On the 1st of June, 2017, a single judge bench of the Madras High Court directed Anna University to change the name and sex in the records of the petitioner, a transgender man. In this post, I will summarize the case with a focus on the different medical processes “on account of” which the court passed this direction. Additionally, I will seek to demonstrate that:
- In the reported cases post NALSA which require a determination of gender identity for the allocation of rights, courts have usually relied on sex re-assignment surgery (SRS) and anatomical approximation post SRS, but not on psychological tests.
- Government departments in different states do not follow any uniform procedure though it is not unlikely that the department may ask for a SRS certificate.
- The Transgender (Protection of Rights) Bill, 2016 [“2016 Bill”] has the potential to turn the NALSA self- determination principle on its head by empowering a District Magistrate and a screening committee to certify whether a person is transgender.
- MEDICAL PROCEDURES UNDERTAKEN IN THE PRESENT CASE
The petitioner, assigned gender female at birth, “always felt and lived like a man”, as the High Court put it. He underwent the following gender affirmative procedures:
- A gender identity disorder diagnosis
- Hormone replacement therapy
- Psychological testing and certification declaring petitioner fit for surgery
He received a certificate from the doctors after the surgery attesting to the fact that the petitioner was transgender and had undergone SRS. After these procedures, the petitioner changed his name to K. Gowtham and issued a public notice to the effect by a publication in the in the Tamil Nadu Gazette. He also obtained an Aadhar card in his male name. Thereafter, he made a written representation to Anna University to change his name. The University, citing lack of provision or precedent to effect the change, required that the petitioner present a transgender certificate from the District Magistrate, per the proposed 2016 Bill.
The High Court found that “on account” of the SRS and the subsequent doctor certificates, the petitioner, “has become a complete male.” [para 2]. Accordingly, the High Court directed the university to change the name and sex on the records and certificates of the petitioner.
- THE COURT’S RELIANCE ON MEDICAL PROCEDURES IS IN VIOLATION OF THE LAW
Not only does the High Court rely on the SRS and medical certificates, it also presumably relies on the anatomical correctness of the post-surgery sex organs when it declares that, “the petitioner has become a complete male.” This judgment doubly violates NALSA by: 1. Granting the prayer arguably only on terms ruled illegal by NALSA (the SRS); and 2. Going a step further to presumably see how successful the surgeries had been in replicating the male anatomy.
- THE COURT’S RELIANCE ON THE ANATOMICAL SUCCESS OF THE OPERATION IS INCORRECT IN LAW
Arguably, the court’s declaration that the petitioner had become a “complete man” per medical certificates weighed on its decision to declare that the petitioner’s records be changed. I have argued above that such reliance is illegal as per NALSA.
However, this decision needs to be seen in the light of another development as well. The procedure laid down by the 2016 Bill for the recognition of a person as transgender has the potential to become heavily medicalized, in contravention of the NALSA ruling. Whereas the thrust of the NALSA judgment was on self- determination, the proposed Bill empowers the District Magistrate (DM) to certify whether a person is transgender (Ss.4-8). Though the full procedure of how this shall be done has not been laid out in the Bill, the composition of the District Screening Committee on whose recommendations the DM will certify, may give us some indications. The committee shall comprise:
- A Chief Medical Officer;
- Social welfare officer;
- Psychologist or psychiatrist;
- Representative of transgender community;
- A government officer.
