Author Archives: Surabhi Shukla

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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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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.

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Nimeshbhai Bharatbhai Desai v. State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017

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On the 2nd of April, 2018, a single judge bench of the Gujarat High Court decided whether a wife can prosecute her husband for unnatural sex acts under S.377 of the Indian Penal Code, 1860 (IPC). In addition the court also decided whether with regard to a heterosexual couple, fellatio and cunnilingus amount to unnatural sex acts. Summarily, the court concluded that though a wife can prosecute a husband under 377 for unnatural sex acts, fellatio and cunnilingus do not fall in that category. Seemingly, the court based its reasoning on penile penetration of the anus and concluded that apart from sodomy, bestiality and buggery, no other sex acts in heterosexual sex amount to unnatural sex. In this blog, I will make 5 points: 1. The Koushal case may have left it open for future courts to decide the ambit of unnatural offences, including fellatio and cunnilingus, which are pertinent for this case; 2. Even so, the court deviates from the cases it cites; 3. The Koushal case arguably does not criminalize all instance of non-heterosexual sex among consenting adults; 4. The Gujarat case is a live example of the discriminatory application of 377; and 5. The decision has an impact on the maximum punishment that the husband faces.

Facts of the Case

Nikita and Nimeshbhai, two doctors, married each other in May, 2014. Their marriage began to deteriorate after six months, as per the first information report (FIR) filed by the wife against her husband and her in-laws. Her husband would force her to have oral sex with him (fellatio) and also forcibly perform oral sex upon her (cunnilingus). She alleged that he would force her to have sexual intercourse with him i.e. he raped her vaginally. In her FIR, she did not make an allegation of forced anal sex. Accordingly, she lodged an FIR under Ss. 377 (unnatural offences), 376 (punishment for rape) and 498-A (cruelty) of the IPC. At the time of the hearing of this case, the police had not completed investigation into the allegations. The counsel for the husband and in-laws filed a criminal miscellaneous application in the interim praying that the court quash the FIR. The court quashed the FIR against the in-laws in toto whereas with respect to the husband, the court quashed the charges of 375 and 377. Finally, the court recommended that a charge of 354(outraging the modesty of women) be added to the FIR. Before delving into the points, I make a preliminary observation about the marital rape discussion in this case.

Alleged Acts Not Rape by Fact of Marriage—Marital Rape Discussion

As per the amended S.375 of the IPC, non-consensual fellatio and cunnilingus constitute rape. However, as per Exception 2 of the amended section, sex acts by a man with his own wife (18 years or older) do not constitute rape. In this case, the acts in question were sex acts and performed by a husband against his wife. Though these sex acts would have ordinarily constituted rape, the court observed, the fact of marriage takes these acts out of that purview:

“In the case at hand, the acts complained or alleged would definitely amount to rape within the meaning of section 375 of the IPC, but it is the lawful marriage between the accused and the first informant that saves the situation for the husband. Section 375 does not recognize the concept of marital rape. If the complainant is a legally wedded wife of the accused, the sexual intercourse with her or any sexual acts by accused would not constitute an offence of rape even if it was by force, violence or against her wishes.” [para 15].

However, the court then proceeded to decide whether these sex acts constitute acts, ‘against the order of nature’ for which there is no marital exception.[1] This is how the discussion shifted to 377. Incidentally, the High Court of Tripura has found in an analogous fact situation in 2017 that fellatio is triable under 377.[2]

377 of the Indian Penal Code

377 reads as under:

  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.

The court begins with a list of potential activities that may be against the order of nature. Notably, this list seems illustrative because the court states that unnatural sex can take various forms  “such as” sodomy, bestiality, buggery, maschosim, sadism, exhbitisionism, and fetishism.  However, through the judgment the court does not seem to take note of any other kind of sex which may fall under the category of unnatural. Arguably, the court seems to understand carnal intercourse as sexual intercourse involving a penis and penetration as an act that can be accomplished only when the penis penetrates the anus. This conclusion further strengthened by the fact that they do not find fellatio an act of unnatural sex because though it does involve the penis, there is no penetration in the anus. By extension, cunnilingus is not unnatural because there is no penis involved. Accordingly, the court concludes that apart from sodomy, bestiality and buggery, no other sexual acts mentioned on their list classifies as unnatural act [paras 48, 50-51]. The failure of the court to expand the list of unnatural acts shines a light on its narrow understanding of unnatural. However, this is not to argue that the list of unnatural acts must be expanded. This is just to draw attention to the fact that according to the court, unnatural sex acts are those which involve penile penetration into the anus of either a man, woman, or beast.

