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Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.- Writ Petition Civil No. 494/2012

Note: Part 2 of the Kirankumar case discussed last month has been postponed 
to October, 2017 in light of the privacy decision.

1. THE PRIVACY DECISION

On the 24th of August, 2017, a nine judge bench of the Supreme Court of India decided whether there is a fundamental right to privacy. The question arose in the context of a legal challenge to the biometric information collected via the Aadhaar scheme. The Union of India, defending the scheme argued that there is no fundamental right to privacy in India which led the court to place a conclusive finding on the issue.

Summarily and without tracing its constitutional genealogy, the court decided that there exists, in the Indian constitutional scheme, an inalienable, fundamental right to privacy drawing life blood primarily from Article 21 of the Constitution of India, 1950 (“constitution”). However, the court clarified that this did not mean that the State could not interfere with the privacy of individuals.

The court noted that there may be legitimate State interest in the collection of data on individuals for reasons of avoiding cyber attacks, terrorist attacks, “protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.” [Conclusion 3(I)(5)]. However, privacy can be interfered with only upon the fulfilment of the following conditions: 1. There should be a law which defines the scope and conditions of such interference; 2. This law should identify the legitimate State aim sought to be protected; 3. The interference should be reasonable and proportional to the State aim sought to be achieved. Additionally, the proportionality requirement entails a ‘means to an end’ test i.e. there should be a “rational nexus between the objects and the means adopted to achieve them.” [Conclusion (3)(H)].  Though the court recognizes that both State and non- State actors can violate the privacy of an individual, the thrust of the majority decision seems to be to find a fundamental right to privacy only against the State.[1] However, there is confusion regarding this point.

2. IMPLICATIONS FOR THE 377 CASE

a. The 377 Case is Still Undecided

To be sure, the court did not decide the 377[2] issue. In fact, the court categorically stated that the 377 matter is pending before another bench and so they leave its validity be decided by the appropriate proceeding:

Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” [para 128]

b. Sexual Orientation Recognized as a Fundamental Right

The court noted first, that there is a fundamental right to privacy and then in several places noted that sexual orientation is an essential attribute of privacy.[3] The Supreme Court in National Legal Services Authority v. Union of India[4] [“NALSA”] had noted that self defined sexual orientation is, “integral to … personality and is one of the most basic aspects of self-determination, dignity and freedom” [NALSA, para 20], and had in Suresh Kumar Koushal[5]noted that S. 377 does not criminalize any particular sexual orientation.[6] However, neither of the judgments had gone so far as to expressly declare the right to sexual orientation as a fundamental right.

The reader will recall that the Supreme Court has already noted in NALSA that the right to self determined gender identity is a fundamental right.[7] Therefore, the sum total of all these cases is that now there is an expressly declared fundamental right to sexual orientation in addition to gender identity.

c. Personal Intimacies Also an Essential Entitlement under Privacy

The recognition of sexual orientation as a fundamental right should by itself lead the court to find S.377 unconstitutional as the section stands in the way of the fulfilment of a core aspect of sexual orientation—sex, with a person of choice, and in a manner of choice. However, for the avoidance of doubt, the privacy court has clearly stated that “personal intimacies” are an entitlement under the right to privacy [Conclusion P]. As per the Oxford English Dictionary, the word “intimacy” means familiarity, friendship, but also sexual intercourse.[8] If the right to privacy is an inalienable fundamental right and it includes personal intimacies then S.377 which criminalizes the personal intimacies of LGBT persons[9] cannot stand constitutional scrutiny because it will violate the fundamental right to privacy. This conclusion is doubly solidified in light of the court’s restatement of a crucial constitutional law principle: to withstand constitutional scrutiny, an impugned section should survive the scrutiny of all fundamental rights.

3. APPLICATIONS OF THE JUDGMENT MAY OPEN UP MARRIAGE AND PARENTHOOD FOR LGBT PERSONS

Finally, the court has recognized the following list of non- exhaustive entitlements under privacy: decisions about personal intimacies, family life, procreation, home and sexual orientation [Conclusion (3)(F)]. Privacy itself has been housed under primarily under Article 21. Article 21 guarantees life and liberty to all persons, regardless of sexual orientation and gender identity. Accordingly, the aforementioned entitlements also extend to all persons, regardless of sexual orientation and gender identity. This means that the court has affirmed that even LGBT persons have a fundamental privacy right to home, procreation, family life etc. This logic may open up avenues for LGBT persons to argue for the extension of marriage rights, surrogacy rights etc. to them as well.

