Hijras – The Forgotten Natives

An Essay on "Hijras – The Forgotten Natives" by Prakriti elucidates the distinction between the social and legal conditions of the Hijras pre- and post-independence and how much change in the conditions proved to be detrimental for the Hijra community. The transgender community in India forms about 4.8 million of its total population. Among this widely diverse community, the Hijra community finds its roots in pre-colonial India, where the voices of these individuals were the loudest. As India transitioned into a "civilization" this community, among many others, lost its character, and today they struggle to find a native identity.

Further, the author concentrates upon the importance of the nationalization of the Hijra community to re-integrate them as a part of Indian Society. India has been a diverse nation before its boundaries were drawn on a piece of paper. This diversity allowed it to understand and inculcate human expression that could not be comprehended by its colonial masters. Hence, the Hijra community is native to India and its nationalization becomes critical for India to grow as a nation. This essay aims to provide a holistic overview of the social conditions and the legal developments surrounding the Hijra community.

Introduction

In its pre-colonial form, the Indian Society was seen as a gender-fluid entity that defined gender roles. The Vatsyayana Kamasutra (8th BCE) divides gender into three categories and assorts individuals into them based on their nature or Prakriti. The third gender acquired the name of tritiya-prakriti. Since the inception of collective identity within the Indian subcontinent, the third gender has been acknowledged, and such individuals can be seen in various instances such as in Hindu mythology, epics, and folklore and even in Puranic and Vedic Literature.

Lord Rama is seen to have sanctioned hijras with the power to confer a blessing on people, impressed by their loyalty. Similarly, Bahuchara Mata is seen as a gender-fluid Hindu God. During the early Islamic rule in Medina, the third gender prospered, acquiring both political and spiritual power. They were seen as servants of the Prophet known as the Khudd M.

This role of the third gender reached the Indian sub-continent too where the Sultanate had built not only a steady empire but also had re-established the roles of the third gender. Eunuchs played an important role in maintaining security in the imperial harems of the Mughal rulers and hence were often seen as officers of the empire. They were well paid and provided a healthy status in society. Pre-colonial India recognized the identity of the third gender and found it in synchronization with the Indian Culture and Society. However, colonization left a scar on the growth of this community.

British Rule

The British came to India as merchants of spice but soon this "spice trade" metamorphized into a purchase of power. Associating their atrocities to those of the Greco-Roman empire and self-identifying as their successors, they believed it to be their sacramental duty to 'civilize' the Indians as they were once 'civilized' by the Romans. They believed themselves to be intellectually superior and hence justified their imperial injustices. In the early citations of the eunuchs by European travellers, they were chronicled as court officials who were often regarded as cruel and terrorizing. These travel logs rarely mentioned Hijras. Early sixteenth-century records depict that hijras received protection and were allocated land by some Indian States.

However, the light in which society viewed the Hijra community was permuted with the expanding colonization by the British. The beginning of the eighteenth century can be seen as a landmark concerning the change brought about in the social image of the Hijras. The third-gender which was an integral part of the Indian society was now being subjected to aesthetic standards of British travellers who found them "revolting". The gender fluidity and inclusiveness fostered by a string of Indigenous cultures and empires were threatened by the foreign entities that derived their thoughts from heteronormative norms and the binary concept of gender. In numerous works, they were represented as obscene prostitutes and beggars and called an 'outrage to morality.'

Towards the end of the sixteenth century, the Hijras were infamous subjects of European physicians who sought to understand their autonomy. A community formerly respected and acknowledged among the natives of the Indian subcontinent was reduced to social jeers and biological anomalies. The identities of these individuals simmered down to biological epithets that differentiated them based on their genitalia. These 'hermaphrodites' were stripped of their cultural richness and heritage – the very things that provided them with a united identity and one might argue that gave them a nationalistic feeling. It wasn't until the 1840s that colonial doctors began seeing beyond the physique and their studies included a limited view of culture and customs.

