Author Archives: Surabhi Shukla

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Swati Bidhan Baruah v. The State of Assam PIL 15/2017

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Reading Time: 3 minutes

On the 22nd of May, 2018, a division bench of the Gauhati High Court ordered the Government of Assam to implement the directions of the NALSA[1] case within 6 months (i.e. by 22nd November, 2018). A transgender person who was the founder of the All Assam Transgender Association had filed a public interest litigation in the Gauhati High Court praying that the NALSA directions be implemented by the Assam Government. In the NALSA case, the Supreme Court of India had recognized that all fundamental rights apply to transgender persons. Accordingly, they had passed directions to the Union and State government with respect to the transgender population. Summarily, the directions had ordered the following: 1. It had recognized the fundamental right of self- identification to transgender persons, 2. It had directed the State to provide reservations to that population in educational institutions and public appointments, 3. To operate separate HIV sero-surveillance centres for them, 4. To take step to address the mental and emotional stressors faced by this population and also educate the public about them, 5. To provide separate public toilets, 6. To provide them proper medical care in hospitals, and 7. That the recommendations of the expert committee studying the problems of the transgender population be implemented within 6 months. The directions, in full are as follows:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

However, the Assam State government had taken no steps to implement the directions of the Supreme Court. The High Court noted that it was only after receiving notice from the court in this matter that the government had constituted a committee to study the problems faced by the transgender community. The High Court directed the committee to submit its recommendations to the government within 3 months of the order and the government to implement the recommendations within 6 months. Separate from the case, a recent study published in June, 2018, sent right to information applications (RTI) to various departments of the central and state governments to inquire into their progress with the implementation of the NALSA directions.[2] Responses received until April 2017 were analyzed. The analysis with respect to Assam has shown the following:

  1. Assam provides employment and issues identity cards, to transgender persons, as peer educators (PE) under a targeted intervention scheme. The scheme is aimed at reducing the vulnerabilities of the transgender population to HIV/AIDS and covers up to 240 transgender persons.
  2. Assam replied that it has set up a screening committee to issue transgender certificates.[3] Criteria to issue these certificates were not mentioned.
  3. Assam stated that it did not require a medical certificate to grant an identity card as PE to a transgender person.[4]
  4. Assam stated that its government hospitals provide health care to transgender persons, just like to everyone else.[5]
  5. Assam stated that social welfare schemes are at their stage of inception in accordance with the National AIDS Control Organization prescription. It is unclear what ‘inception’ means in this context.[6]
  6. Assam stated that it conducts counselling programmes for the transgender population.[7]
  7. Assam stated that it holds meetings to spread awareness about the transgender community.[8]
  8. Assam stated that it had set up a transgender and intersex persons NGO crisis committee.[9]

[1] National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012.[2] Dipika Jain, Gauri Pillai, Surabhi Shukla and Justin Jos, “Bureaucratization of Transgender Rights: Perspective from the Ground 14 SOCIO-LEGAL REVIEW (2018) 98 [“RTI Article”].

[3] RTI Article, 111.

[4]  RTI Article, 114.

[5] RTI Article, 124.

[6] RTI Article, 128.

[7] RTI Article, 133.

[8] RTI Article, 135.

[9] RTI Article, 137.

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Navtej Singh Johar and Ors. v. Union of India Writ Petition Criminal (No.) 76/2016

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Reading Time: 8 minutes

The arc of the moral universe is long, but it bends towards justice.

Dr. Martin Luther King (cited by Justice D.Y.Chandrachud).

On the 6th of September, 2018, a 5 judge bench of the Indian Supreme Court unanimously found that S. 377 of the penal code violates Articles 14, 19, and 21 of the Constitution of India[1]. This means that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. Bestiality, sex with minors, and non-consensual sexual activity between LGBT persons continue to be criminal. The decision was unanimous in the sense that all judges reached the conclusion mentioned above. However, the judgment was plural in the sense that they offered different reasons for reaching those conclusions. While this judgment is rich in many philosophical strains, this blog will study those reasons.

