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Swati Bidhan Baruah v. The State of Assam PIL 15/2017

On the 22nd of May, 2018, a division bench of the Gauhati High Court ordered the Government of Assam to implement the directions of the NALSA[1] case within 6 months (i.e. by 22nd November, 2018). A transgender person who was the founder of the All Assam Transgender Association had filed a public interest litigation in the Gauhati High Court praying that the NALSA directions be implemented by the Assam Government. In the NALSA case, the Supreme Court of India had recognized that all fundamental rights apply to transgender persons. Accordingly, they had passed directions to the Union and State government with respect to the transgender population. Summarily, the directions had ordered the following: 1. It had recognized the fundamental right of self- identification to transgender persons, 2. It had directed the State to provide reservations to that population in educational institutions and public appointments, 3. To operate separate HIV sero-surveillance centres for them, 4. To take step to address the mental and emotional stressors faced by this population and also educate the public about them, 5. To provide separate public toilets, 6. To provide them proper medical care in hospitals, and 7. That the recommendations of the expert committee studying the problems of the transgender population be implemented within 6 months. The directions, in full are as follows:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

However, the Assam State government had taken no steps to implement the directions of the Supreme Court. The High Court noted that it was only after receiving notice from the court in this matter that the government had constituted a committee to study the problems faced by the transgender community. The High Court directed the committee to submit its recommendations to the government within 3 months of the order and the government to implement the recommendations within 6 months. Separate from the case, a recent study published in June, 2018, sent right to information applications (RTI) to various departments of the central and state governments to inquire into their progress with the implementation of the NALSA directions.[2] Responses received until April 2017 were analyzed. The analysis with respect to Assam has shown the following:

  1. Assam provides employment and issues identity cards, to transgender persons, as peer educators (PE) under a targeted intervention scheme. The scheme is aimed at reducing the vulnerabilities of the transgender population to HIV/AIDS and covers up to 240 transgender persons.
  2. Assam replied that it has set up a screening committee to issue transgender certificates.[3] Criteria to issue these certificates were not mentioned.
  3. Assam stated that it did not require a medical certificate to grant an identity card as PE to a transgender person.[4]
  4. Assam stated that its government hospitals provide health care to transgender persons, just like to everyone else.[5]
  5. Assam stated that social welfare schemes are at their stage of inception in accordance with the National AIDS Control Organization prescription. It is unclear what ‘inception’ means in this context.[6]
  6. Assam stated that it conducts counselling programmes for the transgender population.[7]
  7. Assam stated that it holds meetings to spread awareness about the transgender community.[8]
  8. Assam stated that it had set up a transgender and intersex persons NGO crisis committee.[9]

[1] National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012.[2] Dipika Jain, Gauri Pillai, Surabhi Shukla and Justin Jos, “Bureaucratization of Transgender Rights: Perspective from the Ground 14 SOCIO-LEGAL REVIEW (2018) 98 [“RTI Article”].

[3] RTI Article, 111.

[4]  RTI Article, 114.

[5] RTI Article, 124.

[6] RTI Article, 128.

[7] RTI Article, 133.

[8] RTI Article, 135.

[9] RTI Article, 137.

2

Navtej Singh Johar and Ors. v. Union of India Writ Petition Criminal (No.) 76/2016

The arc of the moral universe is long, but it bends towards justice.

Dr. Martin Luther King (cited by Justice D.Y.Chandrachud).

On the 6th of September, 2018, a 5 judge bench of the Indian Supreme Court unanimously found that S. 377 of the penal code violates Articles 14, 19, and 21 of the Constitution of India[1]. This means that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. Bestiality, sex with minors, and non-consensual sexual activity between LGBT persons continue to be criminal. The decision was unanimous in the sense that all judges reached the conclusion mentioned above. However, the judgment was plural in the sense that they offered different reasons for reaching those conclusions. While this judgment is rich in many philosophical strains, this blog will study those reasons.

  1. 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 (“377”) criminalized carnal intercourse against the order of nature which was punished by an imprisonment term extending up to 10 years:

  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. [Emphasis mine].

Agitation against the section began in the late 1980s after the outbreak of AIDS in India and the section was challenged for the first time in the Delhi High Court in 1994. This challenge was quickly dismissed. Since then, this section has been challenged multiple times. The longest running legal challenge to this section was initiated by Naz Foundation, a NGO working in the field of HIV/AIDS. This action started in 2001 in the Delhi High Court (Naz Foundation case) and in 2013, the matter reached the highest court of the land, which found it constitutional (Koushal decision). That decision was awaiting a curative admission hearing when the Navtej Writ was filed in 2016 alleging that 377 violated the right to, sexuality, sexual autonomy, and sexual partner, rights that the petitioners argued, were protected under the fundamental right to life (Article 21). By this decision, the court resolved the 377 matter and overruled Koushal. In other words, this decision concludes the 377 question and there will be no admission hearing on the curative petition filed in the Koushal case. For more on curative petitions, see here. Before delving into the specific rights, I mention below, 3 notable philosophical strains that frame the decision:

