Daily Times

Since the British raj in the subcontinent, the transgender’s community which is commonly known as Hijra also known as Khawaja Sira in India and Pakistan have had a difficult time since the colonial rule in the region.

Britishers in subcontinent had represented Hijras as an immoral community, after 1850 the community became the subject of hatred among British colonizers of subcontinent. The then colonial courts criminalized and stereotyped the transgender community in general and seen them as “eunuch problem” and portrayed them as prostitute. According to Jessica Hinchy, a prominent researcher, the judges appointed by the colonial power viewed Khawaja Sira as morally offensive and described them as “pollution.” On political front, the insecurity of colonial rulers was also overwhelmed. Before the British colonial rule, Hijra were entitled for rent- free land and other rewards in many small Maharaja/Nawab polities, i.e. precolonial Maratha’s rule in the Bombay region. Under the East India Company, the colonial rule tried to redraw the agreement between the Hijra community and the new colonial rule. These executive efforts made the issue more critical particularly in term of “rights” the Hijra community was entitled to in Maratha polities in Bombay region. Consequently, the Bombay presidency stopped all the rights, i.e. rent-free land, right of begging and other small grants that this community had received from previous rulers. Moreover, the Hijra’s discipleship system was perceived as a parallel political force that can challenge the British colonial rule. Hence, East India Company’s official Charles Raikas was appointed to compile a detailed report on Hijra whether a special anti-Hijra was law was required to control the community.

By virtue of the Criminal Tribes Act 1871(CTA) the elders or village headmen have been given a power to monitor the community in a way seeing them criminals or harm to the society

As stated earlier, the British rulers of subcontinent have perceived transgender community (Hijras) as a potential threat to the colonial rule as a parallel community that was ungovernable for the new rulers.

Therefore, colonial rulers have perceived Hijras as “sodomites” who also challenged the English legal system that was on that time based on family, heterosexual and reproductive sexuality . Here, it is also pertinent to mention the Criminal Tribes Act 1871 (CTA) as introduced by the Britishers to “govern” transgenders, this particular legislation criminalized the transgender people in colonial period. The CTA in its introduction bracket the transgender community with the “criminal tribes.” Therefore, it describes the CTA as: “An Act for the Registration for Criminal Tribes and Eunuchs.” The Act also gives the power of “surveillance and control” against these so-called criminal tribes. Moreover, categorization of transgenders among “criminal tribes” shows the colonial mindset which corroborates the impression that the British rulers have viewed them as a potential threat to the colonial rule. By virtue of the Criminal Tribes Act 1871(CTA) the elders or village headmen have been given a power to monitor the community in a way seeing them criminals or harm to the society.

Therefore, hatred have seeded in the entire society against transgenders which is still persisting in the Indian and Pakistani societies because the roots of this discrimination have penetrated so deep.

Similarly, the CTA under section 30 requires a property registration and penalizes the refusal of related information. Penalizing the clothing and other social attributes in a “Registration Act” which was actually meant to record and register certain communities, the legislation was unnecessary rather an insecure measure.

It also worth mentioning that other than “eunuchs” there were no other community have mentioned in the legislation that made the entire legislation discriminatory. Although the CTA 1871 was only enforced in the North West Province now Punjab, Uttarakhand and Uttar Pradesh, the implications of application of CTA have impacted all transgenders even after the colonial rule. In this context, the post independent India and Pakistani societies inherited the colonial mindset of sexual morality. A detailed research that highlights the historical roots of discrimination against transgender community has been recently published in the international journal of law and Management (UK) which further unfolds the imprints of colonial hatred in the Pakistani and Indian Societies in a critical manner.

The writer teaches law at the Multimedia University Malaysia and holds a Ph.D.