  1. 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 (“377”) criminalized carnal intercourse against the order of nature which was punished by an imprisonment term extending up to 10 years:

  1. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. [Emphasis mine].

Agitation against the section began in the late 1980s after the outbreak of AIDS in India and the section was challenged for the first time in the Delhi High Court in 1994. This challenge was quickly dismissed. Since then, this section has been challenged multiple times. The longest running legal challenge to this section was initiated by Naz Foundation, a NGO working in the field of HIV/AIDS. This action started in 2001 in the Delhi High Court (Naz Foundation case) and in 2013, the matter reached the highest court of the land, which found it constitutional (Koushal decision). That decision was awaiting a curative admission hearing when the Navtej Writ was filed in 2016 alleging that 377 violated the right to, sexuality, sexual autonomy, and sexual partner, rights that the petitioners argued, were protected under the fundamental right to life (Article 21). By this decision, the court resolved the 377 matter and overruled Koushal. In other words, this decision concludes the 377 question and there will be no admission hearing on the curative petition filed in the Koushal case. For more on curative petitions, see here. Before delving into the specific rights, I mention below, 3 notable philosophical strains that frame the decision:

  1. Transformative constitutionalism: it is the idea that the constitution is created for the progressive realization of more and more rights. It is accompanied by the concept of non-retrogression which states that the march of rights must be forward and not backward.
  2. Constitutional morality: it is the idea that the constitution embeds commitment to certain values, which must be upheld even if they are not overtly mentioned in an Article. All judges had different conclusions as to what these values were.
  3. Fundamental rights apply regardless of number: fundamental rights are not meant for the protection of the majority. These are guarantees that each and every person/citizen enjoys. These rights cannot be denied to a community just because they are a small community. That said, the court accepted the research that 8-10% of the population is LGBT. The court uses the term LGBT so I use it here. However, it is a shorthand for all non-heterosexual sexual desire regardless of labels.

Right to Equality

Article 14

Article 14 of the Indian Constitution guarantees the fundamental right to equality, to all persons:

“14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

While “equality before the law” has been understood as a command to the State to treat all persons equally, “equal protection of the laws” has been understood as a command to the State to create conditions of equality between different members of the society (for example through affirmative action measures). Suppose A alleges that a particular law treats them unequally compared to B. The test applied to check a violation of equality is to ask: 1. Whether there is any intelligible differentia separating A from B or is this an arbitrary division?; and 2. Whether there is a reasonable nexus between this differential treatment of A and B and the proposed legitimate State goal, or is the connection tenuous?

Difference Between Natural and Unnatural?: A majority of the court[2] found that there is no intelligible way to differentiate natural forms of having sex from unnatural forms of the same activity, especially because sex is no longer associated just with procreation even in legal discourse. On the contrary, they said that natural sex is whatever kind of sex 2 consenting adults decide to participate in. Mental health studies worldwide have found that being LGBT is not a mental disorder or a psychological problem. 1500 species occurring in nature display homosexual orientation and it is a natural variation of sexuality. 377 criminalized sexual acts based only on the fact of sexual orientation, a naturally occurring trait. Justice Chandrachud went so far as to deconstruct the meaning of the word “natural” itself and made 2 notable points: 1. “natural” was a social construct that has historically been used to create a hierarchical society. He cited miscegenation laws which segregated between black and white populations as an example. 2. Not all “naturally” occurring things were desirable (e.g. death) and not all “unnatural” things were undesirable (e.g. heart transplant). In fact, all justices found that this law disproportionately targeted LGBT persons such that the real distinction created by this law was not between natural and unnatural, but between LGBT and non-LGBT persons.

