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Jeeva M. v. State of Karnataka WP No. 12113/2019(EDN-RES)

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On the 26th of March, 2019, a single bench of the Karnataka High Court directed the Department of Education of Karnataka State to issue circulars to educational institutions requiring them to implement the directions issued by the Supreme Court in NALSA. Additionally, it also directed the Department to expeditiously consider a representation made by a trans-masculine person for name and gender change in his school and pre-university educational records. In this blog, I will primarily argue that even if a petitioner submits sex re-assignment (SRS) certificate and psychological evaluation certificate in support of his name and gender change application, as per NALSA, the court should not consider them in making their ruling. Name and gender change applications can be made on the basis of self-determination alone. The right to a self-determined gender identity has been found to a fundamental right under Article 19(1)(a) and under the the personal autonomy guarantee of Article 21. However, the trend of the Indian courts has been to rely on SRS certificates when a person tries to change their gender and name contrary to their societal perception. I will also mention an interesting argument made in the petition regarding privacy under Article 21. This argument was made in addition to the other constitutional violations alleged in the case but I am not detailing with those arguments as they are quite standard.

1. FACTS OF THE CASE

Since the petition filed in court was publicly available, I have relied on it to draw out the facts. The petitioner was an 18 year old male whereas the respondents were the State Pre-University Education Department (PU Department) and the State Higher Secondary Education Department (SSLC).The petitioner had been assigned gender female at birth which was recorded in his birth certificate but had identified as male from a very young age. He also passed his SSLC and PU examinations with gender recorded on those pass certificates as “girl.” In line with his intention to change his name and gender to that of a male, he executed an affidavit and issued public notice in the form of newspaper advertisements in a regional daily and in a local newspaper. These procedures were in line with the general procedures specified by the Gazette of India to record a change of name. Incidentally, the Department of Publication of the Government of India has now uploaded a new performa on their website which can be used for name and gender change. The performa does not require the applicant to have undergone SRS or psychological evaluation for the same.

In addition to the Gazette process, the petitioner also underwent psychiatric assessment. The psychiatrist diagnosed the petitioner with gender identity disorder, and certified that he did not have any psychological constraints holding him back from a SRS. In India, a diagnosis of gender identity disorder is a pre-requisite for a SRS. He underwent some medical procedures to align his body with his true gender identity. On the basis of this operation and the affidavit, he obtained an Aadhar card in his true gender with a male name. The facts state that the petitioner then sent a representation to the respondents to change his name and sex in his educational records. Neither in the petition nor in the judgment do the facts reveal the contents of this representation. In order words, it is unclear whether the petitioner sent the certificate of psychiatric evaluation and the SRS certificate in the representation package. However, arguably he did, especially because the petition highlights that the respondents’ refusal to change his certificates causes grave inconvenience to the petitioner “who has undergone sex re-assignment surgery and changed his name and gender from that assigned at birth.” [writ petitioner page 8-9 and 11].

While the Pre-University Department did not reply, the Higher Secondary Education department replied to the representation stating that it would need a court order to proceed with this request. Accordingly, the petitioner filed a writ of mandamus praying that the court direct the PU Department and the SSLC department to issue new educational certificates to the petition reflecting his true gender and name.

2. ARGUMENTS OF THE PARTIES

The petitioner alleged that the respondents’ refusal to change his name and gender to male violated his right to life, equality, gender identity, dignity, and privacy under Article 14, 15, 19(1)(a) and 21. The State did not oppose the petition but stated that the representation of the petitioner will be decided on the basis of the law, after considering the requisite documents and supporting evidence accompanying of the request.

3. HOLDING OF THE COURT

The court directed the Education Department to issue circulars to educational institutions regarding the directions issued in the NALSA decision and take necessary steps to have them implemented “in an expedite manner” [para 9 of the judgment].

