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

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Reading Time: 4 minutes

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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Reading Time: 5 minutes

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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Reading Time: 6 minutes

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.