Objective of the Law: 2 judges found that the objective of 377 was to protect women and children subjected to unwilling carnal intercourse. On the other hand 2 other judges found that the objective of the law was to impose Victorian mores of sex on the Indian society – i.e. sex only for procreation.[3] One justice did not overtly identify any State objective behind the law. Whichever objective they identified, they all agreed that 377 does not meet it. If the objective was to protect women and children then the new rape law and POCSO met it[4]. In fact by virtue of the new rape provision all kinds of non-consensual sexual acts by men against women were rape[5]. Therefore, the justices reasoned, all consensual acts, being not rape, were natural and out of the purview of 377. However, all sex acts of LGBT persons was per se “unnatural.” Therefore LGBT persons were subjected to a criminal law just by virtue of being LGBT. The judges found this distinction based on a naturally occurring trait and supported only by prejudice[6], a constitutionally unjustifiable reason. If the objective was to impose Victorian mores of procreative sex then of course 377 only unevenly met it because all forms of sex, whether or not procreative, were allowed between heterosexual couples.[7]

Article 15

While Article 14 provides a general equality guarantee, Article 15 specifically prohibits discrimination on the basis of sex:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

While traditionally this Article has been used to strike down discriminatory laws against women, 2 judges of this court endorsed a growing trend to understand Article 15 to include a freedom from sexual orientation discrimination as well. They reasoned that the constitution prohibited sex based discrimination because sex was the site at which gender roles became fixed and freedom and capacities became pre-determined. Article 15 intended to strike at these presumptions which included the presumption that men desire only woman and woman desire only men. Consequently, as 377 furthered this sex based stereotype, it violated Article 15 of the constitution. Other judges did not engage with this thread.

Right to Freedom of Expression

Article 19 of the constitution guarantees to every citizen, freedom of expression, among other things. This freedom can be reasonably restricted in the interest of decency and morality.[8] Not all justices dwelled on this Article but a majority[9] of the court found that freedom of expression includes the freedom to express oneself sexually, with a consenting partner of any sex. Justices Misra and Khanwilkar specifically pointed out such expression does not violate decency or morality, because these concepts are not majoritarian in character. Therefore, societal disgust with this population is not a constitutionally permissible reason to restrict the freedom of expression of LGBT persons.

Right to Life and the Scope of Privacy

Article 21 of the constitution guarantees to every person, life and liberty:

“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Previously, another bench of the same court had found that a fundamental right to privacy was implicit in this guarantee.[10] That court had found autonomy of choice and dignity i.e. respect for the choice, to be the building blocks of privacy. That court had also found the right to sexual orientation to be intrinsically protected by privacy. A majority of this court endorsed that reasoning and extended it further to say that an autonomy based conception of privacy recognizes the freedom of persons to a sexual partner of their choosing and to make other intimate decisions.[11] A majority of the court also noted that sexual expression of LGBT persons needn’t be confined to spatially private places. In other words, LGBT persons can express their relationships even in public subject to other laws that regulate public displays of affection.[12] In fact, Justice D.Y.Chandrachud went so far as to deconstruct the word “private” by pointing out that many a times, homes are also not private places because they are the epicentre of heteronormativity. However, it is to be noted that the right to sexual intercourse has only been granted in private spaces by a majority of the court.

Ratio of the Case

Although, it is doubtful that this judgment will ever be read in a narrow technical way, if we must, we can zero in on a ratio decidendi of the case–i.e. the reasons for the decision. A ratio decidendi will emerge when: 1. 3 or more judges find that the same legal provisions have been violated; 2. For the same reasons. As such, the following ratio emerges from this case.

