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This article has been written by Suhasini Singh from SKTD Law College, Raipur. This article discusses how and why the British government criminalized transgender people in colonial India. Further, this article also talks about how the “Criminal Tribes Act” impacted the transgender community.

Introduction

Transgender persons are the people who are still struggling for their rights in our society as a result of society’s failure to accept their gender identities. As a result, they continue to suffer discrimination, social oppression, and physical abuse. However, National Legal Service Authority v. Union of India (2014) is a landmark judgment of the Supreme Court of India that declared transgender people as the ‘third gender’, and also affirmed that fundamental rights granted under the Indian constitution applies to them equally, and gave them the right to self-identify their gender as male, female or third gender. 

Moreover, In Indian society, transgender people have existed for centuries. It was also recorded in ancient Indian texts that “third sex” or persons not conforming to male or female gender existed. For instance, in the Ramayana and the Vedas, there is an explicit mention of the LGBTI community. Even in Mahabharat the sexual transition of ‘Arjuna’ the warrior during the ‘agyatvas’ period was duly respected and loved. 

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In the Mughal period, transgender also known as Hijras (or Kinnars) played a crucial role in the politics of empire-building. In the Mughal era, they occupied high positions as many influential figures such as officials, administrators, generals, and guardians of harems. Hijras were considered trustworthy, loyal, clever, and had access to all members of the populace. For this reason, they played an important role in Mughal-era empire building. Transgender people were given respect during the Mughal era.

But, after the onset of colonial rule in the 18th century, the situation of transgender people drastically changed. It was seen that early European travellers reacted negatively to Hijras, and they were baffled as to why they were given so much respect by the royal courts. British colonial administrations actively pursued criminalizing the Hijra community and denied them their civil rights during the second half of the 19th century. In different parts of India, the colonial authorities classified Hijras as separate castes or tribes. In 1871, the first Criminal Tribes Act (CTA) was passed by British India’s governor-general (the supreme ruler of the colonial authorities) which targeted ‘eunuchs’ (a stigmatizing colonial term for transgender). The policy which was initially implemented in northern India had been expanded several times, covering nearly the entirety of colonial India by the mid-1920s.

Why was the Criminal Tribes Act passed

Many laws were passed by the British to divide and treat Indians according to their religion and caste identification. The Criminal Tribes Act (or CT Act/CTA) is one of these laws. The British passed three Criminal Tribes’ Acts during colonial rule. These were:

  1. Criminal Tribes Act, 1871
  2. Criminal Tribes Act, 1911
  3. Criminal Tribes Act, 1924 

In 1865, the secretary to the North-Western Provinces(NWP) wrote to the inspector general of police indicating that the administration aimed to prevent an increase in the number of hijras/eunuchs as that would gradually lead to their extinction. The CT Act in 1871, thus aimed to eliminate eunuchs by preventing initiations, castrations (because the British erroneously thought castration was essential to Hijra-hood), and by making Hijras invisible in public spaces.

The British government enacted these laws for various reasons, which can be summed up as follows:

  • Those in charge of the British administration viewed wandering people with suspicion.
  • Additionally, the British government was strictly against mobile craftsmen and traders (who hawked their products in communities), and pastoralists (who had to move from one place to another in search of fresh pastures for their cattle). Therefore, in order to stop these activities, the government passed the Criminal Tribes Act, 1871 and listed many tribal groups in India as Criminal Tribes. 
  • The main purpose of the Act was to regulate and monitor pastoral people.
  • Consequently, to force these pastoral people to live in notified settlements and ban them from moving out without permission from the government. Due to this, their grazing grounds were restricted and their stock animals deteriorated.
  • By implementing the Criminal Tribes Act, the government aimed to rule over a settled population.
  • The government wanted the rural population to live in villages, in fixed places with fixed rights on specific fields as it was relatively easy to control and identify such a population.
  • There was a strong argument put forward that it was part of an entire model to preserve law and order in colonial India. Having used to a highly centralized society, the British viewed India as a volatile place with its complex array of castes and communities, each functioning as autonomous, self-governing units, following different lifestyles and social norms.
  • The most resistant communities to pax-Britannica were targeted in different ways for such special treatment. The worst victims were the communities that did not have sedentary lifestyles, which made it harder to demand subservience from them.

