—Rishabh Mehta, candidate for B.B.A. LL.B (Hons.), Gujarat National Law University, India; Aditya Birla Scholar and Executive Editor, GNLU Student Law Review
On 13 March 2026, the Union Minister for Social Justice and Empowerment introduced the Transgender Persons (Protection of Rights) Amendment Bill, 2026, in the Indian Parliament. Both Houses of Parliament have since then passed the Bill, and it has now received Presidential assent (“2026 Amendment Act”). This assent reverses the constitutional gains made in the last decade, specifically (discussed below), which recognised the right to self-identify gender. The 2026 Amendment Act restores a logic that Parliament has not endorsed since 1952, namely that of the Criminal Tribes Act, 1871 (“1871 Tribes Act”).
This draconian law presumed trans and gender non-conforming persons inherently criminal, required state-supervised registration for legal existence, and criminalised the community structures (guru-chela system) through which they survived. As I argue in this post, the 2026 Amendment Act reinstates all of these. Though framed as protection and welfare, the 2026 Amendment Act strictly regulates who a transgender person is, imposes mandatory medical certification and threatens community structures. In NALSA, the Court rejected the 1871 Tribes Act as it was a brutal legislation with a vicious and savage mindset.[1] The Court, in any future challenge to the 2026 Amendment Act, must ensure that the same fate is given as the 1871 Tribes Act.
What NALSA Built
In NALSA, a two-judge bench of the Supreme Court for the first time recognised transgender persons as a ‘third-gender’ and held that gender identity is self-determined.[2] It rejected the “Biological Test” derived from the English decision in Corbett v. Corbett (1970). It read Yogyakarta Principle 3, prohibiting mandatory medical procedures for legal gender recognition, into Articles 14 (equality), 19 (freedom of expression), and 21 (right to life and personal liberty) of the Indian Constitution. Any insistence on surgery or medical intervention for legal recognition was declared to be immoral and illegal.
The Transgender Persons (Protection of Rights) Act, 2019, encoded this understanding of gender identity in statute. Section 4(2) of this Act gave every recognised transgender person the right to self-perceived gender identity. Section 6 allowed a District Magistrate (“DM”), a local government officer, to issue a certificate of identity based on an affidavit, without requiring a medical evaluation. The 2019 Act was imperfect as it failed to extend NALSA-mandated reservations, imposed lower penalties for crimes against transgender persons than for equivalent offences against others, and left welfare provisions largely unimplemented.[3] But the constitutional principle was correct, as it recognised that gender identity belongs to the person, not to the State.
The 2026 Amendment Act deletes Section 4(2). It replaces the broad definition of “transgender person” with a closed list of identities, comprising hijra, kinner, aravani, jogta and the word “eunuch,” plus persons with specified congenital variations. With India’s broad socio-cultural identities, trans-men, non-binary persons, and trans-women outside those named communities vanish from the definition entirely. With self-identification removed, the right to gender identity now flows from the State’s recognition of the body, not the person’s knowledge of the self.
The Grammar of the 1871 Tribes Act
The 1871 Tribes Act operated on three moves. First, it created a state-defined list of recognised identities. Eunuchs who registered with local authorities were permitted to exist within the law. Those who did not were presumed criminals. Second, it mandated medical inspection as a condition of registration. A registered eunuch was one who, on medical inspection, clearly appeared to be impotent. Third, it criminalised the community itself. Trans and gender non-conforming persons have historically lived in communal networks led by a guru, with younger members called chelas. These networks provided kinship, livelihood, and protection to persons rejected by their natal families. The 1871 Tribes Act presumed this arrangement to be a criminal recruitment structure. It made it an offence for a eunuch to have a boy under sixteen in the household.[4] Community membership was considered coercion as it assumed forced recruitment of boys into castration and a life of begging.
