The long history of criminalising Hijras

In September 2018, LGBT communities across India celebrated a historic court judgement. The Indian Supreme Court ruled that Section 377 of the 1860 Indian Penal Code (IPC) – which criminalised sex “against the order of nature”, and was used against the LGBT community – could no longer apply to consensual adult sex. While the judgement was seen as a major victory for LGBT people, efforts to control, regulate and criminalise sexuality and gender expression continue in many forms, including the Transgender Persons (Protection of Rights) Bill (TPPR), which the recently re-elected Bharatiya Janata Party (BJP) government has announced it will reintroduce in Parliament. The bill, which activists have argued would legitimise violence and discrimination against transgender, intersex and gender non-conforming people, is an example of how colonial laws continue to be replicated in new legislation.

The 2018 TPPR bill criminalises gender diverse people in ways that resemble sections of the 1871 Criminal Tribes Act (CTA) that targeted ‘eunuchs’, a stigmatising colonial term for Hijras (or Kinnars). The 1871 law provides an important example for examining continuities in the policing of gender and sexuality, because even as the anti-Hijra provisions were repealed in 1911, their language and spirit has been echoed in postcolonial legal and policing practices.

An ungovernable population

The first part of the CTA targeted so-called “criminal tribes” – diverse, socially marginalised groups that the British labelled criminals by hereditary caste occupation – which are today known as Denotified Tribes or Vimukta Jati. Some communities were labelled ‘criminal tribes’ because of their nomadic lifeways, and others because of their apparently unproductive use of land and forests. Another aim was to dismantle indigenous policing systems. The CTA – which was repealed by the government of independent India in 1949, and replaced with the Habitual Offenders Act of 1952 – continues to be studied for its implications in treating entire communities as ‘habitual offenders’.

However, Part II of the CTA, which criminalised gender non-conforming people as ‘eunuchs’, has received less scrutiny and comment, partly because this part of the law was repealed in 1911. Nevertheless, it continues to inform the treatment of Hijras by the Indian state, and parts of the original act have been reintroduced through legislation adopted by different states in independent India. The second part of the CTA required the police to register ‘eunuchs’ who were “reasonably suspected” of sodomy, kidnapping and castration. People identified as ‘eunuchs’ were deemed suspect merely if they wore women’s clothing or performed in public. This had wide-reaching impacts on Hijras’ everyday lives.

India’s British colonisers viewed Hijras as a multi-faceted threat to colonial authority – as a population that was ungovernable in manifold ways. Misgendering feminine Hijras as men, colonial officials viewed Hijras as “professional sodomites” who challenged the colonial legal system, which was based on heterosexual, reproductive sexuality and the family. In the colonial view, Hijras were an “obscene” public nuisance that undermined the order of public space – a discourse that ignored the cultural significance of Hijra badhai (donations collected at births and weddings) and performance. Though generally sedentary, Hijras were labelled as “wandering people”, due to their (typically) short-distance travels to nearby villages for badhai collection. The British had long associated mobility with criminality and tended to collapse different patterns of migration into the singular category of “wandering people”, as was also evident in the ‘criminal tribe’ panic. Colonial administrators additionally claimed that Hijras were the kidnappers and castrators of children. In fact, adults as well as children were initiated into the Hijra community as chelas (disciples) of senior gurus. Official records do suggest that some 19th-century Hijras had been enslaved as children and subsequently sold to other Hijras, though enslavement was not a static status in Southasia.

The applicability of the CTA was limited to the North-Western Provinces (NWP) – present-day Uttar Pradesh and Uttarakhand – and Punjab, although it was only enforced in the NWP. The law potentially impacted all Hijras, because under government policy, key Hijra cultural practices (namely, performance and feminine clothing) were defined as proof that an individual could be “reasonably suspected” of kidnapping, castration and Section 377 offences, and thus should be registered by police. Moreover, the real impetus for the act was evident from correspondence between colonial officials on the need to bring about the “gradual extinction” of the Hijra community.

In 1865, R Simson, the secretary to the NWP Government – the highest-ranking bureaucrat in the province – had written to the Inspector General of Police that the administration’s aim was “to prevent an increase in the number of Eunuchs and thus gradually lead to their extinction.” The 1871 law aimed to effect the elimination of Hijras by preventing initiations and castrations – since the British erroneously thought castration essential to Hijra-hood – as well as by erasing Hijras as a visible social group in public space.

Individuals listed on the ‘eunuch’ register were prohibited from wearing feminine dress and performing in public, thereby outlawing Hijras’ gender expression and reducing their livelihood options. For instance, in 1874 several people criminalised as ‘eunuchs’ complained to district officials in Ghazipur that they were starving. The law also banned registered persons from residing with male children under the age of 17 years; provided for the forcible removal of male children from Hijra households; and interfered with Hijra succession and inheritance practices. Although Hijras were the primary target of the law, other gender-non-conforming people were also registered as ‘eunuchs,’ including Zananas, so-called ‘effeminate men’ who were often performers.

The colonial policing of Hijras was uneven. In some places we find very strict enforcement of the law, or even illegal policing practices, such as the prosecution of unregistered people under the CTA for wearing feminine clothing or performing. Elsewhere, Indian police and British officials deprioritised the anti-Hijra campaign. Part II of the CTA was repealed in 1911, because, in the words of the high-ranking official J P Hewett, “the eunuchs must be dying out.” In fact, Hijras had become skilled at evading the police and devising survival strategies.