In 1952, the government of India replaced the Criminal Tribes Act with the Habitual Offenders Act. As a result of the enactment of this law, the former Criminal Tribes Act was denotified. In the contemporary world, most of these tribes are known as ex-criminal tribes or vimukta jatis.

The reason provided for the criminalization of transgender community

The Hijra community became a concern of certain provincial governments in British India around the middle of the 19th century, first in Bombay in the 1830s and then in northern India around the 1850s and 1960s. During the 1860s, the colonial government started getting anxious about the Hijra community as it intensified due to the 1857 rebellion. They also panicked due to their lack of knowledge of Indian society, and they considered the Hijra community as criminal, deviant, or marginal groups. British India criminalized homosexuals too. The Hijra community was really seen as being ungovernable and in these sorts of multiple, manifold ways. 

  • To begin with, they cast the Hijra community as embodying sexual disorder and portrayed them as ‘habitual sodomites’(a term which disregarded Hijras’ feminine gender identities and portrayed them as ‘men’ who were ‘addicted’ to sexual intercourse with men) and also as being prostitutes. 
  • Moreover, there is also another story that is connected to, namely that certain discipleship-based communities are being construed as being a type of sexuality, including the Hijra community.
  • Alternatively, tantric and devadasi communities were considered problematic as well. Furthermore, and in connection with this, Hijra’s gender expression was also considered problematic because of the ways that it challenges a binary conception of gender.
  • Hijra performance and badhai practices are frequently referred to as ‘begging’, which leads to them being regarded as ‘obscene’ and even ‘unclean’ in public places because of colonial anxieties.
  • Another noteworthy aspect of this colonial discourse is that the Hijra community is portrayed as being the kidnappers, castrators, and even pimps for male assigned children. This is a very disturbing discourse. However, it does frame the criminalization of the Hijra community as being a child-saving measure.

Provisions of the Criminal Tribes Act

There were several provisions of the Criminal Tribes Act that did injustice to the transgender community at large. Such as:

  • According to the Criminal Tribes Act, 1871, the police were required to register the names and residences of all ‘eunuchs’ reasonably suspected of sodomy, kidnapping, castration, or of committing offenses under Section 377 of the Indian Penal Code, 1860.
  • For example, in Queen Empress v. Khairati (1884), a transgender was arrested and prosecuted under the provision of Section 377 on the suspicion that the said person changed into a ‘habitual sodomite’. However, in this case, an acquittal was granted on appeal.
  • These activities were punishable by up to two years in prison and a fine or both. In the contemporary world, this pre-partition history influences hijra’s vulnerable circumstances.
  • Furthermore, Section 27 of the Criminal Tribes Act permitted the arrest of transgender individuals without a warrant and their imprisonment if found with a boy below the age of 16. This leads to re-instilling the stereotype of hijras to be perverse, deviant, and criminal.
  • Section 3 of the Criminal Tribes Act authorized the local government to designate any class of people who were addicted to the systematic commission of non-bailable offenses as criminal tribes.
  • Every registered Criminal Tribes Act member was supposed to report himself either once in a week or when the District Magistrate deems it necessary to do so, to the police or the village authority in whose neighborhood the registered member happens to be at that moment.
  • As a result, these people’s freedom of movement and privacy was drastically restricted.

Impact of the Act

This Act had a drastic effect on the Criminal Tribes. Such as:

