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

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 Kaushal 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 conspires 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

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.

Justice Puttaswamy (Retd.) and Anr. v. Union of India and Ors. Writ Petition (Civil) No. 494/2012

Note: Part 2 of Kirankumar has been postponed 
to October 2017 in light of the privacy decision.

1. THE PRIVACY DECISION[1]

On the 24th of August, 2017, a nine judge bench of the Supreme Court of India decided whether there is a fundamental right to privacy. Summarily and without tracing it’s constitutional genealogy, the court decided that there exists, in the Indian constitutional scheme, an inalienable, fundamental right to privacy drawing life blood primarily from Article 21 of the Constitution of India, 1950 (“constitution”). However, this right was found not to be absolute and different judges on the bench stated different reasons and tests for State interference with it. In this blog, I will discuss implications of the judgment on the 377[2] case and rights related to sexual orientation and gender identity (SOGI), generally.

Before doing that, we need to be clear that there is no clear majority opinion, in the ordinary sense of the word, in this case. It is a nine judge bench and therefore, an opinion endorsed by five or more judges would count as a majority opinion. However, here, there is one opinion endorsed by 4 judges (Chandrachud opinion) and 5 individual opinions, all of which find a fundamental right to privacy but are different in particulars. Such a situation is called a plurality and to find a majority on any one point, 5 or more judges should have the same opinion that point.

2. IMPLICATIONS FOR THE 377 CASE

a. 377 Matter is Still Undecided

To be sure, the court did not decide the 377[3] issue. In fact, 5 judges of the court categorically stated that the 377 matter is pending before another bench and so they leave its validity be decided by the appropriate proceeding:

Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” [para 128] (Chandrachud opinion)

“It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench.” [para 81, Kaul J., upon finding that the fundamental right to privacy extended to LGBT persons regardless of how minuscule they were in numbers.]

b. Sexual Orientation Recognized as a Fundamental Right

5 Judges of the court clearly found that sexual orientation is “undoubtedly”[4] an essential attribute of privacy.[5] If privacy is a fundamental right and sexual orientation is an essential attribute of privacy then the right to sexual orientation is a fundamental right as well. The Supreme Court in National Legal Services Authority v. Union of India [“NALSA”] had noted that self defined sexual orientation is, “integral to … personality and is one of the most basic aspects of self-determination, dignity and freedom” [NALSA, para 20], and had in Suresh Kumar Koushal[6] noted that S. 377 does not criminalize any particular sexual orientation.[7] However, neither of the judgments had gone so far as to expressly declare the right to sexual orientation as a fundamental right.

The reader will recall that the Supreme Court has already noted in NALSA that the right to self determined gender identity is a fundamental right.[8] Therefore, the sum total of all these cases is that now there is an expressly declared fundamental right to sexual orientation in addition to gender identity.

c. Two Arguments for Personal Intimacies to be Essential Entitlements under Privacy

The recognition of sexual orientation as a fundamental right should by itself lead the court to find S.377 unconstitutional as the section stands in the way of the fulfilment of a core aspect of sexual orientation—sex, with a person of choice, and in a manner of choice. 2 other opinions in the judgment should be highly persuasive of this point. The first is the 4 judge Chandrachud opinion finding that “personal intimacies” are an entitlement under the right to privacy [Conclusion P]. As per the Oxford English Dictionary, the word “intimacy” means familiarity, friendship, but also sexual intercourse.[9] If the right to privacy is an inalienable fundamental right and it includes personal intimacies then S.377 which criminalizes the personal intimacies of LGBT persons[10] cannot stand constitutional scrutiny because it will violate the fundamental right to privacy. This conclusion is doubly solidified in light of the court’s restatement of a crucial constitutional law principle: to withstand constitutional scrutiny, an impugned section should survive the scrutiny of all fundamental rights. The second is the Justice Nariman opinion which finds that the fundamental right to privacy will protect “fundamental personal choices.”[11] Although he does not explain what that phrase means, his judgment illustrates “personal choices” as including “rights of same sex couples—including the right to marry…”[12] This provides grounds for arguing that Nariman J. too, finds that personal intimacies of all persons, regardless of SOGI, is protected by the fundamental right to privacy.[13]

3. APPLICATIONS OF THE JUDGMENT MAY OPEN UP MARRIAGE AND PARENTHOOD TO LGBT PERSONS

Finally, the 4 judge Chandrachud opinion has recognized the following list of non- exhaustive entitlements under privacy: decisions about personal intimacies, family life, procreation, home and sexual orientation [Conclusion (3)(F)]. Privacy itself has been housed primarily under Article 21. Article 21 guarantees life and liberty to all persons, regardless of sexual orientation and gender identity. Accordingly, the aforementioned entitlements also extend to all persons, regardless of SOGI. This means that this opinion has affirmed that even LGBT persons have a fundamental privacy right to home, procreation, family life etc. This coupled with Justice Nariman’s finding that personal choices protected by privacy include, “rights of same sex couples—including the right to marry…”[14] provides extremely persuasive grounds for arguing that 5 judges have stated that all persons have a right to marry, regardless of SOGI.  Additionally, the logic of the 4 judge Chandrachud opinion may also open up avenues for LGBT persons to argue for procreation related rights like surrogacy etc.

—————————————————————-

[1] My thanks to Mariyam Kamil, DPhil (law) student at the University of Oxford for hearing out and confirming my various legal conclusions re. SOGI from this decision. Mariyam researches on the constitutional right to privacy in India.

[2] S.377, Indian Penal Code, 1860.

[3] All references to 377 in this blog mean the issue of the constitutional validity of S. 377, Indian Penal Code, 1860 which criminalizes “carnal intercourse against the order of nature”, and which is pending in the Indian Supreme Court.

[4] Kaul J. Opinion; para 80.

[5] For example, paragraph 126 and Conclusion (3)(F) of the Chandrachud opinion.

[6] Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013).

[7] Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013) para 38.

[8] “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” [para 69, NALSA].

[9] https://en.oxforddictionaries.com/definition/intimacy.

[10] S.377 criminalizes the sexual lives of all those persons, whether or not LGBT, who have non-peno-vaginal sex. However, in keeping with the scope of the website, I have referred only to LGBT persons in the main text.

[11] Nariman J.; Para 81.

[12] Nariman J.; Para 46.

[13] Additionally, Chamaleshwar J. suggests that “intimate decision” is an aspect of privacy and it includes most personal life choices [Para 36]. He does not elaborate on what personal life choices are and for this reason, I have left it out of the above reasoning.  Similarly, Bobde J. states that privacy has “deep affinity” with intimacy, among other things. In its literal sense, the word affinity means closeness, liking, similarity as per the Oxford English Dictionary and therefore its unclear whether Bobde J. has counted intimacy as an aspect of privacy. For this reason, I have left it out of the reasoning. In this blog, I have tried to present the strongest arguments from the judgment for personal intimacies to be counted as a privacy entitlement.

[14] Nariman J.; Para 46.