On the 3rd of September, 2019, a division bench of the Gauhati High Court decided whether an unsubstantiated (as opposed to unproven) allegation of homosexuality by one of the spouses against the other in a divorce case amounts to cruelty. Summarily, the court answered this question in the affirmative. This is the first recorded instance in which an Indian court has taken a stance on a homosexuality allegation in a divorce case. Though these allegations are raised in divorce cases from time to time, they are always ignored at the argumentation staged, and have never been attended to by the judges in their judgment. In this blog, I will summarize the facts of the case very briefly and discuss the circumstances under which the homosexuality allegation was raised and decided by the court.
Mohammed Arif Jameel and Anr v. Union of India and Ors. (WP 6435/2020)
DIRECTIONS WITH RESPECT TO CORONAVIRUS
On the 9th of April, 2020, a division bench of the Karnataka High Court directed the Karnataka Government to institute measures for vulnerable communities, including the transgender community, in the light of the coronavirus outbreak and the resulting lockdown. Though this interim order does not identify its legal basis, these directions have arguably been issued under Article 226 of the Indian Constitution as they have been made in connection with writ petitions filed in the High Court seeking relief.
Medical Control of Legal Gender Recognition in India and the Nordic Countries
This blog is based on a talk that Dr Daniela Alaattinoğlu and I delivered recently at the University of Oxford. As we delivered the talk together, we have also authored this text together. As its title suggests, the main finding of the talk was that the medical field exercises immense control over the legal gender recognition of trans persons. Even when the law is based only on self-identification, and no role has been carved out for medical professionals, they seem to exercise a great influence in the desire and ability of a trans person to get legal gender recognition. Let us look closer at the Nordic countries and India.
Monu Rajput v. State and Ors. W.P. (Crl.) 1879/2019 and Crl. M.A. 30835/2019
Habeas Corpus Petition in Delhi High Court
On the 12th of July, 2019, a division bench of the Delhi High Court decided whether a habeas corpus petition filed by a transgender man (Monu) to set his romantic partner at liberty from her family members, could be allowed. The petition was filed against the State to ensure that if the detenue was indeed found to be detained against her will, she be at once set at liberty. Summarily, the court rejected the petition.
Surbhi Trivedi v. Gaurav Trivedi Misc. Petition No. 4820 of 2018
The practical limits of the gender determination aspect of the NALSA decision were tested on the 4th of October, 2019 when a single judge bench of the Madhya Pradesh High Court ordered a gender determination test in a matrimonial dispute. In this blog, I will summarize the facts and the decision, and demonstrate that: 1. There is still confusion about the definition of transgender, and intersex persons are considered to be transgender; and 2. That this decision provides a legal limitation to the fundamental right to self-determined gender identity.
X v. State of Uttarakhand and Ors. Writ Petition (Criminal) No. 28 of 2019
On the 31st of May, 2019, a single judge bench of the Uttarakhand High Court decided whether a trans-woman’s allegation of rape should be recorded under Section 375 or Section 377 of the Indian Penal Code, 1860 (‘IPC’)? In deciding that the trans-woman had a right to self-determine her gender, ‘without further confirmation from any authority’, this case is a rare example of the correct application of the NALSA decision. It breaks from the trend observed in the Indian courts posts NALSA that when a person seeks to identify in a gender different from what the society has perceived her to be, the courts rely on a sex re-assignment surgery (and in one case, a psychological exam) to grant that right.
Rano and Ors. v. State of Uttarakhand Writ Petition Criminal Nos. 1794 and 1785 of 2018
On the 28th of September, 2018, a division bench of the Uttarakhand High Court ordered the State government to implement the NALSA[1] directions. In addition to the NALSA directions, the court also gave certain additional directions to the State government with respect to the transgender population. The court granted a six month period for the implementation of these directions (i.e. by the 15th of March, 2019) The writ petitions filed in this case were filed by transgender persons and specifically contended that some private persons were interfering in the area of operation. The petition did not clarify the nature or scope of the interference. The judgment reiterated the ruling in NALSA and took judicial notice of the fact that the directions passed by the Supreme Court in NALSA had not been implemented by the State government. The NALSA directions, in full were as follows:
This blog is on break and will resume with posts from October, 2019.
The Role of International Law in Major LGBT Decisions in India
This blog is based on a lecture that I delivered at the Leiden University’s Summer School on Sexual Orientation and Gender Identity in International Law (August 2019). In this blog, I argue that international law played a supportive role in the two major LGBT[1] decisions in India: NALSA v. Union of India, and Navtej Johar v. Union of India. These two decisions, especially the latter, was one in a long series of litigation spanning over two decades that ushered in a new era of rights for the LGBT population in India.
