“Justice is the end of Government. It is the end of Government. It is the end of the civil society. It ever has been & ever will be pursued, until it be obtained or until liberty be lost in the pursuit.”
(Federalist No. 51) James Madison
In a landmark judgment in Shivani Bhat v State of NCT of Delhi [W.P Crl 2133/15] a single judge bench of Delhi High Court disposed off a petition preferred by a transgender observing that she must not be subjected to any harassment by state and be allowed to visit US for pursuing her course in neurobiology. Diametrically opposite to this, recently, in a less debated order, on September 18, 2015 the Supreme Court, while granting leave, in State of Gujarat v Kirankumar Devnani observed homosexuality to be akin to “social evils”. The state appeal was related to the claim of tax exemption under the notification by Gujarat government granting 100% exemption from entertainment tax to all Gujarati colour films produced after April 1, 1997 except for films depicting evil customs, blind faith, sati, dowry, “social evils” and those against national unity. The impugned Gujarati film (Meghdhanyshya — The colour of life) depicting the sufferings of a homosexual prince is based on the true story of the “gay” prince of Rajpipla - Manvendra Singh Gohil, and stands cleared by the Censor Board. The Apex Court refused to grant any relief to the director of the movie & once again declined to give due consideration to rights of sexual minorities and that being born as Lesbian, Gay, Bisexual or Transgender (LGBT) is not a ‘social evil’.
Section 377 of the Indian Penal Code criminalises ‘carnal intercourse against the order of nature’. On December 12, 2013 Supreme Court speaking through Singhvi J in Suresh Kumar Kaushal v Naz Foundation (Kaushal) had upheld its constitutional validity. The review petition against this was summarily dismissed by Dattu J. On April 3, 2014, a curative petition was agreed to be heard in an open court when a battery of lawyers urged and moved the court to do so, a bench though, still awaits constitution.
On April 15, 2014 in National Legal Services Authority(NALSA) v Union of India, the Supreme Court had delivered a landmark judgment recognizing transgenders as a third gender. It was held that the word ‘person’ used in Article 14 of the Constitution is not restricted only to a male or a female and also includes transgenders. It clarified that Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds including the ground of ‘sex’. It also laid down that Article 19(1) (a) includes one’s right to expression of his self-identified gender and that recognition of one’s gender identity lies at the heart of the fundamental right to dignity as under Article 21. Pertinently, it was recorded that Sec. 377 has been used as an “instrument of harassment and physical abuse against Hijras and transgender persons”. After this judgment, Centre sent out notices to the States to implement a five step agenda and distribution of funds accordingly. In April, 2015, the Rajya Sabha passed a private member’s Rights of Transgender Persons Bill, 2014 which is yet to be debated in the Lok Sabha.
While Kaushal dealt with a challenge to constitutional validity of the provision in so far relating to penalising sexual acts in private between consenting adults, NALSA answers two key questions i.e. firstly, recognition of a third gender category to facilitate legal rights and secondly, right of self identification of one’s gender. Kaushal relies upon the undeclared principle of promotion of majoritarian sexual interest as a legitimate state interest, NALSA on the other hand recognizes and records the historical role, British advent in the country and its subsequent interest in statutory books against minoritarian sexual interest. However, NALSA is restricted in a wider sense only to transgenders. ‘Homosexuals’ as a separate class was not in question before the bench.
I had earlier argued that NALSA will however affect the Curative in Kaushal. In a constitutional quagmire of presumption of validity of statute book provisions vis a vis our constitution being a living and evolving document, the debate surrounds itself to approval of private consensual activities of sexual/non sexual nature by sexual minorities. It is not arcane knowledge that historically transgenders and other sexual minorities have been subjected to discrimination and victimization based on biological differences. Potential flashpoints of biological polarization & scientific advancements make it abundantly clear that selective genders are natural and biological in nature and being born as a LGBT can neither be considered a disease or a crime. It is a democratic misfortune that even after accepting independence for over 65 years, minorities of the land are suffering from state sponsored atrocities. They already have had enough suffocating experiences of oppression by the un-independent state. Framing our constitution must work as an instrument of change for depressed classes (SC/ST/OBC) and oppressed classes (sexual minorities). A web of delicate & urgent judicial intervention must be supplanted by the Apex Court to affirm constitutional expectation of equality before law and equal protection of laws.
An anonymous poet said –
“The law locks up both men and women
Who steals the goose from off the common,
But lets the greater felon loose
Who steals the common from the goose”
We have just enough reasons to make us hate, but not enough ones to make us love one another. The openness and awareness about having LGBTs in society and not looking them down must reach epidemic proportions. What better way can be apart from the Apex Court lifting the veil and granting rightful civil liberties to them. Let us hope wisdom prevails!
Namit Saxena is a lawyer and can be reached at email@example.com.