The 2026 Amendment Act similarly recasts each of these three draconian moves, as seen below:
First, as mentioned earlier, the 2026 Amendment Act restricts legal recognition of transgender people to a closed list of named socio-cultural identities and specified medical conditions under the new Section 2(k). Among the identities it names is “eunuch”. Eunuch as a term in this context appeared prior in the 1871 Tribes Act, which used it to register, surveil, and criminalise gender non-conforming communities. The Statement of Objects and Reasons of the 2026 Amendment Act framed itself as targeted welfare to protect those facing social exclusion ‘due to biological conditions’. Reviving ‘eunuch’ serves that framing by anchoring recognition in a medically verifiable, state-legible body rather than in self-perceived identity, replacing a constitutional principle with a colonial vocabulary. Therefore, it seems the government may not have revived this word by accident.
Second, the 2026 Amendment Act replaces the self-declaration affidavit with a mandatory two-stage medical filter. The DM has the power to issue or refuse a certificate of identity, which is the only document that determines whether a person legally exists as transgender. The DM acts on the recommendation of a state-appointed medical board headed by a Chief Medical Officer and may seek the opinion of additional medical experts, with no criteria specified and no appeal mechanism provided. This mandatory medical board compels a person to submit bodily and hormonal data to a state-appointed officer as a precondition for legal existence. As the Indian Supreme Court held in K.S. Puttaswamy v. Union of India (2017), any intrusion into informational privacy must satisfy a three-part test: sanction by law, a legitimate state aim, and proportionality. The medical filter is precisely such an intrusion whereby the State reaches into the most intimate layer of a person’s self-knowledge and makes its own determination authoritative over theirs. The 2026 Amendment Act states no purpose for the medical board. It identifies no aim. It creates no limit on what the DM may do with the information collected. As such, it fails all three limbs.
Third, Section 18 of the 2026 Amendment Act creates new offences carrying sentences of five years to life imprisonment. These offences are built on the premise that trans identity is coerced. Abducting someone and causing bodily harm to force them into a trans identity carries ten years of imprisonment to life. Compelling someone to present as transgender and subjecting them to begging or servitude carries five to ten years. If the victim is a child, the sentence rises to life imprisonment or ten to fourteen years. These offences target the gharana (the household unit built around the guru-chela relationship), the chosen family, the community organiser, and the NGO worker. The vagueness of “force, allurement, inducement, deceit or undue influence” is enough to criminalise any trans person who takes in a younger person fleeing a hostile home. The 1871 Tribes Act penalised eunuchs for having a boy under sixteen in the household on the same presumption: that community membership is recruitment, and that any kinship amounts to coercion. The 2026 Amendment Act rests on the same presumption in new language. The underlying tones of a closed list, the requirement for a medical filter, and the threat of criminalisation of the community remain.
The Government’s Statement of Objects and Reasons cites no data from the National Crime Records Bureau. It references no documented pattern of coercive recruitment. It simply asserts that trans identities can be “imposed” without evidentiary support for that assertion. Most recently, the Telangana High Court in Vyjayanti Vasanta Mogli v. State of Telangana held that such criminalisation provisions of the 1871 Tribes Act had a chilling effect on the freedom of expression and privacy of transgender persons and furthered derogatory stereotypes. The 2026 Amendment Act, rather than endorsing this progressive development, chooses to travel a century-and-a-half back and restore a draconian law.
Protection or Control
The Government has argued that the Amendment Act offers long-overdue recognition to the hijra, kinner, and aravani communities that have faced centuries of discrimination and that by naming them expressly in statute, it delivers targeted welfare to those ‘in actual need of such protection’. The 1871 Tribes Act also claimed to regulate and thereby recognise eunuch communities. State-supervised recognition has always worn a welfare mask. The question is not whether some persons are named. The question is what the naming does to those who are not, such as the trans men, non-binary persons, and trans women, outside the listed socio-cultural categories, who vanish from legal existence the moment the list closes.