As per Article 38(1) of the Statute of the International Court of Justice, the sources of international law are: 1. International conventions, by which are meant treaties and agreements concluded between States or regions. Modifications of the treaties through devices such as Optional Protocols also count as international conventions. 2. Custom, by which is meant constant and uniform State practice, and belief that the practice is required by law. State practice is demonstrable by means such as diplomatic correspondence, government policy statements, press releases, official manuals etc. 3. General Principles of Law, in which are included certain Jus Cogens norms such as prohibition of torture and slavery, and agreement about the fundamental principle of humanitarian conflict (no murder of civilians in occupied territory, no deportation of civilians to slave labour etc.). 4. Judicial decisions and the writings of the most highly qualified publicists of various nations. While the decisions of the International Court of Justice have no binding effect expect between the parties to the dispute, and decisions of courts of foreign nations do not count as a source of international law, this source of international law includes UN Committee reports and publications of well known international human rights observers such as Amnesty International, Human Rights Watch etc.
A simple mapping exercise will reveal that in the NALSA case, sources falling under categories 1 and 4 mentioned above, were cited. Source 1: international conventions: Universal Declaration of Human Rights; International Convention on Economic, Social and Cultural Rights; Convention Against Torture; Recitals of the European Parliament; General Comment 20 of the Convention on Elimination of Discrimination Against Women, General Comment No. 2 on the Committee on Torture (it is arguable whether General Comments form a source of international law). Source 4: 2009 report of the Committee on Economic, Social and Cultural Rights.
Similarly, the Navtej Johar decision relied on international law sources, specifically source 4. Justice Dipak Misra’s decision relied on a judgment rendered by the Human Rights Committee and another by the European Court of Human Rights. Justice Chandrachud relied on a World Health Organization Report, UNAIDS and so on.
However, these sources could not have independently led the decision in its final direction. International law does not become automatically binding in India. Article 253 of the Indian constitution empowers the Parliament to legislate in order to give effect to international obligations. Unless such legislation occurs, international obligations can only be used as an interpretive aid to understand various provisions, including constitutional provisions. However, if the un-legislated international obligation is contrary to Indian law, Indian law will take superintendence. This part is explicitly laid down in the NALSA case in these words:
Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and to promote the object of constitutional guarantee. Principles discussed hereinbefore on TGs and the International Conventions, including Yogyakarta principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognized and followed, which has sufficient legal and historical justification in our country. [para 53].
Finally, the decision in the two cases were grounded in fundamental rights: Articles 14, 15, 19, and 21 of the Indian constitution, and the State obligations that stem from those Articles. For example, to see the ratio decidendi in the Navtej Johar case, see this post . While international law was cited and influenced the decision of these two cases by showing the direction in which the international organizations of repute were moving, the Indian decisions were rooted firmly in the fundamental rights doctrine in Articles 14, 15, 19, and 21. Had the doctrine in those Articles not been developed enough to answer the legal questions raised by these cases, international law, for all its progressive commands, could not have turned the decisions in favour of greater rights for the LGBT community.
My thanks to Miriam Schwarz for suggesting this as a blog topic for this month.
[1]The acronym LGBT stands for lesbian, gay, bisexual ,and transgender. The definition of transgender according to the Indian Supreme Court is quite broad and includes all persons who identify in a gender different from the one assigned at birth, whether or not they have undergo re-affirmation surgery, and includes the different communities known by regional names, and gender fluid and non-binary persons.
Arunkumar and Sreeja v. The State WP(MD) No. 4125 of 2019
On the 22nd of April, 2019, a single judge bench of the Madras High Court directed the State to issue a marriage certificate to a man and transgender woman. 1. This is the first case to recognize the right to marriage of a transgender person. Importantly, the court did not require the transgender woman to have undergone SRS to be recognized as a woman. 2. The case also furthered the legal jurisprudence regarding intersex persons and directed the State government to issue a notification to ban normalizing surgeries for intersex babies, giving it eight weeks to comply with this direction. This blog will focus on the two above-mentioned features of the case.
Facts of the Case
Mr. Arunkumar married Ms. Sreeja in a temple in Tuticorin (Tamil Nadu). Arunkumar was assigned male at birth whereas Sreeja was born with an intersex condition. While she was assigned gender female at birth at school she was registered as male and had a male name. In her Aadhar card, her identity was displayed as transgender. Arguably, her socially perceived gender was that of male and that is why even though her birth certificate records her gender as female, when she adopts a female name and marries a man the issue becomes one of transgender marriage and not marriage between two persons of different sexes. In the case. The marriage was performed according to Hindu rites and customs and certified as validly performed by the administrative officer of the village. However, the temple authorities declined to vouch for the marriage. This fact raises some questions. Whose authorization: the administrative officer’s or the temple authorities, is necessary to claim that a marriage is performed as per Hindu rites and customs. This question is not raised in the case but given that the judgment does not question the validity of the marriage on this count, arguably, a marriage can be said to performed according to Hindu rites and customs even if just the administrative officer (not usually an authority on religious rites) certifies it so in opposition to the temple authorities. Moving ahead from this digression, the couple was required to register their marriage as per Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. When they approached the Joint Registrar for the same, he opposed to register it. The couple met with a similar refusal when they appealed his decision before the Registrar of the District. They challenged the decision of the Registrar in a Writ of Mandamus filed in the Madras High Court.