Once their autonomies were safely categorized and compartmentalized, their sexual habits were subjected to research, as according to India's colonial masters, they defied the boundaries of Indian sexuality. Sexual habits of the third gender were reduced to specializations by colonial ethnographic enthusiasts who claimed to possess knowledge about the emasculation procedure of the community. However, it wasn't until the mid-nineteenth century, that any information about Hijras was published in any medical journals. The limited account of the third Indian gender before that time was addressed in small circles of doctors and the imperial household.

The mid-nineteenth century also acted as a catalyst as Company officials now began seeing the social practices of the Hijras as a problem. The existence of this community was beginning to cause issues among the colonial officials. In such an instance the Assistant Collector of Pune was found interviewing seven Hijras to establish the act of prostitution between the community and men. When the Hijras were being divested of all honour and dignity that was given to them before the arrival of the "firangis", begging was seen as a method of extorting money rather than a mixture of ancient tradition and the social conditions of these individuals during the colonial times.

The initiation into the community through the process of castration was severely condemned by the officials and a conclusion to bring about new legislation which would deal with not only the sexual practices of the Hijras but also prevent their social and cultural identity from being exposed to the public. The British, rather than understanding the Indian Social system started regulating it. In a process to bring about social and legal 'reforms', they were slowly obliterating not only India's cultural identity but also establishing new gender identities which would soon overpower the original Indian value system and pre-colonial gender roles would only be cited as a 'biased narrative against women' while erasing the existence of the third gender during pre-colonial times.

The Hijra Panic

The first instance of moral panic can be traced back to 1744 with numerous instances leading up to the latest happening during the COVID pandemic. Cohen defines this phenomenon as

"a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests."

The Hijra panic was a result of the insecurity that arose in the colonial regimes when they witnessed events or groups that were away from the conventional. Hence, it arose from the lack of knowledge about the Hijras among the British. Following several criminal cases that came to the courts in the North-Western Provinces in the 1850s and 1860s, the British administration sought to extinguish the parts of the Indian society which proved to be a threat to their colonial authority.

The case of Government v. Ali Buksh provided insight into the minds of colonial judges. In this particular case, the victim was a Hijra named Bhoorah who was murdered. Among the two suspects were Bhoorah's lover Ali Buksh with whom Bhoorah lived as a 'prostitute'. Eventually, Ali Buksh was convicted. However, rather than protecting a Hijra Victim, the judges took an opportunity to condemn the practice of 'unnatural' prostitution being done by the Hijras. Their judgment went further to discuss the begging of the Hijras at weddings and special occasions with complete disregard to Indian tradition and folklore. Hijras were considered morally offensive and even believed to have an internal government that worked in retaliation to the colonial government. Hijras were soon stereotyped and declared 'unnatural prostitutes', cross-dressers. In the eyes of the British, they were not a community but a tribe as they considered them to be ungovernable and unpredictable.

The revolt of 1857 resulted in the British losing control of most parts of northern and central India. As a method to regain control, the British used various control mechanisms such as the consolidation of legal codes. However, no number of measures could seem to control the sense of vulnerability felt by these officials. As a result, the British administration attempted to control numerous social groups and practices. Marginalized social groups such as the scheduled caste and the untouchables were now seen as hereditary criminal groups which required to be controlled socially and sexually.

Three years following the case of Bhoorah the case of Government v. Munsa acted as a landmark in expediting the process of new legislation which would restrict the hijras not only sexually but also socially. In this case, five people were charged with the kidnapping and emasculation of a nine-year-old boy, Gruppo. The case was decided on the testimonies of two minors.

The judges' decision was considered a 'disgusting exposure' of the Hijra community. Similar cases with about thirty-one persons were tried by the Sessions Court of Shahjahanpur in 1864-65. Consequently, in 1861 a letter proposing legislation targeting Hijras was sent to the central Legislative Assembly. The Hijra community was soon socially criminalised due to the repetitive nature of such crimes. However, no legislation was passed. Their morally deviant behaviour was amplified and exaggerated- a few incidents were hence used to stereotype the entire Hijra population as an immoral tribe. It is to be noted that the Hijra population was lower than it was assumed to be and a very little part of that population constituted minors.

While the Hijra Panic was restricted to the North Western Provinces, the administration made a collective effort to record the population of 'eunuchs'. This gave birth to the "registers of eunuchs" which recorded information such as an individual's name, age, place of residence, districts "frequented," age of castration, castrator (if known), and "an ostensible livelihood."