    1. Although the distinction between natural and unnatural sex is indeterminate, 377 classed all consensual non-heterosexual sexual activities as “unnatural” whereas all consensual heterosexual activities were “natural.” This distinction was based only the sexual orientation of persons involved and does not further any legitimate State objective being rooted only in prejudice against LGBT persons. Therefore, it violated Article 14 of the constitution. All forms of consensual sex between adults is natural.
    2. 377 violated Article 19 because the freedom of expression includes freedom to express oneself sexually with a consenting partner regardless of sexual orientation.
    3. 377 violated Article 21 because the right to life includes the right to sexual partner of choice. They can exercise this right in public and private, subject to the same laws which apply to non-LGBT persons.
  2. On Marriage This case was concerned expressly with 377 and the marriage question was not addressed by any judge directly, except J. Chandrachud, who stated that all persons should be eligible for this institutional recognition of their love regardless of sex and gender. Justices Misra and Khanwilkar also opined that Article 21 protects a person’s right to a union. However, they immediately mentioned that this case was not about marriage. As such it would be incorrect to say that this case has provided marriage rights to LGBT persons. However, it has certainly laid the philosophical foundation for marriage, and many other rights—anti-discrimination, parenting etc., just to name a few.  Law will incrementally advance to provide all these rights to LGBT persons. The future is equal.
  1. [1] Constitution of India, 1950.[2] Justices Dipak Misra, A.M. Khanwilkar, Indu Malhotra and Justice D.Y.Chandrachud. Justice Nariman did not address this strain.

    [3] Justices Rohinton Nariman and D.Y.Chandrachud.

    [4] Except marital rape. Protection of Children from Sexual Offences Act, 2012.

    [5] Except marital rape.

    [6] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

    [7] Justices Rohinton Nariman and D.Y.Chandrachud.

    [8] (1) All citizens shall have the right

    (a) to freedom of speech and expression;

    (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

    [9] Justices Dipka Misra, A.M.Khanwilkar, and Indu Malhotra.

    [10] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1.

    [11] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

    [12] Justices Dipka Misra, A.M.Khanwilkar, and D.Y.Chandrachud.

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Tessy James v. The Director General of Police, Thiruvananthapuram and Ors. W.P. Crl. No. 215/2018

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Reading Time: 5 minutes

On the 12th of June, 2018, a division bench of the Kerala High Court upheld the fundamental right of a transgender person to speech and expression, and free movement.[1] However, arguably, it did so after psychologically evaluating whether the transgender person was really transgender. In this blog, I will argue that: 1. The NALSA[2] judgment provided for the self-identification of gender identity regardless of sex-reassignment surgery and psychological evaluation, and 2. This judgment’s reliance on psychological tests for the accepting the gender identity of the transgender person violated NALSA, and consequently, the law of the land on this subject.

FACTS OF THE CASE

The writ was filed by the mother of Abby James (who now identified as Arundhati) alleging that Arundhati was being held by some transgender persons. The writ prayed that she be set at liberty. According to her mother, Arundhati had previously been diagnosed with mood disorder and psychotic features and had received treatment at a hospital. The present fact situation that brought her before the court was that Arundhati had left the parental home on the 9th of May, 2018 and had not returned. She also showed no indication of returning. She had begun to dress as a woman and kept company with some transgender persons. Her mother was concerned about her physical safety as she feared Arundhati was exposing herself to the risk of “physical abuse and organ transplant.” Additionally, she also could not bear the sight of her son dressed “in the robes of a woman.” Arundhati appeared before the High Court and asserted her gender identity as transgender and also stated that she was not mentally unfit. However, given her past psychiatric history, her mother prayed that the court order a medical evaluation of her mental condition. The court so ordered and the medical report found that Arundhati was mentally competent and had no mood disorder or hallucinations etc. Accordingly, the court ordered that Arundhati was free to identify as transgender and keep what company she wanted. The pleas of the mother to have her returned to the parental home away from the transgender community were trumped by Arundhati’s fundamental right[3] to “live as a transgender.” [para 6].

  1. THE NALSA CASE AND PSYCHOLOGICAL EXAM

The NALSA case found that all fundamental rights guaranteed under the Indian constitution extend to transgender persons as well. It was clear from the directions passed by the Supreme Court in this case that sex re-assignment surgery cannot be made a pre-requisite for identifying as transgender. The court stated, “any insistence for SRS for declaring one’s gender is immoral and illegal.” [Direction 5, NALSA].

However, the scope of psychological exam for declaring one’s gender identity is purportedly uncertain in this judgment. I have argued before that NALSA does not require such an exam. The whole thrust of the judgment is on self-identification and any mention of psychology in it is in reference to the psyche of the person, or the internal, deeply felt gender identity which does not require a doctor’s agreement. In the interest of fullness, I produce that argument below. It first featured in the K. Gowtham Subramaniyam blogpost in December, 2017.