In the High Court, the counsel for the State of Tamil Nadu defended the Registrars’ refusal on two grounds:
- As per the Tamil Nadu Registration of Marriage Act, 2009, a Registrar could refuse to register a marriage if they were satisfied that the marriage was not performed under the personal law, custom or tradition as the claim may be. In the present case, the State argued that the temple authorities did not certify the marriage, providing valid grounds for refusal. As mentioned before, the judgment did not focus on this contention at all. However, if similar registration Acts exist in other States as well then in the future, one may reasonably expect that this may become a ground of contention in a case. In this situation, the court will have to turn its attention to whether this activity of the temple can be subject to constitutional scrutiny, and if so whether the criteria that temples have reserved for issuing such certificates are constitutional.
- Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for the solemnization of a Hindu marriage. Although the Section does not state that a valid marriage can be entered into only between a man and a woman, the Section has been legally understood to imply this. The Section uses the word “bridegroom” and “bride” only to state the minimum age that these persons must be to enter into marriage but does not state that they must marry one another. However, the word “bride” is not defined in the Act. The counsel for the State argued that a bride is a “woman on her wedding day” [as defined in the Oxford Advanced Learner’s Dictionary of Current English]. As Sreeja was not a woman but a transgender person, she could not be a bride under the Act, and therefore the marriage was not solemnized as per the terms of the Act.
Reasoning of the Court
The reasoning of the court was prefaced by recapping certain propositions of law recognized in the NALSA case:
- Fundamental Right to Gender Identity: Ignoring the first contention, the court focussed on the second one and refused to accept it in the light of the NALSA decision. The NALSA decision had stated that transgender persons have a fundamental right to decide their gender identity as either man, woman or third gender. Incidentally, the court also found support for this legal proposition in Hindu tradition and cited the story of Aravan and Shikhandi and modern neuroscience of Prof. V.S. Ramachandran which validates the argument of internal and external gender mismatch experienced by the transgender population.
- Right to Equality: the court also referenced NALSA to reiterate that the fundamental right to equality was available to “all persons” and not just men and women. Therefore, Article 14 (equality) finds discrimination on the basis of gender identity unconstitutional.
- Dignity and Privacy: the court also found, following NALSA, that the gender identity discrimination offends the fundamental right to dignity and privacy protected under Article 21.
- Fundamental Right to Gender Expression: the court also reiterated NALSA in saying that gender expression and presentation are protected under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transgender person’s expression of the same [NALSA, para 72].
Thereafter, the decision of the court was based on two proposition of law, and and one guiding principle of interpretation.
- 1. Proposition of law: The right to marry: Accordingly, the court ruled that the construction of the word “bride” could not be static and had to be interpreted as per the current conditions. Accordingly, given that transgender persons have the fundamental right to a self-identified gender, “bride” under S. 5 of the Hindu Marriage Act, 1955 should be read to mean not just a person assigned female at birth, but also a transgender or intersex person who identifies as female. It found that Article 16 of the Universal Declaration of Human Rights (UDHR) grants men and women the right to marry, and in a recent Supreme Court case [Shafin Jahan 2018], the Supreme Court had held the right to marry as a fundamental right protected under Article 21. The court also found support for this proposition in the NALSA judgment itself which had predicted that civil right like marriage could be made available to the transgender population once their gender identity is given due recognition in law.
- Proposition of law: the freedom of religion: the court found that denying two practicing Hindus (the petitioners) to marry under Hindu law was a violation of their freedom of religion because it prohibited
- Guiding Principle of Interpretation: the court also noted that the constitution is an enabling document and judged on its standards, it “would be absurd” to deny to the transgender population rights already available to the mainstream.
Jurisprudence Regarding Intersex Persons
The court started by defining intersex persons partially correctly when it noted that intersex children are “children who are born with genitalia that belongs to neither category” [para 16]. This is not correct. While some intersex persons may have ambiguous genitalia, some intersex persons may have the external genitalia associated with one sex but they might have internal sexual organs not typically associated with that sex. For example, a person may be assigned gender male at birth because he possess external sexual characteristics of a typical male but they may have a uterus. Alternatively, they might have a chromosomal make up different from the one associated with males (XY) and females (XX). However, importantly, the court did note that the parents and the doctors perform corrective surgeries on such children when they are born found such surgeries in violation of NALSA (which prohibited SRS for gender recognition) and also Article 39 of the Indian constitution which directs the State to give children the opportunities and facilities to develop in a health manner in conditions of freedom and dignity. It also stated that intersex children are entitled to stay with their families and the onus fell on the government to launch programmes to address parental shame upon the birth of an intersex child.