  1. Suresh Koushal May Have Left it Open for the Court to Conclude that Fellatio and Cunnilingus is Natural

In the case of Suresh Kumar Koushal v. Naz Foundation[3], the Supreme Court was called upon to decide the validity of S.377. The Supreme Court had, in that case, found that S.377 is indeed a valid law.  In its judgment, the Supreme Court cited the past cases involving 377 which all involved non-consensual sexual acts and some of which also involved penile penetration into orifices other than the anus (mouth, nose of animal etc.) However, ultimately, court found itself unable to formulate of list of sexual activities that would be unnatural per se [para 38, page 77, SC version]. Now, there are two ways of looking at what the Supreme Court did in that case. The first way is that whatever else may be unnatural, the Supreme Court certainly thought that penile penetration into the anus, nose, mouth etc. was unnatural., at least when effected non- consensually (which fact coincides with our present case). The second is to conclude that all this previous case law cited by the Supreme Court has no bearing on what is natural and unnatural—that it was merely making a note of the judicial history of 377 without expressly endorsing certain acts as unnatural. This second conclusion may be the stronger one especially because the Supreme Court stated in Koushal that: “However, from these cases no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed.” [para 38, page 77, SC version]. Therefore, prima facie, this judgment is not in violation of Suresh Koushal as that leaves it open for future courts to decide what is natural and what is not.

  1. Court Deviates from Cases it Cites

However, oddly, the judgments that the Gujarat High Court cites i.e. Brother Anthony v. State[4] and Khandu v. Emperor[5] involve the case of a penile penetration into orifices other than the anus. In both these cases, the accused was found guilty of 377. The court does not explain this deviation though technically it is not bound by these cases as they were high court cases.

  1. Koushal Arguably Does Not Criminalize All Instances of Non-Heterosexual Sex

Arguably, the Supreme Court has not found that 377 criminalizes all kinds of sexual activities between non-heterosexual adults, in the Koushal case. Building on the reasoning in point 1 above, the following conclusions emerge from the Koushal decision:

  1. The Supreme Court does not have a list of unnatural and natural sex acts and it asserts that the 377 categorizes people on the basis of sex acts, and not sexual orientation (the former being criminal and the latter, not: paras 38 and 42, SC version.
  2. The court is apprehensive to conclude from markedly coercive cases of sex it cites (involving penile penetration in a bodily orifice other than the vagina) that were such cases to come up in the future and involved consenting adults, a term that is sex neutral, an offence under 377 would be made out.
  3. The Supreme Court categorically states that, “It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” [para 38, page 77, SC version].

Therefore, these 3 points taken together allow one to argue that not all cases of consensual sex between adults, regardless of sexual orientation and gender identity constitute an offence under S.377. In other words, there may be some instances of homosexual sex which may not be violative of 377, per the force of this judgment.

     4. This Case is an Instance of Discriminatory Application of 377

Here, the Gujarat High Court categorically finds that 377, “penalizes sexual activities between the homosexuals” [para 34]. By doing so, this judgment not only arguably fails to correctly follow the Koushal judgment by which it is bound by force of Article 141 of the constitution[6], it posits itself as an instance of discriminatory application of S.377.

In this judgment, the Gujarat High Court has found that fellatio and cunnilingus are not unnatural sex acts as between heterosexual couples. Because of the wording of 377, the conclusion would have been the same regardless of whether consent was involved. However, since the amended rape provisions will cover non-consensual cases of fellatio and cunnilingus at least between the non married heterosexual couples, for the purpose of our analysis we will compare these two acts performed consensually, once by a non-heterosexual couple, and once by a heterosexual couple. The thrust of this judgment is that the heterosexual couple will not be found in violation of 377 whereas the non-heterosexual couple will be found guilty in violation of 377 because 377, “penalizes sexual activities between the homosexuals” [para 34]. In other words, if a man has consensual oral sex with a woman, neither would be guilty under 377, but if a man performs the same acts with another man consensually, both will be guilty under 377. In other words, 377 will operate differently depending only the sex of the sexual partner. Therefore, this decision advances an interpretation of 377 which mandates a discrimination based only on sex, a clear violation of Articles 14 and 15 of the constitution

      5. Effect of the Judgment on Maximum Sentence

The different crimes alleged in the FIR attract the following sentences:

  1. 376: 7/10 years or life (at least for the facts at hand)
  2. 377: 10 years to life, and fine.
  3. 498-A: 3 years and fine.
  4. 354: 2 years, or fine or both.

Therefore, it is evident that by quashing the FIR with respect to the husband as regards 376 and 377, the maximum potential sentence that can be awarded to the husband falls drastically from life sentence to 2-3 years. This is a major devaluing of a criminal activity based entirely on the fact of marriage alone.

 

I am thankful to Upasana Garnaik, Arushi Garg and Rishika Sahgal for illuminating discussions around this case which enhance the quality of this blog. Upasana Garnaik is an advocate in India. Arushi Garg is a doctoral (law) student at the University of Oxford whereas Rishika Sahgal is pursuing a MPhil (law) at the University of Oxford.

[1] I am grateful to Upasana Garnaik for pointing out that though certain acts may not be rape, they may still be unnatural for the purpose of an inquiry under 377.

[2] Paramita Majumder (Datta) and Ors. v. Biswanath Datta and Ors. Crl. Rev. Pet. Nos. 80/2013 and 1/2013.

[3] Civil Appeal No, 10972/2013.

[4] 1992 CrLJ 1352.

[5] AIR 1934 Lah 261.