4. RIGHT TO PRIVACY ARGUMENT

The petitioner argued that the inaction of the respondents was a violation of the right to privacy of the petitioner because he had to constantly keep revealing his previous gender as a female until the change is made [writ petition, page 10]

5. SRS AND PSYCHOLOGICAL EXAM

It is evident from the petition that the petitioner had sent his SRS certificate and psychological evaluation certificate along with other materials in support of his representation for name and gender change. As per NALSA, the petitioner need not have sent these documents. It is unclear on what basis the court directs the Department of Education to review the representation made by the petition, but even if the petitioner sends in such documents, the courts must not rely on them because:

  1. The insistence on SRS has been ruled illegal and unethical in NALSA. Therefore, even if a petitioner has undergone SRS of his own volition and submitted those documents, the courts must categorically refuse to rely on that certificate to grant the relief. The relief must be granted on the fact that in NALSA, the Supreme Court had stated that self-determined gender identity is a fundamental right under Articles 19(1)(a) and 21, and that the court did not require anyone to undergo SRS to claim this right.
  2. The need for psychological examinations has also arguably been negatived in NALSA because:
    1. the Supreme Court stated that the right to a self-determined gender is a fundamental right with which the State cannot interfere, and a psychological exam would count as interference. (NALSA, page 78). Additionally, the court stated that the gender identity claim was based not on medical or surgical procedure, but on self-determination, and a psychological process would count as medical process. In fact, this finding of the court was based on Principle 3 of the Yogyakarta principles which in full state that, “no person may be forced to undergo any form of medical or psychological treatment, procedure or testing…based on gender identity.” [NALSA, pages 18-19, 85]
    2. Within the personal autonomy protection of Article 21 is included a positive right to a self-determined gender and a negative right to resist interference by others, and a psychological exam would count as interference (NALSA, page 80-81).
    3. In NALSA, the Supreme Court has stated that “determination of gender to which a person belongs is to be decided by the person concerned.” [NALSA, page 84].
    4. The court does not identify a role for a psychologist/psychiatrist in the entire NALSA judgment.

 

My thanks to Upasana Garnaik for telling me about this case. 

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Shampa Singha v. The State of West Bengal & Ors. WP 23120(W)of 2018

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On the 29th of January, 2019, a division bench of the Calcutta High Court applied the Navtej Johar decision to a lesbian couple, holding that consensual co-habitation and intercourse between adults of the same sex does not fall within the ambit of S.377. As in the Sreeja case, the sexual relationship between the two women involved was openly mentioned in the court. The facts of the case are not entirely clear but it is evident that the writ is filed by one of the partners. Presumably, one of the partners, had returned to her mother and the petitioner partner had filed a writ alleging that the mother was holding her partner captive. The other partner, who had hitherto been residing with her is now inclined to stay with her own mother. There are three facets which are interesting to note about this case:

  1. Article 21

Following Navtej Johar, this case also finds that the right to life under Article 21 includes an inherent right to determine, by oneself, one’s sexual orientation and sexual partner. This choice is inherent under Article 21 even if the choice is not made for procreation. Additionally, the court notes that not only is this right inherent under Article 21, it is also essential for the enjoyment of the life and liberty guaranteed under Article 21.

  1. Constitutional Morality

The court also notes that our scheme of constitutional morality does not permit objections of religion or personal morality to whittle down this inherent right (of orientation and choice of partner). It is unclear why the court specifically mentions religion as an impermissible restriction on the abovementioned right. One can conjecture that perhaps in the argumentation stage before the court, one’s religious beliefs were pleaded as a ground to deny cohabitation of the two women involved.

  1. Psychological Test

Finally, the court notes that the partner of the petitioner, whom the court calls a “victim” for unexplained reasons, has been assessed for psychological soundness. It is unclear why the court mentions it. It is also unclear whether the court ordered this test or whether this test has been performed due to extant facts of the case. Since the judgment does not summarize the facts or the arguments, it is hard to determine the appropriateness of this psychological test. However, at the outset, it can be said that a psychological test does prima facie seem out of place in this kind of case which involves two majors who want to exercise their right of whether or not to live together arguably, though not explicitly, protected under Article 21 in this case. The Navtej judgment has clearly stated that adults have a right to consensual sexual intercourse with a person of their choice regardless of sex. To avail this right, that judgment has not forwarded a requirement of psychological testing.

