The Supreme Court of India passed a landmark judgment relating to the Transgender Community yesterday. It is a 130 pages long judgment. The Supreme Court discussed the historical background, mythological background and psychological background of the Transgender community. You can read more about it here
http://www.desikanoon.co.in/2014/04/supreme-court-on-transgender-community.htmlThis case is about the grievances of the members of Transgender Community (for short ‘TG community’) who sought a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth. They prayed that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claimed legal status as a third gender with all legal and constitutional protection.
The petitioners pleaded that TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licenses etc. and, in effect, treated as an outcast and untouchable.
Also, under the aegis of the Ministry of Social Justice and Empowerment, a Committee, called “
Expert Committee on Issues relating to Transgender”, has been constituted to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to the Ministry.
I will divide the analysis of this into 3-4 articles. This article is divided into following parts
1. Who is a Transgender?
2. History of laws during the British Raj
3. Gender Identity and Sexual Orientation
4. Conventions, Committees, Principles and Reports I am not able to paste the full article here (It says that the article is too long) Please visit
http://www.desikanoon.co.in/2014/04/supreme-court-on-transgender-community.html
Comments
In the previous posts, I discussed my opinion about the fundamental rights of the transgenders. We know that the court passed many directions and observations in the case of National Legal Services Authority v. Union of India and others. Many critics of this verdict say that this judgment suffers from the vice of excessive Judicial Adventurism and by extending reservation to the transgenders, the court clearly overstepped into the domain of the executive. And by creating a ‘Third Gender’, the court clearly indulged into Judicial Legislation.
Before going further, I would like clarify what I mean by Judicial Activism. Judicial Activism has been used in both, pejorative and positive sense by the jurists. Here, I am referring to ‘Judicial Activism’ as Judiciary engaging in Rule-Making, filling the lacunas in law and making law. I agree that of late, Judicial Activism by the Supreme Court has clearly increased. Our Constitutional Scheme is such that it gives ample powers to the Supreme Court and except self-restraint, there is nothing stopping the Supreme Court to engage into Judicial Activism. I also agree that Judicial Activism should be exercised with great care and caution. It is a tool to be used sparingly and in the rarest of the rarest circumstances. Its exercise should be such that the court must be left with no other option than to resort to Judicial Activism.
There is no denying the fact that the present case is clearly one of Judicial Activism by the Supreme Court. But, I feel that this is one of those cases that should not be treated at par with other cases of Judicial Activism. The gap in the law existed for decades. Subsequent government came and went away. No one did nothing for the transgenders. No one even cared to recognize them. They were treated as illegitimate. Governments remained aloof and oblivious to their existence. It is not as if governments were not petitioned by the organizations representing the transgenders. Letters were written, dharnas were done from time to time. But, the government chose to remain a mute spectator. It is in this light that we must see the action taken by the Supreme Court.
The matter would have again gone into a Cold Baggage had the court not declared that let there be a ‘third gender’ and since transgenders are economically and educationally extremely backward, let them avail the benefit of reservation. The apathy of subsequent governments led to this action of the Court. If the governments were vigil enough, they would heard the plight of the transgenders and requisite action in this regard would have been initiated.
As I said, I completely endorse this verdict. But, let us not expect from the Supreme Court to cross all lines of separation of power and engage into Judicial Legislation for other matters that are of substantial importance. I feel the cause involved in this case was exceptional and hence, exceptional steps were taken by the Supreme Court. With this, my analysis of National Legal Services Authority v. Union of India and others is officially over.
History of transgenders
Implications of this judgement
:-)
However, I do not think evading Section 377 could be said to be a problem in this case. If one reads the judgment, the judges clearly said that
"Naz Foundation's Case has already spoken on the constitutionality of Section 377 IPC and, hence, we express no opinion on it since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation."
The Naz Foundation judgment was also a two judges bench judgment and this was also a two judges bench judgment. So, the bench in the Transgender Judgment could not have overruled the Naz Foundation Judgment. Only a larger bench could have overruled the judgment.
Also, a Curative Petition with respect to the Naz Foundation judgment is pending in the Supreme Court. In light of all these facts, I do not think evading Section 377 was a problem with this judgment.