Tag Archives: NALSA

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XXX and Ors v The Health Secretary and Ors WP (C) No 19610 of 2022 (Kerala High Court)

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Reading Time: 4 minutes

I. Can Two Wrongs Make a Right?

Can the parents of an intersex child allow doctors to perform a genital reconstruction surgery on the child when the child has not consented and the gender orientation of the child is unknown? The Kerala High Court decided this question on the 7th of August 2023. The court answered this question in the negative, making this case arguably the first in the country to squarely consider this as a distinct legal issue. As the case for intersex rights awaits further filings and pleadings in the Supreme Court, this case along with a handful of other judicial interventions from the Madras and the Delhi High Court help consolidate the legal bases for a fuller future for intersex people in the country.

II. Facts of the Case

This case concerned a 7-year-old who was born with ambiguous genitalia whose parents wanted a genital reconstruction surgery performed on them. They wanted to raise the child as a girl in accordance with the chromosomal report which matched a normative female type. The child had been diagnosed with Congenital Adrenal Hyperplasia and the doctors had recommended a surgery. The parents were willing to give their permission for the same, but doctors refused to perform it without a court order. Thus, they approached the high court.

The parents’ case was built on claiming to know the best interest of the child. They argued that as parents they were best suited to decide the future of the child and delaying the decision would only cause hardship to the family. They also noted that the child had started to note the distinctive features and they feared potential social ostracization and trauma to the minor.

The Kerala Government opposed this claim by saying that they would prefer to put the case before a multidisciplinary committee and act according to their directions.  

III. The Intersex Condition

Intersexuality is a biological condition and not a gender identity matter. An intersex person is one whose chromosomal make-up is different from the normative female (XX) and normative male (XY), or whose internal or external genitalia has features not typically associated with males or females. When a child is born with an intersex condition, especially one that is externally visible, like in the present case, the medical regime takes over and the doctors and parents often get reconstruction surgery performed on their child to align their sexual organs to the normative standards of one sex. These interventions are based on the idea that intersex conditions are not normal and need to be fixed. These sex normalising surgeries do not require the consent of the child. Indeed, in many cases, the child is too young to consent because the surgeries occur very early in their lives. There is a severe deficit of evidence on the therapeutic benefits of non-consensual intervention.[1] In fact, there is great risk of harm, medical and psychological and continuing from such non-consensual surgeries. [2]

However, there is no law in India regulating these surgeries. A pending public interest litigation asks the Supreme Court to pass directions on the matter but the last time it was listed was the 8th of April 2024. In 2019, following the Arunkumar case, the Tamil Nadu government passed an order banning reconstruction surgeries on intersex children except in life-threatening situations. The determination of the threat to life was to be made by a multi-specialist committee consisting of a paediatrician, an endocrinologist, a social worker/psychologist/intersex activist, and a government bureaucrat. The Arunkumar case did not deal with intersex rights per se, but one of the parties had an intersex condition, which prompted the Madras High Court to make an observation about reconstruction surgeries on children. Similarly, the Delhi High Court has also ordered the Delhi government to issue a similar ban and constitute a specialist committee to decide life-threatening cases.[3]

Therefore, a haphazard legal scheme prevails on intersex surgeries in the country. In this environment, this is the first case to consider the matter on its own terms—can the parents of an intersex child consent to such surgeries without their consent?

