines to be followed in SRS. The attitude of the medical establishment has only reinforced the low sense of self-worth that many hijras have at various moments in their lives.
With every single thing going against the Eunuchs; a notable amount of awareness has also been seen all over the world. Around the world, countries are beginning to recognize the rights of transgender people. In a landmark judgment (Christine Goodwin vs. the United Kingdom, 2002) the European Court of Human Rights declared that the U.K. government’s failure to alter the birth certificates of transsexual people or to allow them to marry in their new gender role was a breach of the European Convention on Human Rights. It said that a test of biological factors could no longer be used to deny recognition legally to the change of gender that a transsexual had undergone. In New Zealand, in New Zealand Attorney General vs. the Family Court at Otahuhu(1994), the court upheld the principle that for purposes of marriage, transsexual people should be legally recognized in their re-assigned sex.
Of late the Indian hijra community has begun to mobilize themselves through the formation of a collective. Sangama, an organization working with hijras, kothis and sex workers in Bangalore, has played an important role by helping them organize and fight for their rights. Its services include organizing a drop-in centre for hijras and kothis, conducting a series of public rallies and marches, using legal assistance in case of police harassment, and establishing links with other social movements.
The organizations of the hijra community can be seen as constituting a larger movement of sexual minority groups in India. Theyare challenging the constitutional validity of Section 377 and are organizing a campaign questioning the government’s stand that the law should remain. The discrimination and violence that hijras face show that it is high time that both the government and the human rights movement in the country begin to take this issue with the seriousness it deserves.
Yet, It is difficult to warm up to this strange creature we meet in the train or on the streets, with exaggerated gestures, a low-cut blouse sans breasts, a voice so raucous and manly and a manner so obscenely revolting that our immediate response is to shy away in disgust. We silently fume at this person’s gumption in demanding – not asking – not requesting – not begging, mind you – some money in exchange for a package deal in blessings – sukh, paisa and beta. But for this strange species of humanity, who happen to be eunuchs more by design than by birth or accident and rarely by choice, nothing is what seems to be. When a section of human beings becomes a cliché of our making, never mind the pressures of our social conditioning, it is time we questioned their claim to be treated only as normal human beings who can love and hate, construct and destroy, as strongly and as powerfully as ordinary mortals can.