I am grateful to Dr. L. Ramakrishnan (Ramki) for telling me about this case. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

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TREND IN GENDER IDENTITY CLAIMS POST NALSA

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Gender identity claims are the most common kinds of claims concerning transgender persons’ rights post NALSA. In this blog, I will demonstrate a trend that has arisen in these cases. We will recall that NALSA allows transgender persons to identify as male, female or third gender and does not require SRS or psychological evaluation to be made in this regard. In other words, it allows a gender identity claim based on the fundamental right of self-determination of gender. However, this principle of self-determination has been replaced by a principle of societal perception. Societal perception in turn is determined by the sex assigned at birth. 11 Supreme Court and High Court cases have been reported in SCC Online and Manupatra since the NALSA decision. Of these, 4 cases concern persons with intersex conditions who have been mis-classified as transgender[1], 3 deal with gender identity claims of trans-masculine persons (FTM)[2], and 4 deal with gender identity claims of trans-feminine persons (MTF)[3]. These gender identity cases can be divided in two categories: 1. Gender identity claims which are consistent with societal perception (first 4), and 2. Gender identity claims which are inconsistent with societal perception (last 7). The trend that has emerged is that so long as a gender identity claim is consistent with societal perception, courts do not require a SRS or a psychological evaluation to grant the gender claim. However, as soon as the gender claim is inconsistent with such perception, a court requires a SRS certificate and in one case a psychological evaluation before granting the relief.

GENDER IDENTITY CLAIMS CONSISTENT WITH SOCIETAL PERCEPTION

The first kinds of gender identity claims occur in cases in which a person is diagnosed with an intersex condition and labelled as transgender. In all these cases, the person has never identified as transgender and wishes to continue to identify in the gender that they have hitherto occupied. All their documents also point to that gender and they have been brought up as members of that gender. In these cases, the courts grant them the right to continue to identify in their gender. They do not rely on SRS or psychological examination before granting this remedy. The courts’ reasoning is based on the fact that society perceives them to belong to their claimed gender, and all their documents also confirm that fact. Consider this quotation from one such case which is typical of cases which fall in this category:

In all the records in the Schools, College and the University, she [the petitioner] was recorded as a female. She was known and fully recognized by the society as a female. Her gait, get-up, gesture and demeanour were all that of a female. The society did not doubt her sex at all. She actively participated in sports activities for women…irrespective of the opinion of the medical, psychological, genetic and other scientific communities, these medically declared transsexuals are to be treated by the legal community only by the sexual identity given to them by birth and recognized by the society.[Paras 2 and 34 of Nangai].

Note that the reasoning of the court is not based on the self-identity of the claimant but on societal perception. Had the decision been based on self-identity, the court would have noted the gender recorded in all the official documents but found that factor irrelevant in granting the gender claim of the applicant. The gender claim would have been simply been granted on the fact that the claimants considered themselves to belong to a particular gender. The tendency of the courts to maintain status quo in gender claims is confirmed by the fact that in these cases, the courts usually conclude by saying that should the claimant want to identify in another gender, a medical declaration will be needed to that effect. Note the quotation below which is typical of cases in this category.

The petitioner has the liberty to choose a different sexual/gender identity as a third gender in future based on a medical declaration. [Para 41 of Nangai].

Once again, had the gender claim truly been based on self-identity, this concluding statement would not have been made by the court.

GENDER IDENTITY CLAIMS WHICH ARE INCONSISTENT WITH SOCIETAL PERCEPTION

The second kinds of cases concern those persons who want to identify in a gender different from what society perceives them to be. In all but 2[4] of these cases the courts have required proof of SRS certificate and in one instance, a psychological exam. Note the quotation below which is typical of cases in this category.