IV. Two Wrongs Can Make a Right

The court in this case noted that normally it would allow parents to take decisions on behalf of their children. However, a legal reason prevented it from doing so. This reason is based on a mistake in the law which was later codified, but is the one that saved the day. Two wrongs can make a right. In 2014, the Indian Supreme Court while deciding whether transgender people were entitled to fundamental rights, defined a transgender person to include intersex persons. While in essence this is an erroneous definition, it was potentially because in India, it is not uncommon to think that a transgender person means a person with ambiguous genitalia. Parents sometimes give away or abandon their intersex children because of stigma and they are given to the transgender community. An intersex person, like anyone else, may or may not be transgender. However, this definition was then codified in law when the Transgender Persons (Protection of Rights) Act, 2019 was passed. A transgender person was defined to include an intersex person as per S2(k) of the Act. The Act also imposed penalties on anyone harming, injuring, or endangering the life of a transgender person—aka an intersex person. Therefore, the court’s hands were tied, and it could not grant permission to the parents. Ironically, these mistakes in law made the court acknowledge what intersex activists have been saying for long—it is the right of an intersex person to choose their gender. The judgment also recognised such surgeries cause harm to the child and that there is a growing global recognition of the same.

Ultimately, the Kerala High Court directed the State government to form a committee of experts consisting of doctors and psychiatrists which will decide on a case-to-case basis whether a child needs a surgery if there is a threat to life. Regrettably, intersex representation is not required on the committee. The government was also directed to pass an order banning such surgeries on the lines of the Tamil Nadu order. No such order seems to have been passed just yet.

[1] See for example, this article cited by the court: James Garland and Santa Slokenberga, ‘Protecting the Rights of Children with Intersex Conditions from Non-consensual Gender Conforming Medical Interventions’ 27 (3) Medical Law Review 2019 (482).

[2] Fae Garland, Kay Lalor, and Mitchell Travis, ‘Intersex Activism, Medical Power/Knowledge and Scalar Limitations of the United Nations’ 22(3) Human Rights Law Review 2022 (1).

[3] Srishti Madurai Educational Research Foundation v Govt of NCT Delhi W.P.(C) 8967/2021 (Delhi High Court).

Sometimes, but only sometimes, two wrongs can make a right. Based on an erroneous definition of transgender in a prior case, which was then codified, the Kerala High Court has found that intersex children cannot be subjected to surgeries based on parental consent alone. lawandsexuality.com

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— Surabhi Shukla (@surabhishukla.bsky.social) December 14, 2024 at 2:44 PM
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The Role of International Law in Major LGBT Decisions in India

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Reading Time: 3 minutesThis 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.

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Shivam Santosh Dewangan v. State of Chhattisgarh 2016 CriLJ2819

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Reading Time: 7 minutesOn the 27th of April, 2016, a single judge bench of the Chhattisgarh High Court granted bail pending trial in a rape case. The prosecutrix, a transgender woman who had undergone sex re-assignment surgery (“SRS”) commenced a sexual relationship with the accused upon a promise to marry. When that promise was broken, she lodged an FIR alleging rape, among other things. This case concerned the bail application of the accused who had been imprisoned following the FIR.  Sexual relationships based on (later) broken promises to marry may qualify as rape but this blog is not an opinion on that issue. Neither is it an opinion on bail proceedings. Instead in this blog, I focus on two of the reasons for the grant of bail: 1. The court’s incorrect finding that the prosecutrix was not a woman only because all her female sex organs had not fully formed post SRS; and 2. The court’s incorrect implication that the prosecutrix could not be raped only because her vagina was not fully developed. I argue that these findings are incorrect in law and end up excluding certain legal subjects from the protection of rape law.

REASONS FOR GRANTING BAIL

Before expanding on the reasons for bail, we recall that rape, as per the Indian Penal Code, 1860 (“IPC”), is a crime that can be committed only against a woman. The judge granted bail for the following reasons: 1. She was not entirely a woman i.e. “…her sex ha[d] not changed in tune with gender characteristics from male to female even after SRS surgery.”[1] 2. According to her medical report, her vagina was not completely formed and her secondary sexual characteristics were still developing; 3. There was a year long delay in filing the FIR 4. No semen was found on her clothes; 5. No custodial interrogation of the accused was required; and 6. The prosecutrix was a 23 old adult. I will deal in depth with reason 1 and 2 and make some general observations about reasons 3-6 in respect of bail proceedings. Bail proceedings are not a determination of the merits of the case i.e. whether the accused is guilty or not. Generally, in non-bailable offences like rape, the accused cannot demand bail as a matter of right.[2] Moreover, in cases such as rape, if there is an appearance of guilt, bail shall be denied. Therefore, it is common, to my understanding, for courts to consider the kinds of evidence it did to arrive at the bail decision.[3] This is despite the fact that some of the evidence they examine may be thrown out as inadmissible at the trial stage, or the conclusions drawn from them may be legally incorrect as I will demonstrate below.[4] However, in this blog, I am not focussing on the merits or demerits of such kinds of bail proceedings.2.