[1] This appears more clearly in J. Chelameswar’s concurrent opinion wherein he clarifies that this decision is concerned with the question of whether there exists a fundamental right to privacy against the State.  However, Justice Kaul states that the right to privacy is available against both State and non- State actors. Thus, the ensuing confusion.

[2] All references to 377 in this blog mean the issue of the constitutional validity of S. 377, Indian Penal Code, 1860 which criminalizes “carnal intercourse against the order of nature”, and which is pending in the Indian Supreme Court.

[3] For example, paragraph 126 and Conclusion (3)(F) of the majority judgment.

[4] National Legal Services Authority v. Union of India and Others (Writ Petition (Civil) No. 400/2012).

[5] Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013).

[6] Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013) para 38.

[7] “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” [para 69, NALSA].

[8] https://en.oxforddictionaries.com/definition/intimacy.

[9] S.377 criminalizes the sexual lives of all those persons, whether or not LGBT, who have non-peno-vaginal sex. However, in keeping with the scope of the website, I have referred only to LGBT persons in the main text.

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Kirankumar Rameshbhai Devmani v. State of Gujarat [(2014) 71 VST 555 (Guj)]- Part 1

On the 28th of February, 2014, the Gujarat High Court sitting as a division bench considered whether the Gujarati film Meghdhanushya, which was on the topic of homosexuality, qualified for the entertainment tax exemption given to all Gujarati films since 1997. In brief, the court decided that the film qualified for the exemption as per the government policy regulating the issue, and that it was not caught within any of the exceptions to the policy. However, there are three remarkable features of this case: 1. the court’s attempt to give meaning to the morality of the constitution[1], and to apply this meaning in this case; 2. how legal incompetence at official levels can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. In this edition, I will summarize the arguments of both parties and the decision of the court. In the next edition, I will address the three remarkable features abovementioned.

WHAT THE FILM WAS ABOUT

Summarily, the film was about a boy who discovers that he is gay. Through the medium of this boy, the film depicts the various difficulties faced by gay persons in society.

THE STATE POLICY

The State of Gujarat framed a scheme dated June 8, 1999 exempting all Gujarati colour films produced after April 1, 1997 from entertainment tax. This measure was intended to lower the ticket prices of Gujarati films in the cinema halls, giving them a fighting chance against the Hindi film industry. As per para 4 of the policy, the only films that could not receive the exemption were films that depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.” The petitioner, being the producer (and director) of the abovementioned film, applied to the Commissioner of Entertainment Tax (hereinafter “commissioner”) for the tax exemption. After several rounds of back and forth with the commissioner, the petitioner’s application was rejected. The petitioner challenged the refusal in the present case arguing that as per the 1999 policy, his film should receive the tax exemption, and that it did not fall within any of the exceptions abovementioned.

ARGUMENTS OF THE STATE

It is to be noted that the commissioner was obligated to base his decision for refusal on the grounds mentioned in the exceptions to the policy. However, he did not. His reasons for refusal did not pin point the exact policy reason why the film was being not eligible for exemption. The reader will note that the only reasons for refusal were either: 1. Evil customs; 2. Blind faith; 3. Sati; 4. Dowry; 5. Such social evils; and 6. Films against national unity. However, the commissioner’s reasons did not pertain to any of these grounds. Similarly, the State counsel’s arguments also did not pertain to any of these grounds though it is to be noted that the State counsel did attempt to make two thin arguments on policy grounds which he was not able to substantiate as per the judgment. As a result, the court had a more convoluted job ahead of itself. Instead of analyzing whether the reason for refusal reasonably fit into any of the grounds for exception, it had to counter the generalist objections of the commissioner and the State which neither pertained to policy, nor stemmed from it. As the court replies to each argument raised by the commissioner’s final order and the State counsel in his defence of the order, I will not separate the arguments by the commissioner and State. Instead, I will present them jointly as the total set of objections raised by the State and its instrumentalities to providing the tax exemption to the film.