  • Transgenders were deprived of both their primary source of income and any kind of rights under colonial law. This further became the reason behind their poverty and social exclusion. In fact, till now there are estimated to be 100 million people living under the cloud of the Criminal Tribes Act.
  • Transgender people were deemed a suspect merely for dressing in women’s clothes or performing in public. It affected Hijras’ day-to-day lives in profound ways.
  • Even though all members of the group were not criminals, still this act was passed, because of which it has been condemned. Though the fact that some criminals were in all groups cannot be denied, it is improper for the government to label a group as a criminal simply because a few in it were involved in criminal activity. Since a couple of people in a group were criminals, the government should have not denounced the entire group. 
  • Furthermore, the punishment prescribed for breaking the rules of being monitored, i.e. rigorous imprisonment, and whipping- demonstrates the cruelty of the policy.
  • The policy’s implementation was even worse than its bad intent. The people assigned to monitor these tribes ended up actually exploiting them.
  • According to a report in 1874, several transgender people complained to the district officials in Ghazipur that they were starving.
  • Also, due to the forced settlement of the tribes, often in new areas and often in the edges of towns and villages, the tribal people were unable to live according to their traditional lifestyles. The lack of work opportunities led to their desperation of work and this further created opportunities to exploit them.
  • Some of the village leaders used tribal members to beat up or steal from their rivals. Moreover, leaders/heads from these villages targeted the transgender community as they could easily fit into the tribal reputation as “criminals” and “thugs”.
  • In other instances, the newly settled tribes were compelled to clean the homes of the upper caste and forced to become manual scavengers.
  • In terms of geography and social order, they lived at the 10 peripheries of society. Several cases were reported in which low-level police officers used newly settled tribes to share their loot.
  • They were exploited when they needed travel passes to travel.
  • Similarly, the newly settled ‘criminal tribes’ were used by railway companies as captive labor.

Analysis

Colonial policies and laws did major injustice to the transgender community. It is evident that there was very strict enforcement of the law or even illegal policing practices, such as criminalizing unregistered people under the Criminal Tribes Act due to their gender identity or for wearing women’s clothes and performing in public. Similarly, we find that British officials and Indian police neglected and deprioritized the anti-Hijra campaign. 

This colonial law labeled some communities as so-called “criminal tribes” just because of their nomadic lifestyle. British judges characterized ‘Eunuchs’ as cross-dressers, beggars, and prostitutes in an unnatural way. It’s evident that the British tried to eradicate India’s third gender.

While the Criminal Tribes Act was primarily directed at tribal communities, several incarnations of the Criminal Tribes Act also imposed on the rights of transgender people and gender non-conforming individuals and communities in India. In this contemporary world, transgender suffers the consequences of pre-partition history. 

It is not uncommon to say that in post-independent India, the legal system was influenced by the contexts of colonial rule and law. Transgender people became marginalized over time. Public places and ceremonies that once waited for their divine blessings were gradually driven apart from society. The colonial cases of the transgender community demonstrate what is at stake in legal struggles. It illustrates how the law produces identities and then tries to control them, it also shows that the law can also serve as a vehicle for prejudice. 

It is clearly seen that transgender people faced many challenges in colonial India. In fact, they still face many challenges in the modern era as well, which leads to the questions that:

Why are they considered less than any normal ‘human being’? 

Why has society still not accepted them?

Conclusion

Transgender people are among the most socio-economically deprived groups in the country; they are frequently harassed and face violence by the police and the public at large. It is underrepresented at the state and central levels. 

This year during Pride Month, the Madras High Court has proposed measures to sensitize people about the LGBTQIA+ community so they can become part of mainstream society. Further, The Madras High Court has suggested changes in the school curriculum to educate students about the community.

In preparation for delivering the judgement, Justice N Anand Venkatesh engaged himself and undergone an educational training session with a psychologist to gain a better understanding of same-sex marriage. Justice Venkatesh also recommended several reforms for educational institutions, including holding Parents Teacher Association (PTA) meetings to raise awareness of issues facing the LGBTQ community and gender non-conforming students along with changes to the school curriculum. 

Despite the efforts of the government to prevent discrimination, the goals of compensatory discrimination-social justice, reducing inequality, and reintegrating the marginalized into society have largely not been accomplished. For instance, recently, the National Council of Educational Research and Training (NCERT) took down a publication titled “Inclusion of Transgender Children in School: Concerns and Roadmap” from its website as several conservative users on social media tore into the report and accused the NCERTof playing at being “woke” and trying to comply with “western norms”. Therefore, NCERT has withdrawn the said manual as a result of the pressure that conservative people have created online. 

Referring back to the quote of Nirmal Singh, president of the All India Tapriwas and Vimukt Jati Federation in 1981, he said compensation for discrimination had been ‘badly defeated’.

For generations, this community was subjected to widespread social stigmas and discrimination. In addition, it is evident that resolving such major problems requires substantial time and effort. 

However, with continued legal efforts and public relations campaigns, India can acquire the ability to fully embrace and support people from all backgrounds regardless of sexuality or gender orientation.

References

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