Karnataka Sexual Minorities Forum v State of Karnataka & Ors.

February 8, 2017
LITIGATION
Gender & Sexuality

This petition was filed by the Karnataka Sexual Minorities Forum challenging the constitutional validity of Section 36A in the Karnataka Police Act, 1963. This provision was inserted with effect from 26th April, 2011.

 

Section 36A gives the Commissioner the power to “prevent, suppress or control undesirable activities of eunuchs”. It also allows the preparation and maintenances of a register of the names and places of residence of all eunuchs residing in a particular area who are suspected of “kidnapping and emasculating boys or of committing unnatural offences or any other offences or abetting the commission of such offences.”

 

Such a provision disproportionately criminalizes members of the transgender community and is therefore arbitrary, discriminatory and a violation of the rights to equality, liberty, life and dignity guaranteed under the constitution.

 

In this Petition, CLPR, filed two impleading applications on behalf of Akkai Padmashali and Jeeva. CLPR contended that Section 36A of the Karnataka Police Act is unconstitutional as it is ultra vires Article 14, 15, 19, and 21 of the Indian Constitution. It also contradicts the landmark Judgment passed in National Legal Services Authority v. Union of India(2014) 5 SCC 438 which upheld the rights of the transgender community and recognized them as the ‘third gender’.

 

During the hearings, the Government Counsel made a submission that the Government was willing to amend Section 36A.  The High Court of Karnataka passed an order on 12.1.2016 recording the same and gave six months to the Government to place the amended provisions before the Court.

 

Following this, the Karnataka Police (Amendment) Act 2016, was laid before the Legislative Assembly. On the 6th of February 2017, the amended provisions were brought into effect by the government. The amended Section 36A successfully substitutes the word “eunuch” for “person”.

 

This marks a historic step forward for the transgender rights movement as it demonstrates that the Government of Karnataka  has acknowledged the discriminatory nature of this law.

 

In view of the fact that Section 36A has been amended, this matter has now been closed.