Across northern India, Hijras broke the law and shirked police surveillance, shaping the irregular pattern of law enforcement. Hijras migrated temporarily or permanently to other provinces or Indian-ruled states, where they were not registered. They persisted in performing and expressing their gender identities, both illegally in public and legally in their homes. When it was too risky to publicly wear feminine clothing, Hijras sometimes mixed male and female forms of dress. Hijras also continued to collect badhai, hazarding prosecution under public-nuisance laws.

Middle-class Indian complicities and postcolonial governance

Rather than simply ‘inheriting’ colonial laws, the post-Independence Indian state has been shaped by Indian middle-class gender and sexual morality, which was constructed in the context of colonial rule, but was not simply a mimicry of colonial norms. In late-19th-century colonial India, the term ‘middle class’ was increasingly used by educated men from high-caste and Ashraf scribal communities, who were increasingly politically and socially dominant, to distinguish themselves from the old elite of Indian rulers and nobility. Middle-class notions of respectability combined Victorian morality, ambiguous notions of women’s uplift and redefined notions of ‘tradition’.

‘Middle-class’ Indian men also backed extremely harsh policing measures against the Hijra community. For instance, the famous Muslim intellectual Syed Ahmed Khan wrote to a high-ranking colonial official in 1870 that Hijras “lend themselves to practices as abhorrent to our feelings as they are unmentionable”, recommending that Hijras be confined to “certain localities… within which they must reside during the remainder of their natural lives, not going beyond the limits thereof.” Lalla Badri Pershad of the Indian Reform League similarly suggested that “a certain island or hill should be selected where they [‘eunuchs’] may be inhabited, and all intercourse with towns or cities intercepted.” Such Indian middle-class attitudes left their imprint on postcolonial governance.

In 2011, Karnataka included a new section in its Police Act – “Section 36A Power to Regulate Eunuchs” – which was derived from the 1919 Hyderabad Eunuchs Act, itself based on the 1871 CTA. That year, Karnataka abolished a number of laws from former princely states, but retained laws like the 1919 Eunuchs Act, which it deemed useful. This decision was made in the context of an anti-Hijra drive carried out by the Bangalore police between 2008 and 2011. Many Hijras were arrested and over 100 evicted from their homes, as police accused Hijras of ‘extorting’ money from motorists at traffic junctions, and kidnapping and pimping children. Telangana has also kept the 1919 law (though its enforcement has been temporarily suspended).

Karnataka’s Section 36A allows local police commissioners to register “eunuchs” who are “reasonably suspected of kidnapping or emasculating boys or of committing unnatural offences”, wording that was clearly borrowed from the 1871 CTA. The section prohibits registered people from participating in any act deemed ‘undesirable’, simply through a notification in the government gazette specifying those acts. Following activist outcry, the offensive term ‘eunuch’ was changed to ‘person,’ but this merely made the potential scope of the law even wider. The revival of aspects of the 1871 CTA by two state governments (Karnataka and Telangana) in the last decade clearly demonstrates that the colonial criminalisation of the Hijra resonates in the present.

Meanwhile, India’s state and central governments are introducing third-gender classifications, and there are several welfare and affirmative-action programmes for Hijras. Yet the boundaries of these gender categories are clearly policed. If passed, the 2018 Transgender Rights bill (or TPPR) will undermine the right to self-determination of gender identity, a constitutional right established by a 2014 Supreme Court ruling. The bill requires a certificate from the district magistrate for an individual to officially identify as ‘transgender’, while changing one’s identity from ‘male’ to ‘female’, or vice versa, would require proof of sex reassignment surgery. Trans people have spoken out against this aspect of the legislation.

The TPPR Bill also echoes the colonial criminalisation of Hijras. The bill will effectively make it illegal for transgender people to ‘beg’, treating the practice of badhai as begging. This will merely aggravate and entrench the socio-economic marginalisation of many trans people and Hijras, while simultaneously stigmatising Hijra cultural practices. These anti-begging provisions resemble the colonial policing of begging through public nuisance laws.

Rule by classification

The postcolonial criminalisation of Hijras is also reflective of the broader ways that modern states have sought to manage populations since the 18th century, by fixing peoples’ identities, enumerating categories of people, regulating household formations and rendering mobile communities sedentary. In colonial India, people whose gender expression challenged British binary understandings of gender were considered ‘immoral’, and their identity undermined the colonial state’s efforts to render the colonised population ‘legible’ (or visible to the state) through classification and statistics. The colonial censuses, for instance, only had two sex categories: male and female. Classificatory confusion suggested to the British that the Hijra community was unknowable, and thus, ungovernable. The current government’s unwillingness to allow people to define their own gender identities on official documents – as suggested by the 2018 TPPR – illustrates that diverse gender identities continue to challenge the state’s imperative to classify and know populations.

Gender, sexual and domestic norms are often central to how states envisage a governable population. These norms are dependent on specific historical and cultural contexts. Moreover, particular forms of non-normative gender expression or sexuality become the subject of heightened anxiety in specific, localised political contexts. Hence, some of the instances of Hijra criminalisation mentioned above were regional or city-level projects. But in each case, we see that Hijras were, and are, criminalised because the police and bureaucrats view them as ungovernable people. Since perceived gender and sexual disorder signals political disorder to the state, non-normative gender and sexual identities are understood as political threats. As a result, Hijras have sadly been – and continue to be – seen as deviant people by both colonial and postcolonial states.