The requirement of doctors, both medical and psychological, is without any basis in the NALSA judgment. NALSA relies on self- determination rendering a medical or psychological opinion on whether a person really is transgender, unnecessary. While NALSA’s reliance on the phrase “psychological test” may lead some to believe that transgender persons can be made to undergo a psychological exam to corroborate the fact of their gender identity, the judgment, if read in full, arguably uses the phrase “psychological test” to refer to the internal self belief of a person, a belief in the realm of the psyche, and not an actual psychological test understood in clinical terms. Justice Radhakrishnan’s mention of a psychological test must be read in light of his explicit statement that, “Determination of gender to which a person belongs is to be decided by the person concerned.” [Page 84]. Moreover, the judgment never identifies the role of a psychologist or psychiatrist while upholding the right to self- determined gender. The only instance of the usage of the word psychiatrist in the judgment is by Justice Sikri when he is describing what SRS entails. He also arguably does not identify the role of a psychiatrist or a psychologist in gender identity because he bases his judgment on the fundamental principle of an individual’s “right to choose” [page 91]. Finally, the Supreme Court’s direction 2 clearly states that a transgender person’s right to self identified gender is upheld, placing the obligation on the government to provide legal recognition in accordance. A psychological or psychiatrist exam would militate against very spirit of a self identified gender identity. The reported judgments post NALSA seem to have understood this requirement correctly. Either deliberately or inadvertently, they have not required the results of a psychological exam before upholding the rights of a petitioner to self identity as transgender, even as they have required proof of SRS, and a “successful” SRS to grant these rights [See table 1].
POST NALSA CASES IN WHICH THE DETERMINATION OF GENDER IDENTITY IS IN ISSUE
In this table, I have excluded cases in which the court incorrectly equated intersex with transgender and intersex claimants did not seek to identify in a gender different from that assigned at birth. Additionally, I have excluded cases in which the determination of the transgender identity of the parties is not a legal issue.
|Case||Reliance on SRS||Reliance on Anatomical Resemblance||Reliance on Psychological Exam|
|Shivam Santosh Dewagan
|Yes||Arguably No but details of medical certificates examined are not reproduced in judgment.||No|
Additionally, it is not uncommon for government departments to ask for SRS, as reported online or shared on listservs. See table in this Doc. This table also demonstrates that it is unclear what additional documents transgender applicants need to produce in addition to the published procedure.
In the present case, the court did not pay heed to the university’s demand for a DM certificate because the 2016 Bill has not yet become law. However, the section, if passed, may cause the right of a transgender person to self identify to change hands and become the right of the DM to identify a transgender person. This section has faced stiff opposition from activists, lawyers and scholars working in the field. See, for example, this collection of critiques of the 2016 Bill. If the 2016 Bill passes in its current form, it is very likely that the principle of self-determination of gender identity will have little or no meaning; doctors of the body and mind will make these decisions in scenes that will remind us of Foucault’s Birth of the Clinic.
 A recent study has suggested that the term Gender Affirmative Surgery better signifies how transgender persons experience this surgery. However, for the present blog, I use the term SRS for reading consistency between court rulings and my critiques because the courts have been using SRS.
I am grateful to Dr. L. Ramakrishnan (Ramki) for extensive discussions around this blog and for pointing me to the collection of critiques of the 2016 Bill. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.
On the 27th of April, 2016, a single judge bench of the Chhattisgarh High Court granted bail pending trial in a rape case. The prosecutrix, a transgender woman who had undergone sex re-assignment surgery (“SRS”) commenced a sexual relationship with the accused upon a promise to marry. When that promise was broken, she lodged an FIR alleging rape, among other things. This case concerned the bail application of the accused who had been imprisoned following the FIR. Sexual relationships based on (later) broken promises to marry may qualify as rape but this blog is not an opinion on that issue. Neither is it an opinion on bail proceedings. Instead in this blog, I focus on two of the reasons for the grant of bail: 1. The court’s incorrect finding that the prosecutrix was not a woman only because all her female sex organs had not fully formed post SRS; and 2. The court’s incorrect implication that the prosecutrix could not be raped only because her vagina was not fully developed. I argue that these findings are incorrect in law and end up excluding certain legal subjects from the protection of rape law.