[6] Constitution of India, 1950. Article 141 states as follows:

“141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

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State of Gujarat v. Kirankumar Rameshbhai Devmani Civil Appeal No. 7208/2015

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On the 3rd of May, 2018, a division bench of the Supreme Court dismissed an appeal filed by the maker of a Gujarati film on the topic of homosexuality. In this post, we will investigate whether the reasons for this dismissal were correct in law. I will argue that they were not. More specifically, we will ask whether a change of the substantive law on a particular matter during the pendency of appeal should change the substantive law governing that matter? This question will also be answered in the negative, with some qualifications.

HISTORY OF LITIGATION OF THE FILM
The film was called Meghdhanushya and had been the subject of litigation at the Gujarat High Court as well. At the High Court, the filmmaker, who was also the producer of the film had challenged the denial of entertainment tax exemption to the film. On the 28th of February, 2014, the High Court found the denial to be illegal and unconstitutional, and ordered that the tax exemption be offered to the film, and a certificate issued to that effect by the office of the Commissioner of Entertainment Tax. I have summarized the reasoning of the High Court with arguments from both the sides in a previous post.

Note that the High Court battle was not about the whether the film could be released. The battle was about tax exemption. The film was always eligible for release. In fact, the State of Gujarat had argued, even if unsuccessfully, at the High Court level that the filmmaker was free to release the film without the tax exemption.[1]

Following the High Court decision, the State of Gujarat filed a petition before the Supreme Court seeking its leave to appeal the High Court decision. This petition was first called up for hearing on the 15th of April, 2014. On that date, the Supreme Court also stayed the High Court order. Permission to appeal was granted to the State of Gujarat on the 15th of September, 2015.

GROUNDS OF APPEAL
To be sure, the grounds on which the appeal was filed are not publicly available. However, without more, and anything to the contrary to suggest otherwise, the appeal was filed arguably to persuade the Supreme Court that the correct interpretation of the Gujarat tax exemption policy required denial of the entertainment tax exemption to the film. The State of Gujarat framed a scheme dated June 8, 1999 exempting all Gujarati colour films produced after April 1, 1997 from entertainment tax. According to para 4 of the scheme, films could be denied exemption only if they, depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.” Presumably, the counsel for the State of Gujarat sought to argue that the film in question fell under one of the above mentioned categories and therefore was rightly denied exemption. However, something seems to have changed during the course of those arguments, if one looks at the 3rd May order.

CHANGE IN SUBSTANTIVE LAW DURING PENDING APPEAL

According to the 3rd May order, the Gujarat counsel was arguing that the question of whether the film can be exempt from tax will now be considered under the Goods and Services Tax (GST) regime. However, at the time when the film was denied the exemption, the GST regime existed neither centrally nor at the State level. A key rule of interpretation is that the substantive law at the time of the cause of action should govern the matter. The philosophical foundations of this rule lie in fairness—no one should be subject to a law that did not exist at the time they performed an act, especially when it effects obligations and duties.[2] In fact, a changed substantive law does not have a retrospective application until it is expressly stated so in the legislation, or the changed law should by necessary implication have a retrospective effect.[3] Neither is true in our case since both the Central and State GSTs have neither stated that they will have retrospective effect nor is such a construction required by necessary implication. The GST was introduced in 2017 at both the central level and in Gujarat whereas the cause of action arose when the exemption was first denied by the Entertainment Tax Commissioner in Gujarat in April, 2013. In fact, Vepa Sarathi has expressly stated that a fiscal statue must expressly be made retrospective.[4] In the absence of any such declaration by either the Central or the State government, our case is further strengthened that the GST regime will govern future questions of tax exemption but not the present case. This conclusion is further strengthened by S. 174(f) of the Gujarat Goods and Services Tax Act, 2017 which states that cases instituted prior to the Act will be decided under the repealed laws. Therefore, according to this rule, the 1999 policy, which governed entertainment tax exemption question, when the matter arose in Gujarat, should govern the decision all through its very end in the Supreme Court.

Even if the substantive law has changed during the pendency of appeal, the appeal will be governed by the laws that existed when the cause of action arose (April, 2013). Therefore, this case should have been governed by the 1999 scheme and the judges ought to have heard it on that basis. In other words, the appeal at the Supreme Court level should have answered the question whether the film qualifies for the tax exemption under the 1999 scheme? However, as per the 3rd May judgment, the court dismissed the appeal because the taxing statute has since changed. This it was not entitled to do. By dismissing the appeal on an incorrect legal standard, the judgment has arguably set the stage for a review on grounds of a patent error of law.

[1] The film has an “A” certificate from the Central Board of Film Certification in India (Censor Board).

[2] Nova constitutio futuris formam imponere debet, non praeteritis.

[3] Vepa Sarathi, Interpretation of Statutes 466 (Eastern Book Company 2003).

[4] Vepa Sarathi, Interpretation of Statutes 466 (Eastern Book Company).

