Legal entity of eunuchs?

I have a few questions for you...

Existence of laws to protect transgender community?

Constitutional validity of sec.377 of IPC?

Recognition of homosexual marriage in India?

Whether Eunuch are Recognised as Legal Entity in India

Sharda Sharma
Chanakya National Law University

November 10, 2008

Abstract:
There are about 1.2 million eunuchs residing in India. They are deprived of various human rights like right to vote, stand in election, right to marry, hold ration cards etc. They are deprived of such rights because India recognizes only two sex i.e. male and females and so eunuch being third sex is deprived of exercising their rights as all rights are available only to male and females. However, when it comes to criminal liability, they cannot escape punishment because Court always includes them either under male or female. But as far as civil rights are concerned they fail to exercise that as courts do not consider them as legal entity.

Constitution of India provides various rights to "persons." Person means artificial and natural person. Natural person include all human being. But naturally eunuch are also person. However, two articles of constitution of India i.e article 15 and 16 uses the word sex. So, these two rights can not be exercised by eunuch as sex is narrowly interpreted by the court as to include only male and female. The interpretation of sex in a narrow way has not allowed eunuch to exercise their basic human rights. They are not allowed to vote as in voting list there exist only two category i.e male and female.

This view of Court is contrary to the intention of the legislature. Before Independence, government of India has formed an act to regulate the activities of the eunuch. This shows that they are legal entity. Also in all the statute where ever the word person is defined, it has never specifically mention that eunuch are excluded. So, the narrow interpretation of word sex by the Courts in India, is unjust and unfair and violates human rights of the eunuch.

Research Questions

• Whether eunuch are recognized legal entity;
• Whether they are recognized as a third sex or are recognized into the category of male and female;
• Whether they can contest elections;
• Whether they can be punished for any crime committed;
• Whether they can exercise their civil right i.e fundamental rights.

Keywords: eunuch, constitution of india, human rights, legal entity

Source:
SSRN-Whether Eunuch are Recognised as Legal Entity in India by Sharda Sharma


Related topics:
Legal position of Eunuchs

Effects of Castration, chapt. 1 - Eunuch Archive Message Boards

Homosexuality: How Law Deals With It In India

Vidhan Maheshwari - Law Student, NLIU, Bhopal

There is no explicit mention of homosexuality or hemophilia in any of the statute books of India. A person cannot be prosecuted for being a homosexual or hemophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found in the Section 377 of the Indian Penal Code (IPC) of 1860.

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either description for a term which may extend to ten years and should also be liable to fine.

The offence of homosexuality is read under this section as an Unnatural Offence. The term Carnal Intercourse used in this section refers to sexual intercourse between men or in other words, homosexual relationships. Section 377 of the Indian Penal Code, was enacted by the British in 1860.

The Indian law against homosexuality seems to be too harsh. The Constitutional validity of section-377 of IPC was challenged in the Delhi High Court as being violative of fundamental rights guaranteed under the Indian Constitution. Here it may be noted that, in practically all crimes against human body listed under the Indian Penal Code, some sort of physical violence or coercion is an essential element of crime. The only exception is in the favour of section-377, which criminalizes sexual activity that leaves no victims. In the history of the statute from, 1860 in 1992 there was only 30 cases in the High Courts and Supreme Court . " The small number of cases filed under this section shows that this section is redundant and outdated and needs to be repealed

The Central Government has informed the Delhi High Court that homosexuality cannot be legalized in India as the Indian society is intolerant to the practice of homosexuality/lesbianism. To paraphrase, three things can be said about the government's stance:

[a] the state has not just a function to, but actually a duty to stop unnatural sex, or else the social order would break down, law loose its legitimacy et al;

[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and

[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.

Source:
Same Sex Marriage: Is It The Time For Legal Recognition - Author - Vidhan Maheshwari


Related links:
same-sex marriage :: Additional Reading -- Britannica Online Encyclopedia

Homosexuality in India - Wikipedia, the free encyclopedia

Recognition Of Homosexuality In India-Its Time - Author - Nupur Mukherjee

Side Effectts of legalizing Gay Sex
Side Effectts of Legalizing GAYSEX in india ??
VOTE now NOT legalizing GAYsex in INDIA