REASONS FOR GRANTING BAIL
Before expanding on the reasons for bail, we recall that rape, as per the Indian Penal Code, 1860 (“IPC”), is a crime that can be committed only against a woman. The judge granted bail for the following reasons: 1. She was not entirely a woman i.e. “…her sex ha[d] not changed in tune with gender characteristics from male to female even after SRS surgery.” 2. According to her medical report, her vagina was not completely formed and her secondary sexual characteristics were still developing; 3. There was a year long delay in filing the FIR 4. No semen was found on her clothes; 5. No custodial interrogation of the accused was required; and 6. The prosecutrix was a 23 old adult. I will deal in depth with reason 1 and 2 and make some general observations about reasons 3-6 in respect of bail proceedings. Bail proceedings are not a determination of the merits of the case i.e. whether the accused is guilty or not. Generally, in non-bailable offences like rape, the accused cannot demand bail as a matter of right. Moreover, in cases such as rape, if there is an appearance of guilt, bail shall be denied. Therefore, it is common, to my understanding, for courts to consider the kinds of evidence it did to arrive at the bail decision. This is despite the fact that some of the evidence they examine may be thrown out as inadmissible at the trial stage, or the conclusions drawn from them may be legally incorrect as I will demonstrate below. However, in this blog, I am not focussing on the merits or demerits of such kinds of bail proceedings.2.
COURT’S INCORRECT CONCLUSION THAT THE PROSECUTRIX WAS NOT A WOMAN (REASON 1)
The question in the case was one concerning rape—primarily, whether sexual intercourse on a promise to marry is rape, if the promise is later broken. The short legal answer to that question is yes, it may be rape. Now, though he had been chargesheet-ed on a rape complaint (S.375, IPC), the accused argued that the prosecutrix was not a woman because her sexual characteristics had not developed. Accordingly, he could not have raped her. Examine this report from the medical officer in which he found that the vagina and the secondary sexual characteristics of the prosecutrix had not fully developed:
“Examine [sic] patient is a transgender [sic] has undergone sex change surgery 3 years back around 2013 at Dr. Kalda Clinic. Second Sexual Character on developing stage, has not started menses. Axillary hair+, Vagina is incompletely formed. No sign of injury seen over the anal region or vaginal area. 2 slides prepared from the anal region area. From the above clinical finding about sexual intercourse cannot be told.” [para 7]
The prosecutrix had undergone SRS in 2013. The Supreme Court in 2014 had declared that all transgender persons had a fundamental right to their self identified gender and any insistence on SRS is both illegal and immoral (Directions 2 and 5). Therefore, a transgender person can self indentify as either a man, a woman or third gender (Direction 2). If SRS was not required then there was no reason to medically examine the prosecutrix as to her sex characteristics. Her self-determination as a woman should have been sufficient to place her in the category of “woman” for the purpose of the allegation of rape. Some transgender persons undergo the SRS and some do not. However, that is not a legal requirement to be recognized as either a transgender or a woman as per the NALSA judgment. Instead, this court erroneously relied on the exposition of J. Sikri in NALSA on the experience of SRS. In para 103 of NALSA, J. Sikri explained that SRS is not an overnight process. By this the judge only sought to explain the steps involved in a SRS operation—from the decision, to the hormone therapy and the psychiatric evaluation and then the operation. He did not wish to point out that even after the SRS, the sexual features do not develop overnight, and even if he did, the directions abovementioned given by the full court render inquiry into the state of sex characteristics irrelevant. Therefore, the court’s conclusion that the prosecutrix was not a woman is incorrect in law.
STATE OF DEVELOPMENT OF SEX ORGANS AND IMPLICATIONS OF SUCH INQUIRY: CREATION OF LEGAL SUBJECTS WHO CANNOT BE RAPED (REASON 2)
Reason 2 for the grant of bail stated that the vagina of the prosecutrix was not fully formed, implying that she could not be raped. The court stated: “…further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under Section 375(a) of the Indian Penal Code… this Court is of the view that it is a fit case to release the applicant on bail.” [para 12]. 375(a) of the IPC states that, “a man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person…”
First, rape under 375(a) can be committed by insertion of penis into places other than the vagina as well: the mouth, the anus, the urethra. There was no reason therefore, for the court’s exclusive focus on vaginal penetration under the 375(a) charge. To be sure, the court did observe that there were no signs of anal injury. Not only is this still an incomplete coverage of 375(a), lack of injury is not determinative of innocence in rape cases—especially ones of this sort. Irrespective, it was not lack of anal injury but absence of a fully developed vagina that featured in the list of reasons provided by the court for granting bail.