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K. Annapoornam v. The Secretary to Government, Personnel and Administrative Reform(s) Department and Ors. W.A.(MD) No. 792 of 2016

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On the 5th of July, 2016, a division bench of the Madras High Court disallowed the appeal of a police aspirant. She was disqualified from a selection round for failing to meet the minimum threshold. The selection round involved a 100 metre sprint in a stipulated time period. She prayed before the court that she be allowed to move on to the next stage despite this. She pointed to a previous case[1] in which a transgender aspirant was so allowed despite failing to complete the sprint in the stipulated time. Thereafter, she argued that a similar relaxation of rule be made for her. She placed special emphasis on the fact that the transgender population has a physical advantage over cisgender women candidates. Arguably, here she was referring to a transwoman. This blog will first summarize the case and then concentrate on two streams of thought: 1. Do transgender women candidates have a physical advantage over cisgender women candidates? 2. Is it a good strategy to pit the interests of cis-women against transgender persons?

FACTS

The appellant, Ms. Annapoornam, had applied for the post of Sub-Inspector of Police in the State of Tamil Nadu. There were 3 stages in selection: 1. Written examination; 2. Physical standard and physical endurance test; 3. Viva. The appellant cleared the 1st stage and also cleared part of stage 2—the physical standard test. The second part of stage 2 was a physical endurance examination, tested through: 1. Long jump; 2. Shot-up; and 3. A 100 metre sprint. Ms. Annapoornam cleared the long jump and shot-put stages with ease. In fact, she performed quite well in these tests and was awarded a “two-star” remark for her performance. A two star performer is one who surpasses the minimum standards required in the physical tests. The last 100 metre sprint remained. The test required that the sprint be completed in 17.50 seconds but Ms. Annapoornam completed it in 18.09 seconds. She fell 19 micro-seconds behind the requirement. Consequently, she did not move on to the viva stage of the selections. She challenged her exclusion on several grounds in a writ petition she filed before a single judge of the Madras High Court at Madurai. However, the judge dismissed the writ on 26.10.2015 reasoning that, “when the petitioner herself has admitted that she was unable to pass the 100 meters run within the specified time limit viz., 17.50 seconds, this Court may not be in a position to interfere with the impugned [disqualification] slip.”[2] Accordingly, she approached division bench of the High Court on appeal, once again challenging her disqualification.

GROUNDS OF APPEAL

The appellant, contended that she: 1. Had a better academic record than most of the candidates that had moved on to stage 3 (she held an English MA degree); 2. She had secured 2, 2 star performances in her physical endurance test, in long jump and shot put, respectively. Therefore, she argued, it is unjust to fail her in the physical endurance test; and 3. She argued that a different bench of the Madras High Court had allowed a transgender candidate, who fell short of the sprint requirement by 1.1 seconds, to proceed to the next stage of selection. She prayed that a similar allowance be made in her case as well especially because, she argued, transgender persons (it appears from the context of the case that she was referring to a transwoman) have more physical power.

DECISION

Summarily, the court decided that the physical tests were relevant to the role of the sub-inspector and accordingly the requirement to pass those tests were not arbitrary. Consequently, they dismissed the writ petition. On the contention of having made a discretionary allowance for a transgender candidate, the court noted that following the Supreme Court decision in the NALSA case, the State governments were supposed to take steps to protect the interests of the transgender community, but no such steps have been taken by the State government. Accordingly, the court, taking note of the discrimination and lack of parental support faced by transgender persons, prescribed a different standard in the 100 metre sprint. However, the court declined to make any observations about whether cisgender women should deserve more consideration than transgender persons. Arguably, the court took recourse to the fact that as per the Supreme Court’s direction, the State government was anyway required to institute various measures for transgender persons; the court’s direction in the Prithika Yashini case being a step taken because of the government’s failure to do so.

DO TRANSWOMEN HAVE A PHYSICAL ADVANTAGE OVER CISGENDER WOMEN?

There are two things that this case throws up that need some consideration and though they have not become an issue in this case, they may in the future. 1. Do transwomen have more physical power than cisgender women? In this situation particularly, we are concerned with their ability to run a 100 metre sprint and the question is whether their physical make up gives them any kind of advantage. The manner of framing the contention in this case assumes a person assigned male at birth having all the strength and speed advantage deemed to be associated with that sex; she later transitions. However, recently, the science related to sports and sex has come into intense focus with the Duttee Chand case before the Court of Arbitration for Sports (CAS). The case concerned the exclusion of an Indian athlete, Duttee Chand from the 100 metre national team because her testosterone levels were found to be higher than those permitted for athletes in the female category. The exclusion was based on an assumption that higher testosterone contributes to better athletic performance. The Court of Arbitration for Sports ultimately found (page 71) that higher testosterone in males contributes a 10-12% athletic advantage over females. However, the competitive advantage for women with increased testosterone renders a negligible advantage over other female athletes of about 1-3% which would not justify placing Duttee Chand in the male category for competitions. It also noted that many other factors such as genetic and biological variation, coaching, nutrition, etc. also contribute to competitive advantage. Without more, it is difficult to argue that these findings are directly applicable in comparing competitive advantages of trans and cis women. This difficulty becomes especially apparent when considering a trans persons who underwent hormonal therapy to align their bodies to their true gender. Therefore it might be best to treat it as an open question until the science behind question be tested and weighed in light of environmental, biological and social factors.