…when a transgender undergoes a sex reassignment surgery and makes an application for changing of name and sex in the relevant records on the basis of the various documents including documents issued by the medical officer, the educational authorities or the concerned authorities are expected to verify the records and make consequential changes in the concerned records…in light of the above facts, this court is of the opinion that the petitioner should be granted  relief sought for and he is entitled to the name mentioned in the certificates to be changed by mentioning the present name, which is on account of sex reassignment surgery.[Para 3 of K. Gowtham; emphasis mine].

This tendency of the courts is confirmed by Santosh Shivam Dewangan, analysed here, in which the court refused to admit that the prosecutrix who charged the defendant with rape was indeed a woman because her vagina was not fully formed.

…her sex had not changed in tune with gender characteristics from male to female even after SRS surgery…[from the doctor’s report]…patient is a transgender has undergone sex change surgery 3 years back around 2013 at Dr.Kalda Clinic. Second sexual character on developing stage, has not started menses. Axillary hair, vagina is incompletely formed. Further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under S. 375(a) of the Indian Penal Code…this court is of the view that it is a fit case to release the applicant on bail. [Para 13 of Santosh Shivam Dewangan].

In Shivani Bhat and Tessy James, the court did not require SRS but these cases were not concerned with changing gender on official documents. It is unclear what the court would have stated had that been required. Additionally, in Tessy James, analysed here, the court ordered a psychiatric evaluation before allowing the claim of transgender gender identity.

Read in conjunction with this blog and this blog

My thanks to Satya of the Sampoorna Working Group who helped me locate some of the cases concerning trans-masculine persons. The group is a network of Trans* and Intersex Indians Across the Globe. More here: https://sampoornaindiablog.wordpress.com/ 

[1] Nangai (also called the I. Jackuline Mary case), Ganga Kumari, T. Thanusu and G. Nagalaskhmi.

[2] S. Swapna, Prithika Yashini, Santosh Shivam Dewangan and Tessy James.

[3] Shivani Bhat, Chanchal Bhattacharyya and K. Gowtham.

[4] Shivani Bhatand Tessy James.

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TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2018

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The Transgender Persons (Protection of Rights) Bill, 2018 was passed by the Lower House of Parliament (the Lok Sabha) in December, 2018. In this blog, we will look at how the principle of self-determination of gender identity has been reduced to a privilege by the wordings of the Bill.  

The 2018 Bill deals a severe blow to the principle of self determination as enunciated by the Supreme Court. As opposed to the Supreme Court ruling, transgender persons do not have a right to self-identity, but a privilege; if they are able to persuade a District Screening Committee of their gender identity. It is not unusual for a right granting provision to lay out some conditions for accessing the right. However, the conditions must be procedural and not cumbersome so as to transform the character of a right into a privilege. However, this is what the 2018 Bill does.

It provides that persons may obtain a certificate recording their identity as “transgender” by making an application to the District Screening Committee. The list of these documents is not provided in the Bill. They will be set by Rules following the Bill, should the Bill become an Act. It is usually the prerogative of the executive, i.e. the government of the day to formulate these Rules. The application shall be screened by the District Screening Committee which shall comprise 1. A medical officer; 2. Social welfare officer; 3. a psychologist or psychiatrist; 4. A representative of the transgender community; 5. A government nominated officer. The Bill does not state on what grounds the application will be assessed and what the process will be for making a decision. In other words, will it be a majority decision? How much importance will be given to the opinion of the sole transgender person on the panel? Such things will be clarified by the Rules. However, the power division on the screening committee seems quite asymmetrical at the outset. Medical and mental health officers are not required on such a panel expect to make a determination of the sound medical condition of the application claiming a different gender identity. Based on the “recommendations” of the committee, the applicant will receive a certificate which will record their gender identity as “transgender.”  As per the Supreme Court, the self-identity principle of gender meant that a person should be able to identify in their true gender without being assessed by a committee. At best, the committee can be a formal requirement. If the committee starts to make substantive assessment on whether a person actually belongs to their true gender then the directions of the Supreme Court are being turned on their head. The right of self identity will be transformed into a privilege and will be only available to those who can persuade the District Committee.