Second, 375(a) penalizes non consensual penetration into the vagina, and not non-consensual penetration into a medically correct vagina. Inquiry into the medical correctness and dimensions of the vagina not only misses the point of rape law which punishes “Offences Affecting the Human Body” [Chapter under which Rape Provisions are housed], such inquiries end up creating legal subjects who “cannot” be raped: post- SRS transgender women with incompletely formed vaginas, intersex women with ambiguous genatalia and biological women whose vaginas don’t fit the medical category, for example. For this prosecutrix such a determination has created this quandary: though the court is treating her as a woman because she has undergone the SRS, and the court refers to the prosecutrix with a feminine pronoun, it is implying that the prosecutrix cannot be raped because she does not have a fully formed vagina. At the same time, her SRS operation has taken her out of the category of a man and therefore S. 377, IPC is not attracted. Therefore, she may have been raped but accused, if found guilty, will neither be punished for rape (376, IPC) nor under 377, IPC. Finally, if courts are going to require a medically correct vagina standard to grant relief in rape cases, how will law address rape cases of transgender women who do not undergo SRS? One immediate answer is that such cases may be handled under 377 but this solution leaves the transgender woman divided against herself, a woman for all purposes, but a man for the purposes of rape law. Lawyers, judges, legislators and others in the business of law need to know more about how transgender persons understand their body before they can formulate satisfactory solutions for their criminal law needs.
 Para 12.
 See Section 437 of the Code of Criminal Procedure, 1973: When Bail May be Taken in Case of Non-Bailable Offence.
 For a general understanding on the jurisprudence behind bail see K.N. Chandrashekharan Pillai, “Bail” in R.V. Kelkar’s Criminal Procedure (Eastern Book Company, 2014) 289-344.
 For a contrasting viewpoint, see Abhinav Sekhri, “Reversing the Presumption of Innocence- Part III” http://theproofofguilt.blogspot.co.uk/2015/05/reversing-presumption-of-innocence-part_9.html
 The key question to be answered in this situation is whether the prosecutrix consented to the sexual intercourse only because she believed the accused’s promise to marry to be true? Without expressing an opinion on whether this is a good test, I present some preliminary observations on how the Indian courts apply this test. The court applies the test in this fashion: 1. If there are other reasons which could have influenced her decision, the courts have not found sex based on broken promises to marry as rape. Other reasons include love between the parties, absence of evidence that the accused never intended to keep his promise to marry when he made it, prosecutrix’s consent despite knowledge of insurmountable caste differences etc. 2. There is no hierarchy of reasons– the prosecutrix may have loved the accused but consented to a sexual relationship only because he promised to marry her; the court does not go into this inquiry. 3. The court’s real test appears to be a search for a dispassionate (pun intended) yes in promise to marry cases which connects with how female sexuality is construed. The woman is construed as a passive recipient of sex and therefore any desire on her part to have sex which pre-dates the promise counts against her rape charge. Key cases on this point are: Uday v. State of Karnataka AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar AIR 2005 SC 203; Jayanti Rani Panda v. State of West Bengal and Anr. 1984 CriLJ 535.
Curiously, presence of factors other than the promise to marry lead the court to conclude that the prosecutrix could not have really relied on the promise to marry before having sex; love, caste differences etc. weaken the authenticity of the promise. There is of course another way to read these factors which is this: could not the love, the desire to united over caste differences lead the prosecutrix to believe even more in the promise to marry? Not only does the court promote a cynical view of love and sex, it places the burden of this cynicism on the prosecutrix: the prosecutrix should have been aware that the promise to marry could not have been real owing to caste differences; the court doesn’t conclude or raise a presumption that the accused never intended to marry, owing to insurmountable caste differences, when he promised to marry [see this claim esp. in light of how S.114A of the Indian Evidence Act, 1872 shifts the burden of proof on the accused and presumes lack of consent when the prosecutrix in a rape trial alleges lack of consent.]
My thanks to Arushi Garg for pointing me in the direction of the key cases on this topic, and also for the enlightening discussion on the theory and practice of cases concerning sex on a promise to marry. Arushi is a doctoral student in the law department at the University of Oxford. Her research focuses on conviction rates in rape cases in Delhi.