PITTING INTERESTS OF WOMEN AGAINST TRANSGENDER PERSONS

Second, this case pitches the interests of cisgender women against transgender women. Here, the court was not in the difficult position to pick one over the other, but the conceptual stage has been set. This is a dangerous sign. Both the movement for women’s rights and for transgender rights have fought long and hard battles for equality and dignity, and freedom. Both these movements fight for freedom from patriarchal rules of society. It is not a good strategy to use one against the other to move ahead. Instead, other strategies could be considered. For example, in this case, the appellant could have argued, that her academic grades are more than the requisite threshold, that she is well educated and that she has 2 star performances in 2 out 3 physical tests. The appellant could have asked the court to use their discretion in light of all her records, and see if she can be allowed to move on to the next stage despite falling short by 19 micro-seconds.

 

[1] K. Prithika Yashini v. The Chairman, Tamil Nadu Uniformed Services Recruitment Board W.P. No. 15046 of 2015.

[2] K. Annapoornam v. The Secretary to the Government and Ors. W.P. (MD) No. 19170 of 2015.

[3] International Association of Athletic Federations.

[4] The materials submitted are not available publicly.

S. Tharika Banu v. The Secretary to Government, Health and Family Welfare Department and Ors. W.P. No. 26628/2017

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On the 29th of November, 2017, a single judge bench of the Madras High Court decided whether a transgender woman[1] could be admitted to an undergraduate degree even though she had not obtained certain minimum marks for admission. The High Court decided the transgender woman, S. Tharika Banu, must be admitted to the degree because the, “minimum marks holds good only for “males” and “females”, and not for transgender persons. The court made this relaxation for Banu keeping in mind, the rareness of her demand, the harassment and discrimination faced by transgender persons in society, and the directions of the Supreme Court in the NALSA case. In this blog, I will discuss two aspects of this judgment: 1. Will this decision open doors for more transgender persons to apply for undergraduate degrees at less than minimum marks? 2. Does this decision apply to those transgender persons who identity as male or female, and not transgender?

Before delving into these issues, it may be helpful to know that in the NALSA case, the Supreme Court had directed that the Centre and State governments treat transgender persons as socially and educationally backward classes of citizens, a constitutionally protected category, and provide them reservation in matters of admission to educational institutions. However, the latest version of the Transgender Persons (Protection of Rights) Bill, 2016 has no mention of a reservation provision. Therefore, if this version of the Bill is to pass, transgender persons will have no legal entitlement to reservation. Until this Bill solidifies into an Act, the direction of the Supreme Court is law (Article 142)[2] and binds Tamil Nadu State Government and accordingly, its instrumentalities like the Tamil Nadu Backward Classes Commission. Suppose the 2016 Bill passes as it is and becomes an Act– it can be challenged in the Supreme Court for failing to provide reservation to transgender persons. The court will have two options. It can by its complete justice provisions, bypass the Act and restore its earlier directions, or it may examine afresh whether denial of reservation to the transgender population violates the constitution. As the Supreme Court itself has expressly stated that transgender persons are “legally entitled and eligible” for affirmative action measures [para 60], the court will have strong reasons for upholding this challenge.  Meanwhile, representation can be made before State Backward Class Commissions for their omission to include transgender persons in the other backward classes (OBC) category, and a writ can be filed before State High Courts against the State Government for violating the equality right of transgender persons by failing to provide them “equal protection of the laws” through reservations schemes.

  1. WILL THIS DECISION OPEN DOORS FOR MORE TRANSGENDER PERSONS TO APPLY FOR DEGREES AT LESS THAN MINIMUM MARKS?

Arguably, yes. In this particular case, Banu had obtained 537/1200 (44.75%) marks whereas the minimum threshold to be considered for admission to the undergraduate course was 50%. A little background about Banu is important here because arguably, the court considers the background an important reason to provide relief. Banu was assigned male at birth “but due to chromosomal aberration…started identifying himself more as a female than as a male.” Without more it is difficult to say what this phrase means but arguably this signifies that Banu had an intersex condition at birth/developed one later, if that is possible, and as a consequence started to identify as a woman. This was not acceptable to her parents, and Banu left home at a young age, and underwent a sex-reassignment surgery (SRS). Thereafter, she took on a traditionally more feminine name and has been living as a female. She also passed her higher secondary exam with the abovementioned marks. Recounting the stigma faced by transgender persons in society, the court surmised that,

…for the first time in history, a transgender person has knocked on the doors of this court seeking to consider her candidature for admission in BSMS course…it is a welcome change that they have come forward to get higher education. instead of living normal stigmatic life as a transgender and in spite of undergoing various insults and even assaults, harassments in the hands of some unruly elements, when they come forward to get education, the same has to be encouraged and based on technicalities, the transgender persons coming forward to join educational institutions should not be driven out…[i]t is not as if many transgender persons have applied for seats…on very rare occasions, this kind of claims would be made and that has to be considered with compassion and benevolence. [paragraphs 9-12]

Accordingly, the court directed the State to admit her into the undergraduate course (Bachelor of Siddha Medicine and Surgery). A reader, upon examining this reasoning, may be tempted to think that the court is granting a one-off prayer, especially since the government has provided no reservation schemes for transgender persons in Tamil Nadu. However, this does not seem to be the thrust of the judgment read as a whole. Though the court has directed Bhanu be admitted into the course, it has also stated explicitly,