  1. Transformative constitutionalism: it is the idea that the constitution is created for the progressive realization of more and more rights. It is accompanied by the concept of non-retrogression which states that the march of rights must be forward and not backward.
  2. Constitutional morality: it is the idea that the constitution embeds commitment to certain values, which must be upheld even if they are not overtly mentioned in an Article. All judges had different conclusions as to what these values were.
  3. Fundamental rights apply regardless of number: fundamental rights are not meant for the protection of the majority. These are guarantees that each and every person/citizen enjoys. These rights cannot be denied to a community just because they are a small community. That said, the court accepted the research that 8-10% of the population is LGBT. The court uses the term LGBT so I use it here. However, it is a shorthand for all non-heterosexual sexual desire regardless of labels.

Right to Equality

Article 14

Article 14 of the Indian Constitution guarantees the fundamental right to equality, to all persons:

“14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

While “equality before the law” has been understood as a command to the State to treat all persons equally, “equal protection of the laws” has been understood as a command to the State to create conditions of equality between different members of the society (for example through affirmative action measures). Suppose A alleges that a particular law treats them unequally compared to B. The test applied to check a violation of equality is to ask: 1. Whether there is any intelligible differentia separating A from B or is this an arbitrary division?; and 2. Whether there is a reasonable nexus between this differential treatment of A and B and the proposed legitimate State goal, or is the connection tenuous?

Difference Between Natural and Unnatural?: A majority of the court[2] found that there is no intelligible way to differentiate natural forms of having sex from unnatural forms of the same activity, especially because sex is no longer associated just with procreation even in legal discourse. On the contrary, they said that natural sex is whatever kind of sex 2 consenting adults decide to participate in. Mental health studies worldwide have found that being LGBT is not a mental disorder or a psychological problem. 1500 species occurring in nature display homosexual orientation and it is a natural variation of sexuality. 377 criminalized sexual acts based only on the fact of sexual orientation, a naturally occurring trait. Justice Chandrachud went so far as to deconstruct the meaning of the word “natural” itself and made 2 notable points: 1. “natural” was a social construct that has historically been used to create a hierarchical society. He cited miscegenation laws which segregated between black and white populations as an example. 2. Not all “naturally” occurring things were desirable (e.g. death) and not all “unnatural” things were undesirable (e.g. heart transplant). In fact, all justices found that this law disproportionately targeted LGBT persons such that the real distinction created by this law was not between natural and unnatural, but between LGBT and non-LGBT persons.

Objective of the Law: 2 judges found that the objective of 377 was to protect women and children subjected to unwilling carnal intercourse. On the other hand 2 other judges found that the objective of the law was to impose Victorian mores of sex on the Indian society – i.e. sex only for procreation.[3] One justice did not overtly identify any State objective behind the law. Whichever objective they identified, they all agreed that 377 does not meet it. If the objective was to protect women and children then the new rape law and POCSO met it[4]. In fact by virtue of the new rape provision all kinds of non-consensual sexual acts by men against women were rape[5]. Therefore, the justices reasoned, all consensual acts, being not rape, were natural and out of the purview of 377. However, all sex acts of LGBT persons was per se “unnatural.” Therefore LGBT persons were subjected to a criminal law just by virtue of being LGBT. The judges found this distinction based on a naturally occurring trait and supported only by prejudice[6], a constitutionally unjustifiable reason. If the objective was to impose Victorian mores of procreative sex then of course 377 only unevenly met it because all forms of sex, whether or not procreative, were allowed between heterosexual couples.[7]

Article 15

While Article 14 provides a general equality guarantee, Article 15 specifically prohibits discrimination on the basis of sex:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

While traditionally this Article has been used to strike down discriminatory laws against women, 2 judges of this court endorsed a growing trend to understand Article 15 to include a freedom from sexual orientation discrimination as well. They reasoned that the constitution prohibited sex based discrimination because sex was the site at which gender roles became fixed and freedom and capacities became pre-determined. Article 15 intended to strike at these presumptions which included the presumption that men desire only woman and woman desire only men. Consequently, as 377 furthered this sex based stereotype, it violated Article 15 of the constitution. Other judges did not engage with this thread.

Right to Freedom of Expression

Article 19 of the constitution guarantees to every citizen, freedom of expression, among other things. This freedom can be reasonably restricted in the interest of decency and morality.[8] Not all justices dwelled on this Article but a majority[9] of the court found that freedom of expression includes the freedom to express oneself sexually, with a consenting partner of any sex. Justices Misra and Khanwilkar specifically pointed out such expression does not violate decency or morality, because these concepts are not majoritarian in character. Therefore, societal disgust with this population is not a constitutionally permissible reason to restrict the freedom of expression of LGBT persons.