COURT’S INCORRECT CONCLUSION THAT THE PROSECUTRIX WAS NOT A WOMAN (REASON 1)

The question in the case was one concerning rape—primarily, whether sexual intercourse on a promise to marry is rape, if the promise is later broken. The short legal answer to that question is yes, it may be rape.[5] Now, though he had been chargesheet-ed on a rape complaint (S.375, IPC), the accused argued that the prosecutrix was not a woman because her sexual characteristics had not developed. Accordingly, he could not have raped her. Examine this report from the medical officer in which he found that the vagina and the secondary sexual characteristics of the prosecutrix had not fully developed:

“Examine [sic] patient is a transgender [sic] 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. No sign of injury seen over the anal region or vaginal area. 2 slides prepared from the anal region area. From the above clinical finding about sexual intercourse cannot be told.” [para 7]

The prosecutrix had undergone SRS in 2013. The Supreme Court in 2014 had declared that all transgender persons had a fundamental right to their self identified gender and any insistence on SRS is both illegal and immoral (Directions 2 and 5). Therefore, a transgender person can self indentify as either a man, a woman or third gender (Direction 2). If SRS was not required then there was no reason to medically examine the prosecutrix as to her sex characteristics. Her self-determination as a woman should have been sufficient to place her in the category of “woman” for the purpose of the allegation of rape. Some transgender persons undergo the SRS and some do not. However, that is not a legal requirement to be recognized as either a transgender or a woman as per the NALSA judgment. Instead, this court erroneously relied on the exposition of J. Sikri in NALSA on the experience of SRS. In para 103 of NALSA, J. Sikri explained that SRS is not an overnight process. By this the judge only sought to explain the steps involved in a SRS operation—from the decision, to the hormone therapy and the psychiatric evaluation and then the operation. He did not wish to point out that even after the SRS, the sexual features do not develop overnight, and even if he did, the directions abovementioned given by the full court render inquiry into the state of sex characteristics irrelevant. Therefore, the court’s conclusion that the prosecutrix was not a woman is incorrect in law.

STATE OF DEVELOPMENT OF SEX ORGANS AND IMPLICATIONS OF SUCH INQUIRY: CREATION OF LEGAL SUBJECTS WHO CANNOT BE RAPED (REASON 2)

Reason 2 for the grant of bail stated that the vagina of the prosecutrix was not fully formed, implying that she could not be raped. The court stated: “…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 Section 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 12]. 375(a) of the IPC states that, “a man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person…”

First, rape under 375(a) can be committed by insertion of penis into places other than the vagina as well: the mouth, the anus, the urethra. There was no reason therefore, for the court’s exclusive focus on vaginal penetration under the 375(a) charge. To be sure, the court did observe that there were no signs of anal injury.  Not only is this still an incomplete coverage of 375(a), lack of injury is not determinative of innocence in rape cases—especially ones of this sort. Irrespective, it was not lack of anal injury but absence of a fully developed vagina that featured in the list of reasons provided by the court for granting bail.