“The Court hopes that this order would be a first step to throw open doors of educational institutions for the entry of ‘Transgenders’ for their social empowerment, employment status, dignity, right etc….” [para 13]

This signifies the court’s intention that this order be not one of a kind, but be the first to open doors for transgender persons in education institutions. One of the ways for doing so, is by providing them reservation as directed by the Supreme Court and also by another bench of the Madras High Court. The court finds the State “guilty of not implementing the order” of these courts mentioned and rejects the rationale of the Tamil Nadu Backward Classes Commission for denying reservation to transgender persons in educational institutions. The commission had argued that since transgender persons comprise only .007% of the total population of Tamil Nadu, it would not be “feasible”, numerically, one may suppose, to provide any reservation for them.

  1. DOES THIS DECISION APPLY TO THOSE TRANSGENDER PERSONS WHO IDENTIFY AS MALE OR FEMALE, AND NOT AS TRANSGENDER?

Arguably, it does. it is important to address this point, because in its reasoning, the court has especially stressed that the 50% cut-off applies to “males” and “females” and not to “transwoman” or “transgender.” At first glance, it may seem that this reasoning can exclude those transgender persons who identify as male or female and do not want to call themselves transgender. However, the judgment should not be read in this way especially because the Supreme Court has expressly stated that transgender persons have the right to identify as male, female or third gender. Therefore, this judgment should apply equally to transgender persons who identify as male or female. Equally, this judgment should apply to persons who do not identify with the sex assigned to them at birth, this being the manner in which the Supreme Court understood the term transgender, and this could cover gender-queer persons. Finally, various regional identities such as hijra, aravani, shiv-shakti etc. are all included. In short, this judgment should apply to all those persons covered within the ambit of transgender persons, as per the NALSA judgment. This is of course, till the 2016 Bill is enacted. If enacted, as is, the 2016 Bill will severely cut down the ambit “transgender.” For the full argument on this, please see here.

  1. OBSERVATIONS ABOUT SRS, INTERSEX CONDITION ETC.

The intersex condition is classified as a “physical abnormality” and a “chromosomal aberration”, and  the role that SRS has played in the grant of the relief is unknown though seems to be of importance. It is doubtful if court would have ruled similarly if SRS had not been performed especially because the court states,

“those unfortunate persons, due to some physical abnormality and due to the act of genes, suffer from transforming into transgender and could not identify themselves with regular gender namely, male and female.”

It could be that this statement does not mean very much, as indeed, if construed as a whole, it signifies some kind of metaphorical transformation into a transgender person– akin to the stuff of legends. However, what we can certainly take away from this is that we do not know if the court would have decided similarly if the petitioner had not undergone the SRS.

However, there are some good points to note about the judgment: 1. the court recommends that the government carry out a survey to determine the number of transgender persons in Tamil Nadu for proper compliance with the NALSA decision; and 2. the court uses pronouns in line with respect to the petitioner’s gender identity (she). Finally, it is worth raising a point about caste here. The petitioner belonged to the Scheduled Caste (SC) and had in fact asked to see the merit list for the SC category. The court did not find it necessary to grant this relief in light of its decision. One does not know whether the seat Banu was allotted was one from the SC category or from the OBC category. Since the Supreme Court direction states that transgender persons must be treated as socially and educationally backward classes, it could be that transgender persons of different castes may have to deal with a loss of caste, or at least have a fractured caste identity– caste A for all times, but a member of backward class for the purposes of admissions in educational institutions. Law/policy will have to devise a way to handle this possibility. Although fracturing of caste identities may be a beginning on the path to diminish the value of caste identities but such eventualities may cause resentment in the short run.

 

[1] Actually, it is not clear whether the petitioner identifies herself as a woman or as transgender. The facts suggest that she has been living her life as a female but there does not seem to be a suggestion from the side of the petitioner that she would call herself transgender. However, the court uniformly describes her as a transgender woman.

[2] The Constitution of India, 1950.

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Navtej Singh Johar & Ors. v. Union of India Ministry of Law and Justice Secretary Writ Petition No. 76/2016

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On the 8th of January, 2018, a three judge bench of the Supreme Court ordered that the Suresh Koushal decision which upheld the constitutionality of S.377[1] requires reconsideration. The court so ordered while hearing a writ petition challenging the constitutionality of S.377 (Navtej writ). Substantively, the judges stated emphatically that the “litmus test” for finding S.377 unconstitutional was if it offends constitutional morality, regardless of how societal morality on the issue was poised. Should a people exercise the “inherent” right to their sexual orientation within the confines of constitutional morality, the court stated, they will receive the protection of Article 21.[2] To be sure, S.377 is still constitutional, both because the Navtej writ is not finally disposed and because the Suresh Koushal ruling is still in operation. However, these observations no doubt strengthened the judicial discourse on the protection of sexuality rights. However, this blog is not about these substantive proclamations. Instead, in this blog, I will attempt to answer two procedural questions which arise from this January order of the Supreme Court:

  1. Was the Supreme Court empowered to admit the Navtej writ given that the Suresh Koushal decision is due to come up for hearing in the curative process? [Yes]
  2. How does the order passed in this writ, affect the 377 curative petition[3], if at all? [Not at all]

However, before delving into these inquires, a few preliminary matters need to be clarified.

