This entry concerns the application of the self-identity principle of gender determination in a pension matter. This simple looking judgment of May 2022 not only sees transgender women as women but also by the correct application of the NALSA judgment and the Transgender Act 2019[1], confers financial rewards on the correct constituents.
Continue readingThis month’s entry concerns a case which arose through an unfortunate series of incidents, but which signposts to important future developments in sexual orientation and gender identity laws in the country. In this matter, an employee of a Bangalore based company alleged harassment regarding his sexual orientation and caste identity. The case presents a complex factual situation in which the employee felt increasingly undervalued in the organization; his work received neither recognition nor feedback, his superiors did not speak to him professionally, and jokes and innuendos about his sexual orientation peppered the sarcastic remarks made to him by his colleagues. When he complained to his superiors, things got worse and his colleagues taunted him calling him a snitch (Arrey sir aapse kaun kya bolega, kise apni Naukri nahi pyari hai !’/’ Arrey sir lijiye kursi lijiye warna meri naukri chali jayegi). The employee finally committed suicide but before taking his life, he filed a sexual harassment complaint with his company and a case under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Upon his death, his father filed an abetment to suicide case against his alleged harassers, viz., colleagues and superiors from the company. The present case asked whether the abetment case could be quashed. The consideration of the question raised an important question of law and fact. I shall take each in turn.
Continue readingPART 1 OF 2
On the 17th of October 2023, a 5-judge bench of the Indian Supreme Court decided whether queer couples could get married under the existing secular marriage law in India. In short, they answered no. As is customary in such instances, I will first provide the conclusions reached by the court. However, I find that it is hard to provide a faithful summary of the decision because the judges spoke in so many different voices and picked up such different philosophical strains to supplement their reasoning. It is rather more interesting to pick up some of the constitutional law questions they raised and answered and try to gauge their significance for Indian constitutional law.
I. WHAT WAS DECIDED
The following was incontrovertibly decided in this case:
II. QUESTIONS OF CONSTITUTIONAL SIGNIFICANCE
The following questions of constitutional significance were raised in the case. Some were answered by the court but many open further questions for time to consider. What they share is their ability to take constitutional jurisprudence in interesting directions and so I will raise them here for you to consider.
1. Can a Judge Declare a Fundamental Right in one Case and then Take it Back in Another?
In this case, all the judges agree that there is no fundamental right to marry. This statement sits uncomfortably considering Justice Chandrachud’s earlier finding in Shafin Jahan that, ‘The right to marry a person of one’s choice is integral to Article 21 of the Constitution.’[1] In that case, the appropriate scope of operation of the writ of Habeas Corpus in relation to an adult woman’s marriage was under examination. While the case did not expressly call for considering whether marriage was a fundamental right, Justice Chandrachud, who wrote the concurring judgment went so far as to hold that marriage is a fundamental right. However, in the present case, the same judge narrowed the scope of that declaration by stating that that statement was made in relation to a couple that already had the right to marry. Can this characterization be accepted? The earlier statement was made without qualification and reference to context. It might have been possible to accept the narrowing of a right in relation to a non-fundamental right, by looking at it from the point of view that this is how judge made law gets refined, but it is difficult to accept this statement with respect to a fundamental right. If the rights declared are fundamental, how then can they change form depending on the sexual orientation of the couple in question? Any restriction of the fundamental right can only be made by the State, and this is certainly not the case here. One way to harmonize the seemingly contradictory findings is to say that what J. Chandrachud stated in Shafin Jahan was the obiter and not the ratio, therefore, it did not rise to the level of law. Perhaps that is how history will reconcile these two competing claims. Another way to think about this is to ask if the present case needed to find that there was no fundamental right to marry because finding that there was such a right would not have helped the petitioners in any case—the SMA could not have been interpreted in any other way within the institutional scheme the court tethered itself to, and holding it unconstitutional would have left many heterosexual couples without a legal route to marry. Admittedly, this is a cynical reading of the law, but it leads me to the second question under discussion.
Questions 2 and 3 are discussed in the next blog.
[1] Para 21 of the concurring judgment of Justice Chandrachud in Shafin Jahan.