In Part 1 of this post, I summarized the arguments of the parties and the decision of the court. In this part, I will deal with the three remarkable features of the case I had mentioned before: 1. the court’s attempt to give meaning to the morality of the constitution, and to apply this meaning in this case; 2. legal incompetence at official levels, and how it can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. To refresh the memory of readers, the present case involved a film about a boy who discovers that he is gay. The film, through the boy, depicts various difficulties faced by gay people in society. The film was refused tax exemption given to all Gujarati colour films and the petitioner who is the producer and director of the film challenges this refusal. See full factual scenario in Part 1.
- CONSTITUTIONAL MORALITY
In Part 1, I had explained how the court found the withholding of tax exemption as illegal and subsequently that such withholding would amount to a violation of the free speech and expression right under Article 19(1)(a) of the constitution. To more fully explain how diverse points of view can co-exist in democratic constitutional schemes, it delved into the morality of the constitution. It found that the peaceful co-existence of a “plurality of ideologies” was not only one of the aims but also one of the guiding principles of our constitutional scheme [para 31]. In the words of the court:
“In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different viewpoints are accepted and respected. In a topic as one on hand, there are bound to be as many view points as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully co-exist.” [para 31].
It further went on to state that this plurality of ideologies allowed different viewpoints to stand so long as they did not violate the constitution. Such reasoning goes a long way to re-establish the constitutional values on which the Indian constitution has been drafted and to re-position the judge as a dispassionate protector of those values. This is especially important to motivate State actors (eg. government employees, judges etc.) to set clear boundaries between their personal beliefs and the beliefs of the constitution and to remind them that when they are acting in the capacity of their office, the only set of values that they can legitimately chase are those enshrined in the constitution. Contrast this with the Suresh Kumar Koushal case in which the court called the LGBT population a “miniscule fraction” [para 43] arguing for “so called rights” [para 52] betraying a sense of antipathy and revulsion for the community. For further reading on the kind of language used by the Supreme Court in the Suresh Kumar Koushal case see, Danish Sheikh, “The Quality of Mercy Strained: Compassion, Empathy and Other Irrelevant Considerations in Koushal v. Naz” (2013) 6 NUJS L Rev 585.
Apart from reminding institutional actors of their duties, the court has also re-assured them that their upholding a particular right would not mean their personal sympathy for the right, as long as the right is merited by the constitution. Such logic would attempt to persuade unsympathetic judges to apply constitutional standards and abjure their personal opinions when in the business of adjudication.
“Endorsing one’s right of expression does not imply endorsement of his view point. In any vibrant modern democratic society, divergent viewpoints is not only inevitable but is considered as a healthy sign. Diverse and antagonistic viewpoints can coexist and survive side by side peacefully in a modern cultured society.” [para 50].
This re-assertion of constitutional values and not personal viewpoints on which a case ought to be decided is reminiscent of the reasoning of the Delhi High Court in the Naz case. There, the Delhi High Court expressly stated that regardless of popular opinion on the topic of homosexuality, S. 377 should be held to be unconstitutional if it did not pass the threshold of fundamental rights:
“Popular morality, as distinct from constitutional morality derived from constitutional values, is based on shifting and subjecting [sic] notions of wrong and right. If there is any type of morality that can pass the pass the test of compelling state interest, it must be constitutional morality and not public morality” [para 79].
- OFFICAL INEPTITUDE
The second remarkable thing about this case is how clearly it demonstrates official ineptitude and delaying tactics used by authority figures. In this case, there was a clear policy highlighted for refusing tax exemptions. 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.” There were no other reasons to refuse the exemption and there was no discretion in this matter. Yet, the Commissioner of Entertainment Tax (“Commissioner”) refused the exemption to the film on grounds that it had been given an A certificate by the Censor Board, a reason beyond the scope of the policy. In order that the he may make a representation against this wholly illegal reason, the producer approached the Commissioner either in person or through letters on the 24th of April, 2013, 26th of April, 2013, 29th of April, 2013 and the 16th of May, 2013 before he could hear back from him. He even penned a letter to the Chief Minister complaining about the non-consideration of his requests for representation. Therefore, 5 letters had to be written only to get attention to an application which had been refused on grounds not even present in the policy. These dates are taken on record by the court in the case.