While on the surface, this register provided a means to govern the Indian population effectively, it was actually a measure that the British used to implement the slow extinction of the Hijras Other marginalized Indian communities were also prey to such registers which provided the British a sense of control among Indians. The administration's view of Hijras as a tribe also enabled them to add them to the Glossaries of Castes and Tribes in the 1870s. The British targeted communities which formed the very essence of India since ancient times and hence jeopardized the inclusion of the Hijra community in the collective identity of Indians. North Western Province's efforts to criminalize the sexual and social lives of the Hijra community finally materialized with the passing of the Criminal Tribes Act, 1871.

Criminal Tribes Act, 1871

The Criminal tribe act was an unjust piece of legislation that targeted the Indian community at large. To the Hijra community, it was a device that controlled, not only their social behaviour but also their sexual activities. The Act gave the local government the authority to declare any group or class of people criminal and also provided this declaration immunity from Judicial review. This enabled the administration to govern Indian communities arbitrarily. This Act further extended powers of relocation to the local government enabling them to geographically separate different communities which they believed to be difficult to govern. It went on to penalize free movement and the right to the passage of these communities.

Part II of the Act was dedicated to the administration and regulation of 'eunuchs'. This included the making of registers and penalties for appearing in female clothes and engaging in 'unnatural' sex. They were not allowed to make a will or adopt a male child. In the case of discovery of a child below the age of sixteen with the Eunuch, he would be subjected to imprisonment. Numerous cases following the implementation of this act were arbitrary and often based on vague evidence. In the case of Queen Empress Khairati, the non-normative sexuality of an individual was established by a distended anus and he was prosecuted under Section 377.

The Criminal Tribes Act resulted in the strengthening of the stereotype the British administration believed to be true. It not only deprived the Hijra community of their primary source of income but also took their freedom of speech and expression by dress coding them among other fundamental rights. Their forced relocation resulted in them losing numerous employment opportunities and segregated them from the mainstream community, the after-effects of which are still prevalent in our contemporary society.

This act, although a result of the ignorance and insecurity of the British, slowly seeped into Indian society as the westernization of India took place. A new education system was brought about by the British which resulted in the neglect of indigenous education. As a result, the third gender was soon forgotten to even exist as an integral part of the Indian community. After independence, India as a nation was declared free. However, this community was still a captive of the British injustice and administrative prejudices up until the removal of section 377 of the Indian Penal Code, 1860 which symbolized the impact of two centuries of colonial power verses pre-colonial Indian society.

Decriminalization of Homosexuality

Section 377 of the colonial penal code criminalized all sexual acts which went against the order of nature i.e., carnal intercourse. While not technically homophobic, this act criminalized all homosexual activities. This section also claimed its place in the Indian Penal Code, For the re-integration of the third gender in the Indian community, however, it became necessary for this section to decriminalize homosexual intercourse. The Indian Judiciary acted as a catalyst for this process. Five successive judgments paved way for the decriminalization of sexual activities done in private by two consenting individuals.

1. Naz Foundation v. Govt. of NCT of Delhi (2009)

The case of Naz Foundation was brought before the court, the orthodox and unjust side of Section 377 of the Indian Penal Code, 1860 for the first time. Section 377 was used as an umbrella term to criminalize oral and anal sex regardless of the sexual identity of the partners. This directly targeted the sexual integrity, privacy, and anatomical freedom of the LGBTQ community in India.

This impeded the efforts made by the Naz Foundation toward Public Health, particularly in HIV/AIDS information and prevention. It further violated Article 15 as it discriminated based on sexual orientation and Article 14 of the Constitution of India which provides equality before the law and equal protection of rights. Section 377 failed to prove the nexus of rationality under Article 14. Evidence was provided for the extreme social exclusion and ostracism of the LGBTQ community. The court held that an individual's sexual orientation came under the ambit of the right to privacy which was included in Article 21 of the Constitution. Hence, Section 377 denied an individual, the right to express themselves and criminalized them based on their sexual orientation.