WHAT IS A CURATIVE PETITION?

A case goes through two stages at the Supreme Court: judgment and review. A curative petition is a petition that can be filed after the disposal of the review petition. It is a judicially created process at having yet another look at the decision. Its genesis is owed to the Ashok Hurra Case (2002, SC) which stated that although finality of a decision is very important for certainty and stability of a legal system, the inherent powers granted to the Supreme Court allow it to reconsider its decision to prevent miscarriage of justice. The court then laid down illustrative grounds for understanding miscarriage of justice:

  1. Petitioner must show a violation of principles of natural justice. If they were not a party to the proceedings in the Supreme Court, they must show that the decision adversely affects their interest; if they were a party to the proceedings they must show that they had not been served with notice and the proceedings went on as if he had been served notice [this last ground was successfully pleaded in one of the three successful curative petitions—MP v. Sugar Singh]; or
  2. The judges at the Supreme Court proceedings failed to disclose their connection to the subject matter or parties, which gives an apprehension of bias disadvantaging the petitioner.

Aside from these points, the curative petitioner must also show:

  1. The points raised in the curative have been raised in the review;
  2. A senior lawyer must certify as to the fulfilment of the conditions 1-3
  3. Three of the senior-most judges, along with the judges that heard the original Supreme Court decision will then preside over the matter. The curative petitioners have to make those arguments in these petitions which can demonstrate either points 1 or 2 above (or other grounds which can point to miscarriage of justice)[4] at the first stage to get the petition admitted. If the petition is admitted, the Hurra case says, “the same bench” must hear the matter on merits. The phrasing “same bench” here is confusing. Does it mean the same bench which originally heard the case or does it mean the same bench which is considering the curative? This issue does not arise in the 377 curative as both judges who originally heard the case have since retired. However, I will address this issue here for completeness. Sometimes, the same bench that admits the curative decides, barring of course, the judges that retired since the curative was admitted [see, for example, Bhaskar Lal Sharma v. Monica, Navneet Kaur]. Sometimes, another bench decides though the admitting bench is still on the rolls [for example, MP v. Sugar Singh][5].

This procedure has now been formalized and is housed in Order XLVIII of the Supreme Court Rules, 2013. However, it is important to note that the curative petition arguments are gateway arguments. Once the petition is admitted on points 1 and 2 above (or other miscarriage of justice grounds), the original cases are restored (in our case, the petitions filed by Suresh Koushal etc. and Naz and others at the Supreme Court level) and the court now hears arguments on the points addressed in those filings.

  1. MAINTAINABILITY OF THE NAVTEJ WRIT

This brings us to the point of maintainability of the Navtej writ. Lawyers for Navtej Johar asserted in their writ that the issues raised by their writ petition are “varied and diverse” from those raised in the 377 curative. I argue that this distinction is only surface level and it is unnecessary. It is surface level because once the curatives are admitted, the original SLPs and written submissions will be restored and arguments will once again be heard on the merits of those filings. Those who followed the Koushal arguments in 2012, will recall that they were chiefly around Articles 14, 19, and 21 of the constitution. The Navtej writ also makes Article 21 arguments[6] and so substantively, both petitions will be raising similar arguments.

This distinction is also unnecessary because Res Judicata only operates between “the same parties and in respect of the same cause of action.” [Sanjay Singh v. UPSC, SC 2007]. That means that the same parties cannot bring a case based on the same grounds once the Supreme Court has decided the dispute between them (assume review, curative are all done). In the Navtej writ, parties are different from the Suresh Koushal proceedings even though the subject matter is the same (i.e. constitutionality of 377). This is legally permissible. On this point, consider the case of Sanjay Singh v. UPSC. Here, unsuccessful candidates at a judicial selection exam challenged the scaling method deployed by the examiners to calculate scores. This exact question had come up before the Supreme Court earlier in a case called UPSC v. S.C. Dixit wherein the scaling method was found constitutional. This decision was reaffirmed at the curative level as well. The UPSC sought to argue that Sanjay Singh’s case should be dismissed because the Dixit case had already found the same scaling method constitution. The Supreme Court replied that the ratio decidendi [logic of the decision, loosely] of a previous case can always be challenged by a subsequent case [in fact, this is how legal reasoning changes]. What cannot be changed is the order in the previous case. This literally means that a subsequent court cannot pass an order reversing the final order of a prior judgment.[7] This would in the Koushal context mean that the Navtej court cannot pass an order which changes the result of the Koushal review from “dismissed” to “admitted” [See Sanjay Singh, para 10]. However, a subsequent proceeding filed in the court challenging the rationale of the Koushal judgment by different parties is not prohibited.