  1. The tax exemption is to be granted to films providing entertainment or carrying a “useful message” to society. Granting an exemption to such a film will create “friction between members of the society holding diverse ideologies.” This will likely cause “deterioration of law and order.” [para 6(i) of the judgment].
  2. The topic of the film is controversial and “no decent family can watch the film together.” [para 6(ii) of the judgment].
  3. The core of the film is to promote homosexuality which is not only a crime (S. 377, IPC)[2] but also a social evil.
  4. The film producer is free to exhibit the film even without the tax exemption.
  5. Granting tax exemption to the film would suggest that the government endorses the homosexual ideology.
  6. Homosexuality increases the incidence of AIDS.
  7. The film is a threat to national unity.

ARGUMENTS OF THE PETITIONER AND THE AMICUS CURIAE

The arguments of the petitioner’s counsel are not outlined in the judgment but the amicus argued three points:

  1. The film does not fall under any of the exceptions to the policy and therefore should receive the tax exemption.
  2. If the State denies exemption to the film without providing an intelligible differentia and a reasonable nexus, then it violates the Article 14 equality guarantee of the constitution by discriminating against the present film and other Gujarati films which have received the exemption.
  3. Denial of the tax exemption places a heavy financial burden on the producers of the film and indirectly restricts the Article 19(1)(a) freedom of speech and expression through an extra constitutional route.

DECISION OF THE COURT

The court noted that providing the tax exemption was the rule and not providing it was an exception. The exemption was not a matter of discretion in that sense. To be disqualified from the exemption, the film had to necessarily fit into one of the categories mentioned in the policy.  Most importantly, the court noted that its decision was guided by the policy alone and not by its own personal opinion on homosexuality. In the words of the court, “we have no personal views and beliefs. Our only personal view is to uphold the rule of the law…” [para 51 of the judgment]. Accordingly, the court noted that:

  1. The purpose of the government policy is to grant tax exemption to all Gujarati colour films made after April 1, 1997, en masse, and not just to films which send “useful” messages to society. Here the court had to contend with the preamble to this policy which outlined its purpose as the promotion of high quality Gujarati cinema. However, the court concluded that the tax exemption is given to all films and not just high quality films or films judged by any other standard. Accordingly, the true purpose of the policy was to enable Gujarati films to compete with the Hindi film industry by making them a little cheaper to watch. There was no evidence of a law and order threat by allowing the tax exemption to the film. Neither the State nor the commissioner had presented any data to support this claim and the police and the Home Ministry had expressed no fears akin to the “spark in the powder keg” standard necessary to invoke an Article (19)(2) restriction on the airing of the film.
  2. Regardless of how controversial a topic is (the court used the phrase “thought provoking”) a topic is, a film can only be denied exemption if it fell into the exception categories. The court noted that a film can be denied exemption if it promotes an evil custom. However, the court noted that to fall within this exception category, a thing needs to be a custom first. Homosexuality was not a custom. Therefore, it could not fall within this category. The other categories of blind faith, dowry, sati and such evil practices, do not apply to this case. The court noted that perceptions change from time to time and generation to generation. What a family can and cannot do together may also change accordingly, from time to time, generation to generation, and from region to region. In any case, that was not a ground to deny a film exemption.
  3. The film does not promote homosexuality. It merely talks about the struggles of being a gay person in society. The court concludes that, “[e]ven a person with homosexual preference as human being has right to life and liberty guaranteed under Article 21 of the [c]onstitution.”[3] This point however, raises the following question: would the film have been denied exemption if it promoted homosexuality? In the Suresh Kumar Koushal case [para 38], the Supreme Court had held that it is not a crime to be gay; only the sex act is criminal. Movies do promote some messages, intentionally or unintentionally. A film like Bahgban, for example, does convey what it means to a good son. A film like Hum Saath Saath Hain, does convey, what it means to have a happy marriage, and a happy family. Similarly Hindi films have traditionally conveyed other messages about a good wife, good love etc. Arguendo, this film promoted homosexuality, would it have been denied the exemption? Arguably not as it does not fit into any of the exception categories which are admittedly the only grounds on which tax exemption can be denied.
  4. The question was not whether or not the producer could still exhibit the film but that whether the film qualified for tax exemption.
  5. The only ideology the government endorses is that all Gujarati films produced after April 1, 1997 are eligible for tax exemption unless they fall in any of the exception categories. Granting of the tax exemption does not signify that the government endorses the message of the film. Lots of films are released every year and the government cannot be said to endorse the message of each of the film. The government is a neutral by-stander. Significantly, “[e]ndorsing one’s right of expression does not imply endorsement of his point of view.” [para 50 of the judgment].
  6. Men having sex with men have a higher incidence of AIDS because a lot of people do not come out in the open to seek medical facilities or help owing to fear of law enforcement agencies.
  7. There is no evidence to prove that the airing of the film will any way hamper national unity nor was the court able to see how the airing of this film could do so.