After multiple letters were sent to him, the Commissioner ultimately replied asking the producer to delete certain dialogues and mute certain words, and to submit a signed affidavit to that effect before his film could be tax exempt. The Commissioner was not empowered to do so and acted beyond the scope of his powers. When the producer refused to comply, the Commissioner once again rejected the exemption application. Even when the Ministry of Information and Broadcasting directed the Commissioner to identify a “basis” for his refusal, the Commissioner failed to fathom a policy reason for refusing tax exemption. Instead he content himself with reasons such as the film did not have a useful message, it could create friction between members of society, it was controversial, it promoted homosexual ideology, and other reasons highlighted in Part 1.
The law on paper may provide limited reasons for refusing tax exemption but a private actor is caught in a frustrating legal web when authority figures act clearly outside the scope of those powers and assume for themselves grounds for refusal which do not exist as per government policy. For this producer, this meant a long drawn legal battle and the delay of the release/tax exempt status of the film. It is unknown whether there was any departmental action taken against the Commissioner for acting outside his scope. However, the court did acknowledge that the commissioner’s objections were, “wholly misguided based on fallacious premises” [para 53]. The Commissioner’s refusal was not just a misapplication of a rule of law, it was the complete avoidance of it. Such avoidance delayed a simple application by nearly a year. What a weapon (accidental/deliberate) legal incompetence can be.
- SPACE OCCUPIED BY SAME SEX RELATIONS
The final important legal manoeuvre of note in this case is the manner in which the court put the Suresh Kumar Koushal case in perspective. One would imagine that with that decision coming out in December, 2013 and finding that same sex sexual relations were a kind of criminal unnatural sex, a High Court ruling in February, 2014 may find difficulty in allowing tax exemption to a film about homosexuality. However, this court was quick to find that the Suresh Kumar Koushal case had no application to the present query. That case concerned itself with some forms of unnatural sex which had been criminalized and not with the criminality of a certain sexual orientation. Although it is important to understand that S.377, Indian Penal Code, 1860 (“S.377”) has a disproportionate impact on the LGBT community, it is also important to understand that it does not criminalize homosexuality, and it’s continued existence cannot be used as reason to deny any conversation about the LGBT community, or to deny other rights of the community. The legal clarity displayed by the court is laudable and may lead the way for other State authorities that may be persuaded by the existence of S. 377 to deny claims with a LGBT association.
 All references to the constitution in this post refer to the Constitution of India, 1950.
Note: Part 2 of Kirankumar 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. Summarily and without tracing it’s 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, this right was found not to be absolute and different judges on the bench stated different reasons and tests for State interference with it. In this blog, I will discuss implications of the judgment on the 377 case and rights related to sexual orientation and gender identity (SOGI), generally.
Before doing that, we need to be clear that there is no clear majority opinion, in the ordinary sense of the word, in this case. It is a nine judge bench and therefore, an opinion endorsed by five or more judges would count as a majority opinion. However, here, there is one opinion endorsed by 4 judges (Chandrachud opinion) and 5 individual opinions, all of which find a fundamental right to privacy but are different in particulars. Such a situation is called a plurality and to find a majority on any one point, 5 or more judges should have the same opinion that point.
2. IMPLICATIONS FOR THE 377 CASE
a. 377 Matter is Still Undecided
To be sure, the court did not decide the 377 issue. In fact, 5 judges of 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] (Chandrachud opinion)
“It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench.” [para 81, Kaul J., upon finding that the fundamental right to privacy extended to LGBT persons regardless of how minuscule they were in numbers.]