The 2026 Amendment Act’s definitional list is both over-inclusive and under-inclusive. It collapses intersex persons into a medicalised category of “congenital variation,” erasing the distinct legal status they held under Section 2(i) of the 2019 Act. India’s trans communities encompass identities that vary by region, language, and culture, many of which fall outside the 2026 Amendment Act’s closed definitional list. It omits kothis (born male adopted a feminine gender-identity), Thirunangai (trans-women in Tamil Nadu), Thirunambi (trans-men in Tamil Nadu), Nupi Maanbi (trans women in Manipuri) and Durrani (Hijras in North India). None of these terms is named in the socio-cultural categories in the 2026 Amendment Act. Therefore, a DM empowered under the 2026 Amendment Act to issue certificates of identity, who is unfamiliar with the identity, cannot issue a certificate. Thus, under the 2026 Amendment Act, that person does not legally exist.
A protection regime that erases more identities than it recognises is not protection. Selective recognition combined with punitive criminalisation is the definition of a control architecture. The 1871 Tribes Act called it a regulation. The 2026 Amendment Act calls it welfare. The label is immaterial. What matters constitutionally is the mechanism: a state-defined list of recognised identities, medical gatekeeping as a condition of legal existence, and the threat of criminalisation of the community. This architecture remains unchanged.
What the Court Must Hold
Challenges to the Amendment Act are already being prepared. As and when the Indian Supreme Court hears them, three holdings are constitutionally required.
First, the deletion of Section 4(2) is unconstitutional. The right to self-perceived gender identity is not a statutory creation. It derives from Articles 14, 19, and 21 of the Indian Constitution as interpreted in NALSA. Parliament cannot remove a right that flows from the Constitution by amending the statute that codified it. The deletion must be held to be void.
Second, the medical board certification regime violates the Puttaswamy proportionality test. It has no stated aim. It has no rational nexus. It creates a surveillance record of gender-affirming surgery with no use limitation. The new Section 7(1A), which requires hospitals to report surgical details to the DM, fails all three limbs of the privacy test. Additionally, it fails even on the ground of administrative convenience, as the Supreme Court in Navtej Singh Johar v. Union of India (2018) rejected administrative convenience in favour of a constitutional guarantee.
Third, the retrospective clause is constitutionally void. The proviso to the new definition states that the category of transgender person “shall not include, nor shall ever have been so included” self-identifying persons. Parliament may prospectively withdraw statutory rights. It cannot legislate the past into non-existence. Over 32,000 certificates have been issued under the 2019 Act. The 2026 Amendment Act contains no transitional provisions. It simply declares that those persons were never who they claimed to be. A statute cannot simultaneously claim to protect a class of persons and contain within itself a provision designed to shrink that class retroactively. The rights flow from the status. Destroy the status retroactively, and you destroy vested legal identities conferred under a prior constitutional direction. That is not legislation. It is erasure by fiat.
In NALSA, the Supreme Court said, “the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change”. The 2026 Amendment Act does not change that mindset; rather, it legislates it. The Court entitled trans and gender-non-conforming citizens to constitutional recognition over the course of a decade and must now dismantle what Parliament has reincarnated from the 1871 Tribes Act.
Suggested citation: Rishabh Mehta, Decolonisation in Reverse: India’s 2026 Transgender Amendment Act and the Return of the 1871 Criminal Tribes Act Rationale, Int’l J. Const. L. Blog, Apr. 25, 2026, at: http://www.iconnectblog.com/decolonisation-in-reverse-indias-2026-transgender-amendment-act-and-the-return-of-the-1871-criminal-tribes-acts-rationale/
[1] NALSA v. Union of India, Writ Petition (Civil) No. 604 of 2013 (2014) (¶110).
[2] NALSA v. Union of India, Writ Petition (Civil) No. 604 of 2013 (2014) (¶¶76, 129).
[3] Bal, Ankana, The Transgender Persons (Protection of Rights) Act, 2019: Critical Analysis. International Journal of Law Management & Humanities, 3, 1069-1078 (2020).
[4] §27, Criminal Tribes Act, 1871.