This is a crucial part of the Bill to correct because many derivative rights are associated with the certificate. The Bill itself mentions that it is the certificate that entitles the transgender persons to various rights associated with the Bill.[1] As per the Bill, only those who have obtained the certificate can change their name and gender in their birth certificate and other official documents. As of now, advocates are still able to sometimes argue that their clients are eligible for change of name and gender on the basis of a self-attested affidavit but this will change once the certificate comes into effect. Apart from wrestling the power of self-determination from transgender persons and vesting it in the hands of a screening committee, the Bill also narrows the scope of self-identity in other important ways. Let us look at them below.

First of all, a transgender person can only identify as either 1. Transgender; 2. Male; or 3. Female.[2] This means an automatic reduction in scope of the Supreme Court decision. The Supreme Court had ordered that a transgender person can identity either as 1. Male; 2. Female; or 3. Third gender.[3] The category of “third gender” included, as per the court, Hijras and eunuchs. Although as per the 2018 Bill, Hijras and eunuchs are included in the definition of transgender, this still results in a loss of identity because these two classes of people cannot identify as third gender. This becomes especially important for the Hijra community because members of this community may not identity either as male or female or transgender. We will not go into the implications of for eunuchs because that itself is a derogatory term and misplaced in the whole transgender debate. Eunuchs are castrated males. It is unclear how they fit into the definition of transgender. One possibility is that the Supreme Court included this group of people into this debate to refer to those intersex children who are born with ambiguous genitalia and are given over to the Hijra community. In popular imagination these persons are classed as eunuchs, and it is possible that the Supreme Court order was meant to provide an option to such persons. However, this can be easily rectified through drafting if the Bill is amended to provide that transgender persons can identity either as male, female or third gender. Such a drafting correction will be in compliance with directions 1 and 2 of the Supreme Court. Secondly, the 2018 Bill overlooks the many categories of persons who do not identity either as transgender, or as male or female. This is an issue where the Supreme Court decision itself is in default. Although the Supreme Court was right to understand that transgender includes the vast gamut of people who do not identify in the gender that they were assigned at birth[4], its directions were narrower than this pronouncement. In its final directions, it allowed transgender persons to identity only as 1. Male; 2. Female or; 3. Third gender. These directions did not allow among others, gender queer persons, or gender fluid persons, for example, to identify as gender queer or gender fluid, respectively. While it is understandable that the Bill may require persons to have one identifying category (transgender, for example) to identify the class for whom its various provisions are triggered, it is possible for it to provide for people to identify outside of the categories of male, female or third gender. This can be accomplished by providing a space for people to record their true identity alongside that of “transgender” in the transgender certificate. 

[1] 7(3).

[2] S. 8.

[3] Direction 2, NALSA.

[4] Para 11.

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Sreeja S. v. The Commissioner of Police, Thiruvananthapuram and Ors. W.P. (Crl). No. 372/2018

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On the 24th of September, 2018, a division bench of the Kerala High Court ruled that a same sex couple had a right to live in a live-in relationship. However, this question arose only co-incidentally in a case which was primarily about illegal confinement. This is the first documented case, as per available court records, in which the romantic relationship between the two women in question is openly acknowledged. It also has the distinction of being the first to apply the Navtej judgment which, pertinently, found that consensual same-sex sex was no longer criminal between adults. This blog post will first summarize the case and then focus on why the open acknowledgement of the relationship between these women is a significant moment in legal history.

Facts of the Case

Sreeja and Aruna were two women in a romantic relationship. Both were majors i.e. above the age of 18. Aruna had left her parental home to live with Sreeja. Aruna’s parents filed a missing person complaint with the police, which resulted in the police taking Aruna into custody and producing her before a judicial magistrate. The custody was illegally in this case, she should have been asked to present herself before a magistrate for the recording of her statement. In those proceedings, Aruna clarified that she was living with Sreeja of her own volition and thus secured her liberty. However, Aruna’s parents forcibly took her with them after the hearings and admitted her to a mental hospital. The hospital was not ready to release her without a court order. Thus, the present proceeding.