b. Sexual Orientation Recognized as a Fundamental Right
5 Judges of the court clearly found that sexual orientation is “undoubtedly” an essential attribute of privacy. If privacy is a fundamental right and sexual orientation is an essential attribute of privacy then the right to sexual orientation is a fundamental right as well. The Supreme Court in National Legal Services Authority v. Union of India [“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 noted that S. 377 does not criminalize any particular sexual orientation. 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. 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. Two Arguments for Personal Intimacies to be Essential Entitlements 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. 2 other opinions in the judgment should be highly persuasive of this point. The first is the 4 judge Chandrachud opinion finding 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. 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 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. The second is the Justice Nariman opinion which finds that the fundamental right to privacy will protect “fundamental personal choices.” Although he does not explain what that phrase means, his judgment illustrates “personal choices” as including “rights of same sex couples—including the right to marry…” This provides grounds for arguing that Nariman J. too, finds that personal intimacies of all persons, regardless of SOGI, is protected by the fundamental right to privacy.
3. APPLICATIONS OF THE JUDGMENT MAY OPEN UP MARRIAGE AND PARENTHOOD TO LGBT PERSONS
Finally, the 4 judge Chandrachud opinion 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 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 SOGI. This means that this opinion has affirmed that even LGBT persons have a fundamental privacy right to home, procreation, family life etc. This coupled with Justice Nariman’s finding that personal choices protected by privacy include, “rights of same sex couples—including the right to marry…” provides extremely persuasive grounds for arguing that 5 judges have stated that all persons have a right to marry, regardless of SOGI. Additionally, the logic of the 4 judge Chandrachud opinion may also open up avenues for LGBT persons to argue for procreation related rights like surrogacy etc.
 My thanks to Mariyam Kamil, DPhil (law) student at the University of Oxford for hearing out and confirming my various legal conclusions re. SOGI from this decision. Mariyam researches on the constitutional right to privacy in India.
 S.377, Indian Penal Code, 1860.
 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.
 Kaul J. Opinion; para 80.
 For example, paragraph 126 and Conclusion (3)(F) of the Chandrachud opinion.
 Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013).
 Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013) para 38.
 “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].
 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.
 Nariman J.; Para 81.
 Nariman J.; Para 46.
 Additionally, Chamaleshwar J. suggests that “intimate decision” is an aspect of privacy and it includes most personal life choices [Para 36]. He does not elaborate on what personal life choices are and for this reason, I have left it out of the above reasoning. Similarly, Bobde J. states that privacy has “deep affinity” with intimacy, among other things. In its literal sense, the word affinity means closeness, liking, similarity as per the Oxford English Dictionary and therefore its unclear whether Bobde J. has counted intimacy as an aspect of privacy. For this reason, I have left it out of the reasoning. In this blog, I have tried to present the strongest arguments from the judgment for personal intimacies to be counted as a privacy entitlement.
 Nariman J.; Para 46.
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, 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.
- 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].
- The topic of the film is controversial and “no decent family can watch the film together.” [para 6(ii) of the judgment].
- The core of the film is to promote homosexuality which is not only a crime (S. 377, IPC) but also a social evil.
- The film producer is free to exhibit the film even without the tax exemption.
- Granting tax exemption to the film would suggest that the government endorses the homosexual ideology.
- Homosexuality increases the incidence of AIDS.
- 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:
- The film does not fall under any of the exceptions to the policy and therefore should receive the tax exemption.
- 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.
- 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:
- 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.
- 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.
- 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.” 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.
- The question was not whether or not the producer could still exhibit the film but that whether the film qualified for tax exemption.
- 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].
- 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.
- 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.
 All references to the constitution in this post refer to the Constitution of India, 1950.
 Indian Penal Code, 1860.
 Para 27 of the judgment.
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 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.
On facts, the court was able to establish the following:
- The deceased were eunuchs (intersex, as we have determined) and a member of the Kinner community.
- The appellant Sweety is the guru of the deceased.
- 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.
- 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.
- The religion of the deceased is unknown.
- 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), 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.
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 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:
- Does a transgender person lose their religion merely by gaining membership of a particular community (for example, Kinner, Hijra etc.)?
- Consequently, does this result in the loss of rights associated with religion—inheritance, right to visit holy places etc.?
 Without a will.
 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.
 Incidentally, as per Hindu Law, if a deceased has no heirs, the property devolves to the State.
 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.