0

Madhu Bala v. State of Uttarakhand and Others Habeas Corpus Petition No. 8 of 2020

FACTS OF THE CASE

On the 12th of June, 2020, a single judge bench of the Uttarakhand High Court reiterated the legal position that a consensual relationship between persons of the same sex is not barred by law. This was a case of a live-in-relationship between two women, whose relationship was once again, openly acknowledged in court. In a previous blog, I had discussed that the open acknowledgment in court of a romantic relationship between two women was certainly something new to be seen after the Navtej Judgment in 2018. The first case to do so was Sreeja S. v. Comm. of Police, decided a few weeks after the Navtej Johar case. The present case follows in this line of cases. In this blog post I will demonstrate that the court makes remarkably strong theoretical points about the meaning of the fundamental right to liberty, which it equates with the exclusive right of an adult individual to decide with whom they want to live (among other things). However, the court severely waters down this right in application in this case. They do not implement the declaration made by one of the women in the relationship that she wants to continue to live with her partner because she makes this statement in the absence of her family. This raises the question: is this because of the deep-seated paternalism and homophobia of the legal system, or is it because the legal procedure requires the presence of her family members in this case. Even if this is the case, does the procedure itself suffer from paternalism and homophobia?

Continue reading

0

Arunima Bora v. Pradyunnajit Bora Mat. App. 33/2017

On the 3rd of September, 2019, a division bench of the Gauhati High Court decided whether an unsubstantiated (as opposed to unproven) allegation of homosexuality by one of the spouses against the other in a divorce case amounts to cruelty. Summarily, the court answered this question in the affirmative. This is the first recorded instance in which an Indian court has taken a stance on a homosexuality allegation in a divorce case. Though these allegations are raised in divorce cases from time to time, they are always ignored at the argumentation staged, and have never been attended to by the judges in their judgment. In this blog, I will summarize the facts of the case very briefly and discuss the circumstances under which the homosexuality allegation was raised and decided by the court.

Continue reading

0

Mohammed Arif Jameel and Anr v. Union of India and Ors. (WP 6435/2020)

DIRECTIONS WITH RESPECT TO CORONAVIRUS

On the 9th of April, 2020, a division bench of the Karnataka High Court directed the Karnataka Government to institute measures for vulnerable communities, including the transgender community, in the light of the coronavirus outbreak and the resulting lockdown. Though this interim order does not identify its legal basis, these directions have arguably been issued under Article 226 of the Indian Constitution as they have been made in connection with writ petitions filed in the High Court seeking relief.

Continue reading

3

Medical Control of Legal Gender Recognition in India and the Nordic Countries

This blog is based on a talk that Dr Daniela Alaattinoğlu and I delivered recently at the University of Oxford. As we delivered the talk together, we have also authored this text together. As its title suggests, the main finding of the talk was that the medical field exercises immense control over the legal gender recognition of trans persons. Even when the law is based only on self-identification, and no role has been carved out for medical professionals, they seem to exercise a great influence in the desire and ability of a trans person to get legal gender recognition. Let us look closer at the Nordic countries and India.

Continue reading

1

Monu Rajput v. State and Ors. W.P. (Crl.) 1879/2019 and Crl. M.A. 30835/2019

Habeas Corpus Petition in Delhi High Court

On the 12th of July, 2019, a division bench of the Delhi High Court decided whether a habeas corpus petition filed by a transgender man (Monu) to set his romantic partner at liberty from her family members, could be allowed. The petition was filed against the State to ensure that if the detenue was indeed found to be detained against her will, she be at once set at liberty. Summarily, the court rejected the petition.

Continue reading

0

Surbhi Trivedi v. Gaurav Trivedi Misc. Petition No. 4820 of 2018

The practical limits of the gender determination aspect of the NALSA decision were tested on the 4th of October, 2019 when a single judge bench of the Madhya Pradesh High Court ordered a gender determination test in a matrimonial dispute. In this blog, I will summarize the facts and the decision, and demonstrate that: 1. There is still confusion about the definition of transgender, and intersex persons are considered to be transgender; and 2. That this decision provides a legal limitation to the fundamental right to self-determined gender identity.

Continue reading

1

X v. State of Uttarakhand and Ors. Writ Petition (Criminal) No. 28 of 2019

On the 31st of May, 2019, a single judge bench of the Uttarakhand High Court decided whether a trans-woman’s allegation of rape should be recorded under Section 375 or Section 377 of the Indian Penal Code, 1860 (‘IPC’)? In deciding that the trans-woman had a right to self-determine her gender, ‘without further confirmation from any authority’, this case is a rare example of the correct application of the NALSA decision. It breaks from the trend observed in the Indian courts posts NALSA that when a person seeks to identify in a gender different from what the society has perceived her to be, the courts rely on a sex re-assignment surgery (and in one case, a psychological exam) to grant that right.

Continue reading

0

Rano and Ors. v. State of Uttarakhand  Writ Petition Criminal Nos. 1794 and 1785 of 2018

On the 28th of September, 2018, a division bench of the Uttarakhand High Court ordered the State government to implement the NALSA[1] directions. In addition to the NALSA directions, the court also gave certain additional directions to the State government with respect to the transgender population. The court granted a six month period for the implementation of these directions (i.e. by the 15th of March, 2019) The writ petitions filed in this case were filed by transgender persons and specifically contended that some private persons were interfering in the area of operation. The petition did not clarify the nature or scope of the interference. The judgment reiterated the ruling in NALSA and took judicial notice of the fact that the directions passed by the Supreme Court in NALSA had not been implemented by the State government. The NALSA directions, in full were as follows:

Continue reading