Decision and Reasons of the Court

The court found that Aruna was under confinement in her parental home against her will. The court reasoned that regardless of the relationship between the women, Aruna was an adult, and therefore, at liberty to make a choice about where and with whom she wanted to live. The court could have stopped at this point but it took the opportunity to reiterate, citing the Navtej case, that sexual orientation is a natural variation of human sexuality and because 377 no longer criminalizes same sex sexual relationships, Sreeja and Aruna’s sexual relationship, lived through in the form of a live-in relationship will not, “offend any provisions of the law or become a crime in any manner.” Further, the court went on to say that, “on the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.” This statement arguably signals to the fact that the legality of live-in relationships of persons in different sex sexual relationships is well established in Indian legal jurisprudence, and if the court does not find that same sex sexual relationship are eligible for the same entitlement, an Article 14 (equality) violation would occur.

The Romantic Relationship Between the Women

The most significant aspect of this case is the fact that it was openly mentioned in the judgment, and therefore, one assumes, was argued in the court, that, the women in question were involved in a romantic relationship. What had hitherto been happening in similar cases was that when 2 women would decide to live together in a romantic relationship, the parents of one of them would accuse the other of kidnapping/kidnapping with the intention of compelling marriage/abduction/illegal confinement. The legal battle, would then involve proving that the woman in question, esp. the one’s whose parents have alleged the above-mentioned crimes, is an adult, and capable of making decisions about her living situation. The romantic relationship between the 2 women would never be brought out before the court by the lawyers of the women. Partly, it was due to the uncertainty over whether 377 criminalized lesbian sex, and partly the romantic relationship was silenced because of the negativity and illegitimacy surrounding such relationships.

Ponni Arasu and Priya Thangarajah[1] have shown these very same findings in their 2009 paper. They performed a case search from 1940s-2007 of all habeas corpus matters with ‘lesbian undertones’ and found that only 2 High Court cases appeared which involved what could arguably be, women in sexual relationships. In both of these cases, the romantic nature of their relationship was not brought before the judge though the lawyers involved knew about it. What was argued was that the women were adults and therefore entitled to decide their living arrangements. I performed a case law search on Manupatra, a standard Indian legal database, with the keyword “lesbian.” This search looked for results from all Indian High Courts,  Tribunals, and the Supreme Court. Since Manupatra has case law from the pre-independence era as well, the search covered a period before 1947 and up till 2018. I found no results at all pertaining to the lesbian relationships in such legal battles i.e. to say that in court records, the word “lesbian” has never been used in a matter pertaining to live-in relationships before.

Therefore, I conclude that either: 1. Similar cases have been occurring in court but the romantic aspect has been kept under wraps for the reasons mentioned above; or 2. Cases in which the romantic aspect has been clearly mentioned are not reported cases. The third possibility that such cases have not occurred before is negatived by the fact that: 1. 2 cases have been found by Arasu and Thangarajah, and; 2. anecdotally, I have been made aware that such cases do occur and lawyers still use the strategy of classifying the women involved as adults and ‘good friends’ and as such entitled to decide with whom they wanted to live.

This means that cases which may have involved the same questions of law were being handled without acknowledging that the women are in a romantic relationship (until 2018). Therefore, I argue, that though the results of the case are not new, the manner in which they are achieved i.e. by putting in public records of the court that the women are in a same sex relationship and as such are entitled to live-in, is a significant moment in legal history, attributable to, both: 1. The growing sense of the right to legal entitlements of the LGBT community; but also, very importantly, to, 2. The reading down of S.377.

 

[1] Ponni Arasu and Priya Thangarajah, “Queer Woman and the Law: The Love that Blinds the Court” (Presented at the 2009 LASSNET Conference).

I would like to thank Dr. L. Ramakrishnan (Ramki) for pointing me to the Arasu and Thangarajah paper. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

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

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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.

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

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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.
  2. 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.