Accordingly, the court noted that the film was illegally denied tax exemption available to all other films in the same category, and that there was no reasonable basis to treat this film differently, which lead to the violation of Article 14 of the constitution. Additionally, this illegal taxation made this film more expensive to watch which would severely drain the audience for the film and in this manner place a restriction on the freedom of speech and expression of the film producer, which is neither reasonable, nor sanctioned by law, and for those reasons violative of Article 19(1)(a) of the constitution. In keeping with its decision, the court ordered the State to provide the film the requisite entertainment tax exemption and issue a certificate to that effect.

[1] All references to the constitution in this post refer to the Constitution of India, 1950.

[2] Indian Penal Code, 1860.

[3] Para 27 of the judgment.

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Sweety (Eunuch) v. General Public [AIR 2016 HP 148]

On the 22nd of June, 2016, the Himachal Pradesh High Court sitting as a single judge bench considered the question of the devolution of a Kinner’s intestate[1] property when the religion of the deceased is unknown. In brief, the court decided that such property would devolve upon the guru. However, several factual considerations lay before the court making this decision. I will first summarize the decision and then ask if the court would have decided the same way had the factual matrix been different.

WAS THE DECEASED TRANSGENDER OR INTERSEX?         

Summarily, Rajia/Razia/Ratni Nani and Desh Raj were two eunuchs. The High Court has used this terminology throughout the judgment. It is unclear what it is referring to; is ‘eunuch’ being used to signify some biological characteristic (albeit derogatorily), or, is it being used to refer to the gender identity of the deceased? Eunuch is a term used to signify a castrated male. There is no evidence in the case that the deceased were castrated. It seems however, that the deceased were actually intersex people (intersex persons may or may not be transgender). It is also accepted that the deceased belong to the Kinner community. Consider the following sentence in the judgment:

“It was averred that there is a custom in the society governing the Kinners that at the time of the birth of a eunuch (kinner child), it is generally taken by the Guru kinner of that area and she/he is brought up by the said Guru.” [Paragraph 1].

Since it is impossible to tell the gender identity of a new born child and the judge relies on the abovementioned custom in this case, the best understanding is that the deceased were intersex (and their condition was externally apparent—to trigger this custom). Additionally, it is unclear whether this property was jointly held by the two deceased persons in question or whether the matter concerns the intestate property of both these persons. Since the judgment does not make it clear, for the purpose of this note, I assume that the question that concerned the court related to the independent intestate property of two deceased Kinners.

ESTABLISHED FACTS

On facts, the court was able to establish the following:

  1. The deceased were eunuchs (intersex, as we have determined) and a member of the Kinner community.
  2. The appellant Sweety is the guru of the deceased.
  3. Her status as the guru is backed by documentary evidence. Her name appears as the guru in the deceased’s bank account, ration card etc. These are the only 2 documents mentioned by the court.
  4. Sweety’s claim is uncontested by anyone although the court had sent out a notice of the case to the general public. In fact, notices were issued both by the trial court in Himachal that heard the case in the first instance and the High Court of Himachal Pradesh that presided over the present judgment.
  5. The religion of the deceased is unknown.
  6. The deceased died intestate.

