This judgment decided the fate of the Telangana Eunuchs Act, 1329 Fasli, a shocking vestige of the Criminal Tribes Act (CTA) era, which I believed had been relegated to the history books. Contrary to appearance, the Telangana Act was not a new Act, legislated after the creation of the State of Telangana in 2014 but a piece of colonial legislation inherited at independence. The Act’s purpose was to register and control eunuchs, in line with the thinking of its parental source that certain tribes were addicted to the commission of habitual offences. The logic was that in caste-ridden India people had been pursuing hereditary professions since time immemorial, weaving, carpentry etc. Naturally, there must be hereditary criminals too.
Queer Marriage Hearings- A Very Brief Summary
The Indian Supreme Court heard the queer marriage petitions between the 18th of April and the 9th of May 2023 and it had never been easier to be a part of the hearings. Lawyers huddled around podiums in court room 1 as the oral arguments streamed into the computer for 40 hours over 10 days, wherever you were. In this entry, I recount the most significant legal arguments made in the court.
There are two routes to marriage in India. The first under religious law and the second under secular law. Religious laws typically contemplate that both parties to the marriage belong to the same religion. The secular law, The Special Marriage Act, 1954 (SMA), provides a mechanism for marriage outside the framework of religious laws. It does not define marriage or expressly prohibit queer marriages. All it does is lay down the conditions of a valid marriage of two persons and the minimum ages of the male and the female. The chief question that the petitioners raise is whether the SMA can be interpreted to bring queer marriages within its fold.
This month’s blog concerns an appeal from an order of the Kerala High Court concerning a queer/lesbian couple. One of the partners filed a habeas corpus petition in the Kerala High Court alleging that their partner was being illegally detained by the parents who were against the relationship. When the petition came up for hearing in the Kerala High Court on the 13th of January, 2023, that court passed an order directing the District Legal Services Authority to interview the allegedly detained partner at her parent’s house to determine the truth of matter. If the interview were to reveal forceful detention, the court order stated, the detenue would be produced before it, but if no such concerns were revealed, the case would proceed no further. The Kerala court also stated that the detenue must attend counselling at an authorised counselling centre in the following days and had set a date for a next hearing.
This order was appealed in the Supreme Court on the 6th of February where counsel for the petitioner raised concerns about the ability of the detune to offer free and fearless views in the presence of her parents were she to be interviewed in the manner ordained by the High Court. The Supreme Court accordingly ordered that the detenue be produced before the family court in Kerala without any prior interview to provide her an occasion to frankly give her opinion on the nature of her stay at her parent’s. The judicial officers at the family court were ordered to prepare a report based on the interaction and provide it to the Supreme Court for the next hearing which was scheduled for the 17th of February. No further hearing has occurred before the Supreme Court but the court in parting stayed the orders of the Kerala High Court in this matter.
While the lawyers for the petitioners did raise concerns over the fundamental incorrectness of requiring the alleged detenue to undergo counselling, the Supreme Court order is silent on the issue. In the suggestion that the detenue should undergo counselling, there are echoes of the concern that had previously been raised following the 1st order of the S. Sushma decision of the Madras High Court. In that case, the judge, the parties, and the parents had all undergone counselling, at the behest of the judge so that prejudicial unlearning can happen through expert guidance, and grievances can be shared. The judge also arranged a mediation session between the parents and the daughters so that grievances and vulnerabilities can be shared in a potentially safe and open manner (though it must be remembered that this is the idealised version of mediation). The judge was at pains to clarify that the counselling was not meant to require the lesbian couple involved in the case to change themselves, but was to provide a space to challenge heteronormative assumptions for the family member and the judges. The mediation session was arranged in the same spirit. While appreciating the productive potential of the judge’s technique in that case, I had raised a concern that counselling and mediation should not be seen as a sine qua non for availing of the right to choose a partner, the basis of which lies in Article 21 as held in Navtej Johar in particular, and more broadly through a joint operation of the Puttaswamy, NALSA, and Navtej cases. The Supreme Court has not been possessed of a case where it can analyse the lived experiences of queer women and interpret the law accordingly. Habeas corpus and mandamus writs have been the typical ways in which queer couples, particularly queer women/transmen have sought to assert their rights against restrictive family structures and the criminal justice system which prevent them from taking advantage of the full range of rights relating to gender and sexuality. Now for the first time to the best of my knowledge, the Supreme Court has a discreet occasion to observe this interaction, and especially, to clarify the role of counselling in exercise of Article 21 rights to choose a partner.
Note: the couple in this case has been classified as a lesbian couple based on the information available in the Supreme Court judgment wherein the relationship was classified as a same-sex relationship. The Kerala court proceedings being unavailable, further details are unavailable, but the blog will be modified should some new information come to light.
This case is significant not only for transgender persons’ reservation rights post the 2019 enactment but also for settling an important constitutional question: what is the status of un-legislated Supreme Court directions?
At last count, there were 9 marriage petitions pending in various Indian High courts. Collectively, these petitions mount a multi-faceted attack on various Indian marriage laws for their failure to provide for queer marriages, either expressly or implicitly. In this blog, I identify the specific laws under challenge and summarise the main grounds of those legal challenges.
1. The Petition
This case followed the S. Sushma style of continuing mandamus issued by the court to monitor the progress on the NALSA directives, among other things. The cause of action was the denial of rations to certain portions of the transgender community during COVID. The petition, filed in the High Court of Patna in May 2020, prayed for 25 kgs. of rations for all members of the transgender community, monetary assistance for six months’ rent, a speedy grievance redressal system, and a one-stop facilitation centre. In this blog, I will summarise the proceedings under this petition.
Does a public appointment advertisement that fails to include transgender persons violate the constitution and offend the NALSA reservation direction? A single judge of the Andhra Pradesh High Court was faced with this particular question in this instance. Summarily, he found that though such advertisement offends equality, it does not violate the NALSA reservation direction because of certain context specific reasons. In this blog, I will deal with the equality analysis and the reservation analysis of the court.
In this edition of the blog, I will summarise the progress made on different institutional fronts with respect to the original and subsequent orders made in the S.Sushma case.