Right to Life and the Scope of Privacy

Article 21 of the constitution guarantees to every person, life and liberty:

“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Previously, another bench of the same court had found that a fundamental right to privacy was implicit in this guarantee.[10] That court had found autonomy of choice and dignity i.e. respect for the choice, to be the building blocks of privacy. That court had also found the right to sexual orientation to be intrinsically protected by privacy. A majority of this court endorsed that reasoning and extended it further to say that an autonomy based conception of privacy recognizes the freedom of persons to a sexual partner of their choosing and to make other intimate decisions.[11] A majority of the court also noted that sexual expression of LGBT persons needn’t be confined to spatially private places. In other words, LGBT persons can express their relationships even in public subject to other laws that regulate public displays of affection.[12] In fact, Justice D.Y.Chandrachud went so far as to deconstruct the word “private” by pointing out that many a times, homes are also not private places because they are the epicentre of heteronormativity. However, it is to be noted that the right to sexual intercourse has only been granted in private spaces by a majority of the court.

Ratio of the Case

Although, it is doubtful that this judgment will ever be read in a narrow technical way, if we must, we can zero in on a ratio decidendi of the case–i.e. the reasons for the decision. A ratio decidendi will emerge when: 1. 3 or more judges find that the same legal provisions have been violated; 2. For the same reasons. As such, the following ratio emerges from this case.

    1. Although the distinction between natural and unnatural sex is indeterminate, 377 classed all consensual non-heterosexual sexual activities as “unnatural” whereas all consensual heterosexual activities were “natural.” This distinction was based only the sexual orientation of persons involved and does not further any legitimate State objective being rooted only in prejudice against LGBT persons. Therefore, it violated Article 14 of the constitution. All forms of consensual sex between adults is natural.
    2. 377 violated Article 19 because the freedom of expression includes freedom to express oneself sexually with a consenting partner regardless of sexual orientation.
    3. 377 violated Article 21 because the right to life includes the right to sexual partner of choice. They can exercise this right in public and private, subject to the same laws which apply to non-LGBT persons.
  1. On Marriage This case was concerned expressly with 377 and the marriage question was not addressed by any judge directly, except J. Chandrachud, who stated that all persons should be eligible for this institutional recognition of their love regardless of sex and gender. Justices Misra and Khanwilkar also opined that Article 21 protects a person’s right to a union. However, they immediately mentioned that this case was not about marriage. As such it would be incorrect to say that this case has provided marriage rights to LGBT persons. However, it has certainly laid the philosophical foundation for marriage, and many other rights—anti-discrimination, parenting etc., just to name a few.  Law will incrementally advance to provide all these rights to LGBT persons. The future is equal.
  1. [1] Constitution of India, 1950.[2] Justices Dipak Misra, A.M. Khanwilkar, Indu Malhotra and Justice D.Y.Chandrachud. Justice Nariman did not address this strain.

    [3] Justices Rohinton Nariman and D.Y.Chandrachud.

    [4] Except marital rape. Protection of Children from Sexual Offences Act, 2012.

    [5] Except marital rape.

    [6] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

    [7] Justices Rohinton Nariman and D.Y.Chandrachud.

    [8] (1) All citizens shall have the right

    (a) to freedom of speech and expression;

    (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

    [9] Justices Dipka Misra, A.M.Khanwilkar, and Indu Malhotra.

    [10] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1.

    [11] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

    [12] Justices Dipka Misra, A.M.Khanwilkar, and D.Y.Chandrachud.

1

Tessy James v. The Director General of Police, Thiruvananthapuram and Ors. W.P. Crl. No. 215/2018

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

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

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 judgment.

CHANGE IN SUBSTANTIVE LAW DURING PENDING APPEAL

According to the 3rd May judgment, 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. 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

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 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 women candidates? 2. Is it a good strategy to pit the interests of 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-up 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 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 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 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 women assigned female at birth? 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 arguably a person assigned male at birth having all the strength and speed advantage 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 international regulatory body for sports, the IAAF[3] were not able to prove the direct co-relation between increased testosterone and better athletic performance (for the fuller argument see the case and here). More recently, they have submitted some new material[4] before the CAS in which they have tried to show that there may be a connection between testosterone and athletic performance in the 400-1500 metre races although they have since abandoned their claim that testosterone lends an advantage in shorter races. There are existing critiques of these new IAAF submissions as well, but even if we assume for the moment that these submissions are true, for our present purpose of 100 metres, the testosterone advantage argument seems to fail.  In any case, the CAS, in the 2015 interim order in the Duttee Chand case had found that it is lean body mass (LBM) and not testosterone which may give men an advantage over women in sport. However, it also noted that the scientific and medical properties need to be studied before anything specific can be said. It also noted that LBM depends on age, discipline and other factors. Therefore, it may be time to reconsider our opinions on the athletic abilities of males and females in the light of this scientific evaluation; at least treat it as an open question until the science behind this case be tested and weighed in light of environmental and social factors.

PITTING INTERESTS OF WOMEN AGAINST TRANSGENDER PERSONS

Second, this case pitches the interests of women against transgender persons. 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

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

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.