Second, 375(a) penalizes non consensual penetration into the vagina, and not non-consensual penetration into a medically correct vagina. Inquiry into the medical correctness and dimensions of the vagina not only misses the point of rape law which punishes “Offences Affecting the Human Body” [Chapter under which Rape Provisions are housed], such inquiries end up creating legal subjects who “cannot” be raped: post- SRS transgender women with incompletely formed vaginas, intersex women with ambiguous genatalia and biological women whose vaginas don’t fit the medical category, for example. For this prosecutrix such a determination has created this quandary: though the court is treating her as a woman because she has undergone the SRS, and the court refers to the prosecutrix with a feminine pronoun, it is implying that the prosecutrix cannot be raped because she does not have a fully formed vagina. At the same time, her SRS operation has taken her out of the category of a man and therefore S. 377, IPC is not attracted. Therefore, she may have been raped but accused, if found guilty, will neither be punished for rape (376, IPC) nor under 377, IPC. Finally, if courts are going to require a medically correct vagina standard to grant relief in rape cases, how will law address rape cases of transgender women who do not undergo SRS? One immediate answer is that such cases may be handled under 377 but this solution leaves the transgender woman divided against herself, a woman for all purposes, but a man for the purposes of rape law. Lawyers, judges, legislators and others in the business of law need to know more about how transgender persons understand their body before they can formulate satisfactory solutions for their criminal law needs.

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[1] Para 12.

[2] See Section 437 of the Code of Criminal Procedure, 1973: When Bail May be Taken in Case of Non-Bailable Offence.

[3] For a general understanding on the jurisprudence behind bail see K.N. Chandrashekharan Pillai, “Bail” in R.V. Kelkar’s Criminal Procedure (Eastern Book Company, 2014) 289-344.

[4] For a contrasting viewpoint, see Abhinav Sekhri, “Reversing the Presumption of Innocence- Part III” http://theproofofguilt.blogspot.co.uk/2015/05/reversing-presumption-of-innocence-part_9.html

[5] The key question to be answered in this situation is whether the prosecutrix consented to the sexual intercourse only because she believed the accused’s promise to marry to be true? Without expressing an opinion on whether this is a good test, I present some preliminary observations on how the Indian courts apply this test. The court applies the test in this fashion: 1. If there are other reasons which could have influenced her decision, the courts have not found sex based on broken promises to marry as rape. Other reasons include love between the parties, absence of evidence that the accused never intended to keep his promise to marry when he made it, prosecutrix’s consent despite knowledge of insurmountable caste differences etc. 2. There is no hierarchy of reasons– the prosecutrix may have loved the accused but consented to a sexual relationship only because he promised to marry her; the court does not go into this inquiry. 3. The court’s real test appears to be a search for a dispassionate (pun intended) yes in promise to marry cases which connects with how female sexuality is construed. The woman is construed as a passive recipient of sex and therefore any desire on her part to have sex which pre-dates the promise counts against her rape charge. Key cases on this point are: Uday v. State of Karnataka AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar AIR 2005 SC 203; Jayanti Rani Panda v. State of West Bengal and Anr. 1984 CriLJ 535.

Curiously, presence of factors other than the promise to marry lead the court to conclude that the prosecutrix could not have really relied on the promise to marry before having sex; love, caste differences etc. weaken the authenticity of the promise. There is of course another way to read these factors which is this: could not the love, the desire to united over caste differences lead the prosecutrix to believe even more in the promise to marry? Not only does the court promote a cynical view of love and sex, it places the burden of this cynicism on the prosecutrix: the prosecutrix should have been aware that the promise to marry could not have been real owing to caste differences; the court doesn’t conclude or raise a presumption that the accused never intended to marry, owing to insurmountable caste differences, when he promised to marry [see this claim esp. in light of how S.114A of the Indian Evidence Act, 1872 shifts the burden of proof on the accused and presumes lack of consent when the prosecutrix in a rape trial alleges lack of consent.]

My thanks to Arushi Garg for pointing me in the direction of the key cases on this topic, and also for the enlightening discussion on the theory and practice of cases concerning sex on a promise to marry. Arushi is a doctoral student in the law department at the University of Oxford. Her research focuses on conviction rates in rape cases in Delhi.