Print edition : May 16, 2014

April 15: Laxmi Narayan Tripathy, Asia Pacific Trnasgender Network founding member, with activists Ernesh Naronha and Rudrani after the Supreme Court verdict. Photo: Rajeev Bhatt

The Supreme Court judgment recognising the third gender, while restricting itself to the concerns of transgender persons, links development with human dignity.

AS an ebullient Laxmi Narayan Tripathy emerged out of the packed courtroom on April 17, she could not hold back her tears. While waving a victory sign to a team of reporters waiting outside, she said: “This is the real moment of independence for transgender persons across the country. It will end years of humiliation and oppression by an unsympathetic society.” Laxmi, one of the interveners in the National Legal Services Authority (NALSA) case, was referring to the Supreme Court judgment delivered by Justices K.S. Radhakrishnan and A.K. Sikri recognising a third gender and upholding the fundamental right of a person to identify with a gender that does not correspond to the sex assigned at birth.

This landmark judgment, while restricting itself to the concerns of transgender persons, makes important comments and observations on development itself by drawing links between development and human dignity. Against the backdrop of a countrywide “wave” in favour of corporate-led majoritarian development, the judgment articulates the constitutional obligations of the state to provide welfare measures for sexual minorities. It also comes close on the heels of a hearing of a curative petition in the Supreme Court challenging the Suresh Koushal verdict. The Suresh Koushal verdict, delivered on December 11 by Justices G.S. Singhvi and S.J. Mukhopadhyay, upheld the constitutionality of the draconian Section 377 which penalises certain sexual acts “against the order of nature” between consenting adults. The curative petition challenging this judgment is listed for hearing on April 22.

The judgment comes in response to a writ petition filed by NALSA in September 2012 seeking equal rights and protection for transgender persons, including legal recognition as a third gender in voter ID cards, passports, driving licences and ration cards and for admission in educational institutions and hospitals. An intervention application was filed in the case by the Lawyers Collective on behalf of Laxmi Narayan Tripathy, a transgender activist, seeking recognition of the self-identified gender of persons either as male or female or the third gender on the basis of choice. Senior advocate Anand Grover, appearing on behalf of Laxmi, argued that the state had a constitutional obligation to recognise the self-identified gender of all persons and should take necessary legal and administrative steps to accord such recognition in all identity documents, whether issued by the state or private entities, which indicate a person’s gender. Interestingly, in contrast to the Naz Foundation case for declaring Section 377 of the Indian Penal Code (IPC) as unconstitutional, the NALSA case has been away from the media glare until recently. In its Cover Story in the edition dated January 10, Frontline highlighted this case as part of the larger struggle of transgender persons for legal recognition and access to state benefits.

The judgment emphasises the notions of social justice and equality by linking gender identity to the larger public good. It recognises hijras and eunuchs as the “third” gender for the purpose of safeguarding their rights under Part III of the Constitution and the laws made by Parliament and the State legislatures. Transgender persons are also given the right to decide their self-identified gender.

The larger emphasis on social justice is also evident. The judgment notes, “In fact, the recognition that every individual has fundamental right to achieve the fullest potential is founded on the principle that all-round growth of an individual leads to common public good. After all, human beings are also valuable asset of any country who contribute to the growth and welfare of their nation and the society.” It states that the recognition of the third gender is based on the right to equality under Article 14 and the right to life under Article 21 of the Constitution.

Speaking to Frontline, Tripti Tandon of the Lawyers Collective explained, “Though the judgment restricts itself to transgender persons, there is a larger emphasis against discrimination on the basis of sexual orientation. It recognises the right of persons outside of the universe of binary genders to develop their personality.”

The larger emphasis of the judgment on social justice is evident in its recognition of how society treats sexual minorities. It says, “There appears to be limited public knowledge and understanding of same-sex sexual orientation and people whose gender identity and expression are incongruent with their biological sex. As a result of this approach, such persons are socially excluded from the mainstream of the society and they are denied equal access to those fundamental rights and freedoms that the other people enjoy freely.”

Larger implications

The judgment mandates a set of responsibilities for the Centre and the State governments as welfare measures to be adopted for transgender persons. It directs the Centre and the State governments to take steps to treat them as a socially and educationally backward class of citizens and extend to them reservation in educational institutions and public appointments. It also instructs the governments to provide access to health care and social welfare schemes.

This judgment is expected to have far-reaching implications. The recognition of the constitutional obligations of the state towards minorities comes against the backdrop of the constant clamour for economic growth as the sole indicator of the success of the nation. The judgment states, “In fact, there is a growing recognition that the true measure of development of a nation is not economic growth, it is human dignity.”

With the notable exception of the southern States of Tamil Nadu and Karnataka, most State governments have failed to enact any social welfare measures for the betterment of the lot of transgender persons. In a detailed article in its July 12, 2013, issue, Frontline noted the inadequacy of pension schemes designed for transgender persons.

Rudrani, a transgender activist, felt that this decision would pave the way for equality of opportunities. “It is inhuman to deny a person basic rights to education, employment and health on the basis of their gender identity. This judgment will also be a big step towards removing transphobia in several sections of society.”

Though the judgment steers clear of directly engaging with the constitutionality of Section 377, the broad thrust of the judgment goes against the grain of the Suresh Koushal judgment. Speaking to Frontline, a senior advocate, who did not wish to be named, highlighted the links between the two judgments: “The NALSA judgment emphasises the right to equality and also repudiates any discrimination on the basis of sexual orientation. The criminalisation of certain intimate sexual acts between consenting adults, as is envisaged by Section 377, is clearly discrimination on the basis of gender. The broad thrust of the NALSA judgment can be used to prove the unconstitutionality of 377.” The NALSA judgment, therefore, is expected to strengthen the larger struggles of the LGBT community towards a life of dignity, respect and equal rights. It remains to be seen whether the apex court rethinks its approach towards 377 and hence the struggle for Lesbian, Gay, Bisexual and Transgender (LGBT) rights following this landmark judgment.