2. Suresh Kumar Koushal v. Naz Foundation (2013)

This was a civil appeal made on the decision of the High Court in the former case. A two-bench panel overturned the High Court's decision because it was "legally unsustainable" and upheld the constitutional validity of Section 377. Numerous grounds were provided to sustain the court's decision, including the age of the law. The Court maintained that:

"Section 377 does not criminalize a particular people or identity or orientation. It merely identifies certain acts that would constitute an offence if committed. Such a prohibition regulates sexual conduct regardless of gender identity and orientation".

3. Curative petition by Naz Foundation (2016)

After the review petitions of the applicants were rejected, a request for the review was filed as a Curative petition. The concept of the Curative petition itself is of such an extraordinary nature that since the 2002 Supreme Court Judgment introduced it, only four such petitions have been allowed. The case was allowed to be heard in an "open court" in 2014. After hearing the opening arguments, the judges passed the order for the case to be heard and contested in front of a five-judge constitutional bench.

4. Justice K.S. Puttaswamy v. Union of India (2017)

Although this case primarily dealt with the Right to Privacy, the Nine judge bench gave a passing reference to Section 377 of the IPC. The court mentioned Section 377 as an opposing force toward the development of the Right to Privacy in India. It further invalidated the 2013 Koushal judgment.

5. Navtej Singh Johar v. Union of India (2018)

This involved five individuals from the LGBTQ community approaching the Supreme Court under Article 32 concerning the violation of their right to sexual privacy and right to freedom of speech and expression provided under Article 21 and Article 19(1) (a). The bench reversed its 2013 judgment and held that consensual sexual acts between adults are not a crime and a person's sexual autonomy is included in his Right to Privacy.

While these five judgments paved the way for the Hijra community to gain one aspect of their social being back, India still has a long way to go before it gives this community the same recognition and respects our ancestors gave them. Legislations such as the Right for Transgender Persons Bill, 2016 have protected the Hijra community to some extent. However, these do not come without the risk of being discriminated against by public authorities. Further, these legislations still do not address various issues such as adoption and transfer of property rights. A lesser-known legal victory remains to go unnoticed as Section 36A of the Karnataka Police Act, 2016 replaced the term "eunuchs" with "person". This section provided arbitrary power to the police forces which was being used against people of the third gender.

Conclusion

India is a nation that harbours numerous cultures, communities, and traditions. Since ancient times, it has been a state open to diversity and change. Hijras form an essential part of the Indian heritage, yet, upon the arrival of the British, this integrity witnessed the wrath of western conservative ideas. Identifying as "culturally superior", the colonial rule brought with it a sense of orthodoxy that had never been native to Indians. Until this day, India is trying to fall back on its roots and give the Hijra community what it initially owned. The nationalization of the Hijra community is vital if we are to walk in a forward direction. India is more than a nation. It is a harmonious synthesis of community that acts as an integral unit. The Hijra community is one such unit that needs to be reassimilated into India and undergo the process of nationalization.

References

[1] Hinchy, J. (2019), Governing Gender and Sexuality in Colonial India, Available Here

[2] Anand, M. & Dane L. (1982), Kama Sutra of Vatsyayana, Available Here

[3] Kothari J. & Sanyal D. (2017), Courts Recognizing Transgender Rights, Available Here

[4] Hijra Community & Beggary (2022), Available Here

[5] Suresh Kumar Koushal & Anr v. Naz Foundation & Ors, Civil Appeal No.10974 of 2013

[6] Naz Foundation v. Government of NCT of Delhi and Others, WP(C) No.7455/2001

[7] A coin from eunuch…a token of honour (2019), Available Here

[8] Dharmadhikari A. (2015), The Hindu Goddess Worshipped by India's Transgender Community, Available Here

[9] Hinchy, J. (2019), "Registers of eunuchs" in Colonial India, Available Here

[10] Goel, A. (2020), Hijras Disposition during British Colonization, Available Here

[11] India's Relationship with the Third Gender, Available Here

[12] Michelraj, M. (2015), Historical Evolution of Transgender Community in India, Available Here

[13] Hunter S., Hijras and the legacy of British colonial rule in India, Available Here

• Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams
• Law Aspirants: Ultimate Test Prep Destination