Similarly, if the parties remain the same but the points of dispute between them change, they can file a writ even though a curative petition on different points has been dismissed. However, since this point is not in issue in the context of the 377 litigation, I am not pressing it here. What transpires from this discussion then is that the Supreme Court was empowered to admit the Navtej writ even as the 377 curative is “pending.”

  1. HOW DOES THE NAVTEJ ORDER AFFECT THE 377 CURATIVE?

The Navtej order does not affect the 377 curative in any way. As of now, the 377 curative petition has not been admitted. The last hearing on the curative matter was on the 2nd of February, 2016. In that hearing, a three judge bench of the Supreme Court ordered that the petition should be placed before a five judge bench to decide whether the petition should be admitted, in the first instance. If the five judge bench admits the curative, it will then decide whether the original Supreme Court decision was right on the law. Therefore, at this time, the curative has not been admitted, and the review process being over, for all practical purposes, the decision of the Supreme Court is final [See on this point, Ashiq Hussain Faktoo, SC 2008]. For an analogy, consider a judgment of the High Court that has not been appealed to the Supreme Court. Although hypothetically, the decision could be overturned, until an appeal is admitted to the Supreme Court, the decision is final as between the parties. Similarly, until the Supreme Court admits the curative petition, the review decision is final. The curative and the Navtej are two entirely different beasts; the results of one, leave alone an intermittent order, does not automatically decide the fate of the other.

Now, the lawyers of the Navtej writ have two choices. The first is to argue that the Navtej writ be tagged along with the curative hearing, assuming the curative is admitted. In that situation, the fates of these two petitions will be tied. The other, and perhaps, the more profitable path is for the lawyers to argue that the curative and the writ be heard separately so that assuming that the 377 curative fails to overturn Koushal on merits, there is yet another chance for the constitutionality of 377 to be decided via the Navtej writ. This has been done once before in the case of Abdul Gabbar Khan. Khan appealed in the Supreme Court claiming compensation on the basis of the Bhopal gas tragedy settlement. A curative on the same issue was already pending in the Supreme Court[8].  Khan’s counsel was successfully able to argue that the appeal be decided after the court had heard the curative even though the court had suggested that the appeal and the curative be tagged together.

[1] S. 377 of the Indian Penal Code criminalize carnal intercourse against the order of nature.

[2] Fundamental right to life.

[3] What I refer to collectively as the 377 curative is actually a bunch of curative petitions filed by Naz Foundation, parents of LGBT persons, professors, mental health professionals, Academics Ratna Kapur et. al., Voices Against 377 and Mr. X.

[4] The different curative petitioners have tried to demonstrate a miscarriage of justice through different techniques. For example, Naz has tried to show that the Koushal decision omitted to consider the amended S. 375 while pronouncing the decision. The mental health professionals have chiefly argued that the expert opinion and scientific evidence provided by them on homosexuality was not considered by the Supreme Court. For other arguments raised to demonstrate miscarriage of justice see, curative petitions filed by some of the other petitioners here.

[5] The judges who decided the actual Supreme Court judgment complained of had since retired.

[6] Primarily, that the right to sexuality, sexual autonomy and sexual partner are rights protected by the fundamental right to life guaranteed by the Indian constitution (Article 21).

[7] See especially on this point, para 21 of Shaukat Hussain Guru v. Delhi Writ Petition (Criminal) 106/2007) and U.P.S.C. v. Subhash Chandra Dixit Civil Appeal 8609/2013.

[8] At the last hearing on this matter, the court directed that the matter be heard in open court to decide the issue of admission, in the first instance. The matter has since not been listed for such a hearing.

My thanks to Ramki and Adv. Mihir Samson for helping me figure out where curatives and the Navtej writ can be found online. My thanks also to my young cousin, Smriti, who helped in so many intangible ways to make sure that this blog goes up on time. 

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K. Gowtham Subramaniyam v. Controller of Examination Anna University W.P. No. 7536/2017

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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:

  1. 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)[1] and anatomical approximation post SRS, but not on psychological tests.
  2. 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.
  3. 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.
  1. 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:

  1. A gender identity disorder diagnosis
  2. Hormone replacement therapy
  3. Psychological testing and certification declaring petitioner fit for surgery
  4. SRS

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.

  1. 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.

  1. 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:

  1. A Chief Medical Officer;
  2. Social welfare officer;
  3. Psychologist or psychiatrist;
  4. Representative of transgender community;
  5. 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].

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
Shivani Bhat

 

(Delhi HC)

 No No No
Shivam Santosh Dewagan

 

(Chhattisgarh HC)

 Yes Yes No
K. Gowtham

 

(Mad. HC)

 Yes Yes No
Prithika Yashini

(Mad. HC)

 Yes Arguably No but details of medical certificates examined are not reproduced in judgment. No
S. Swapna

(Mad. HC)

 Yes Id. 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.

 

[1] 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.

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Shivam Santosh Dewangan v. State of Chhattisgarh 2016 CriLJ2819

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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.”[1] 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.[2] 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.[3] 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.[4] 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.[5] 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.

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[1] Para 12.

[2] See Section 437 of the Code of Criminal Procedure, 1973: When Bail May be Taken in Case of Non-Bailable Offence.

[3] 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.

[4] 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

[5] 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.