HOLDING OF THE COURT

The lower court assumed the religion of the deceased to be Hindu and pronounced that the devolution would be governed by the Hindu Succession Act, 1956 (HSA). The court did this on the basis of a presumption that the name of the deceased sounded like a Hindu name. The Himachal High Court undid this decision and following the guru- chela parampara declared the guru Sweety to be the legal heir of her deceased chelas’ prpoperty. However, the key point of confusion is this: had the deceased been proven to be a Hindu, would her property have devolved following the laws of succession of a deceased intestate female (assuming, of course, that the deceased identified as a woman, as symbolized by her name)[2], or would her property still have devolved following the guru-chela parampara? In paragraph 5 of the case, the court notes that the guru had led evidence to show that, “in matters of succession eunuchs were governed by the guru- chela parampara” but it is not clear from this that this would have been the case even if a chela was shown to belong to a religion. This case was also relatively less complex as the court despite sending several notices was unable to locate any other relatives of the deceased. Therefore, the claim of the guru was uncontested.[3]

The closest another court has come to a similar question has been in the case of Illyas and others v. Badshah, alias Kamla (AIR 1990 MP334). Here a eunuch (again, it’s unclear what this means, the court uses this term) Munnilal died willing some property they inherited from their guru Nasiban, to one Abdul Gafoor who subsequently sold it. The buyers claimed ownership to Munnilal’s land. On the other hand, the Munnilal’s chela, Kamla claimed ownership of the property citing the guru- chela parampara and also stating that the property one obtains from the guru cannot be passed on outside the eunuch community. However, in this case, the religion of the deceased was clear: the deceased was a Muslim. The central question therefore was, how does the property of a Muslim eunuch devolve: would Munnilal’s will be carried out or will the guru- chela parampara cancel the effect of the will? In this case, the court found that Abdul Gafoor was unable to establish the authenticity of the will. However, even if he had been able to do so, the custom of the eunuch community would have regulated the testamentary power of a Muslim to will away property. In other words, a Muslim eunuch can will away property in accordance with Muslim law, but if the property is inherited from the guru, it cannot be willed outside of the community, although it may be willed to a person other than the chela. So much for community property, but would the same judgment hold for property privately acquired by a eunuch, as is the present case?

Therefore the situation seems to be that we now know that the guru- chela parampara will trump personal law in the case of community property, and govern the devolution of individual property in the absence of a known religion. However, we still don’t know what happens to a transgender[4] person’s individual property in the presence of a known religion and membership of community: still our key point of confusion.

OTHER POINTS OF CONFUSION

Is the case suggesting that one loses their religion merely by fact of becoming a member of the kinner community? It is not immediately apparent whether the court has followed the guru chela parampara because it is unable to establish the religion of the deceased or because upon membership of such a community, one servers ones tines with their religion. There have been no efforts by the High Court judge to fathom the religion of the deceased. The deceased also had no known relative which may have further compounded the religion question. However, if indeed, that is the suggestion of the case then though this case may have led to the preservation of the guru-chela parampara, its implications for the right to religion should not be neglected. The deceased, whatever her religion might have been at birth, is adjudicated as having no religion at the time of her death. No proof of out of faith conversion of any other ritual seems to have been produced as evidence of her not professing any religion. This in turn raises two future implications:

  1. Does a transgender person lose their religion merely by gaining membership of a particular community (for example, Kinner, Hijra etc.)?
  2. Consequently, does this result in the loss of rights associated with religion—inheritance, right to visit holy places etc.?

[1] Without a will.

[2] The High Court rubbished the conclusion of religion drawn from a mere name and accordingly, the irony of the assertion made above is not lost on me. However, the only point that I attempt to make above is that though in Shastric law given by Vishnu, Manu, and Yajnavalkya, to name a few, a eunuch (unclear what the Shastric law meant by this term, perhaps an intersex person) would be disqualified from inheriting ancestral property, the Hindu Succession Act, 1956, which now governs intestate succession for Hindus, does not place any such disqualification on ‘eunuchs.’ Moreover, even in the worst case scenario, if being born intersex is considered a defect, deformity or a disease, S. 28 of the Hindu Succession Act, 1956 clarifies that no defect, deformity, or disease shall disqualify a person’s eligibility to inherit. In so doing, the Act occupies the field and any future question on the capacity of an intersex Hindu to inherit would depend on the Hindu Succession Act, 1956 and not the Shastric Law. The question of the devolution of property of Hindu ‘eunuchs’ is untouched by Hindu Succession Act, 1956, and leads one to conclude that the rules of devolution remain the same.

[3] Incidentally, as per Hindu Law, if a deceased has no heirs, the property devolves to the State.

[4] Since the Supreme Court describes transgender person to include eunuchs, intersex etc. A limited construction of this judgment could of course suggest that it governs intersex persons in Kinner communities and without established religions, and not the entire transgender community.