The requirement of doctors, both medical and psychological, is without 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. See especially, Justice Radhakrishnan’s explicit statement that, “[d]etermination of gender to which a person belongs is to be decided by the person concerned.” [Page 84]. His mention of the psychological test must be read in light of this statement. 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 sex re-assignment surgery 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.

Before proceeding to the next segment, we might remind ourselves that as per Article 141 of the Indian constitution, “the law declared by the Supreme Court shall be binding on all courts within the territory of India.” This means that the Kerala High Court was bound to follow the Supreme Court’s finding that a psychological exam was not a pre-requisite to identifying with a particular gender.

  1. THE PRESENT CASE AND THE PSYCHOLOGICAL EVALUATION

In the present case, the High Court ordered a psychiatric evaluation of Arundhati. However, the circumstances in which this evaluation was ordered are vital here. Arundhati had previously been treated for mental illness. The court ruminated on the prayer by the mother to order a psychiatric evaluation. It considered whether it would be overreach for it to do so and whether its Parens Patriae jurisdiction [loosely, “in the place of a parent”] empowered it to do so. Relying on a recent exposition of this jurisdiction by the Supreme Court, the court found that Parens Patriae can be invoked in cases where a person suffers from mental incompetency. Finding that Arundhati had had a history of mental illness for which she had also received treatment, it felt empowered to order a psychiatric and psychological medical examination of her mental health. The court was cognizant of the fact that ordering such an exam may violate Arundhati’s right to live with dignity but went ahead and did that “only because it was alleged that he is a psychiatric patient.” [para 4].

Now, one may take a pause here. Up to this point, arguably, the court has not violated NALSA. It has ordered a mental health exam but for reasons different from assessing the truth of Arundhati’s claim. However, what follows next arguably reverses this course. It appears that the court had ordered a medical exam not only regarding the mental fitness of Arundhati but regarding her claim that she is transgender. This can be gathered from the fact that the medical exam not only finds that Arundhati suffers from no mental infirmity; it also concludes that she, in the words of the court, “fits the label ‘transgender’ as per the Diagnostic and Statistical Manual 5th Edition (2013).”[4] Moreover, the medical report diagnoses her for gender dysphoria and the court places reliance on this medical finding. Any doubt in this matter is dispelled by the following statement of the High Court”

“The self identification of the detenu as a transgender is clearly expressed by speech, mannerism, clothing etc. which we noticed during our interaction and [is] fortified by the medical report.” [para 6].

This statement strongly suggests that the court was relying not on the self-identification of Arundhati as transgender alone but also on medical report which found that she “fit” the criteria of transgender. In ordering that the scope of the mental evaluation exceed a finding of fitness and encapsulate a test as to whether Arundhati is actually transgender, the Kerala High Court violated NALSA which is the law of the land. It also reversed the trend of cases on self-identification of transgender persons by ordering a psychiatric evaluation. In the cases on gender identification which have come up after NALSA, courts have hitherto never ordered such a psychiatric evaluation. See the K. Gowtham Subramaniyam blogpost for a table of cases in which gender identity of transgender persons was the main issue, post NALSA. It could very well be that the reasons for not ordering such a test were circumstantial rather than conscious in those cases as in all but one[5] instance, the claimant had undergone sex re-assignment surgery and had a certificate from the doctor declaring transgender status. Notwithstanding, this judgment may have made some illegal and undesirable inroads into the hard won rights of the transgender population.

[1] The Constitution of India, 1950. See, specifically, Articles 19(1)(a) and 19(1)(d).

[2] National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012.

[3] This fundamental right was recognized under Article 19(1)(a) of the constitution.

[4] Para 5.

[5] Shivani Bhat v. NCT of Delhi and Ors. W.P. (Crl.) No. 2133/2015. In this case, the judgment does not mention a sex re-assignment surgery or any transgender certificate.