The Supreme Court Tuesday ruled transgenders would from now on be treated as a third gender, which is neither male nor female. The court regretted the absence of law to protect transgenders’ rights and consequential psychological and physical damage to the over two-million-strong transgender community.
But instead of sending the issue to Parliament for legislating, the court took it upon itself to accord them the rights under the positive mandates of the Constitution. It noted the Constitution promised array of rights and beneficial measures to everyone under its ambit of Fundamental Rights and Directive Principles of State Policy.
A bench of Justices K S Radhakrishnan and A K Sikri refused to concede that the hands of the constitutional courts were tied in granting transgenders their due only because the lawmakers had decided not to come forward, and held that “Constitution makers could not have envisaged that each and every human activity be guided, controlled, recognised or safeguarded by laws made by the legislature”.
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The bench ruled that the Constitution ensured human rights to all, including the transgenders, and when it had envisaged so, it was time for the court to recognise it and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgenders. The judgment spoke about the “new social needs” and “to adapt to the changes in reality”.
All these observations, when juxtaposed with the SC’s December 2013 judgment on validity of Section 377 of the IPC, which criminalises homosexuality, manifest contrasting approaches of the two benches of the apex court that decided the cases in a gap of four months.
While upholding the validity of Section 377, a bench of Justices G S Singhvi (since retired) and S J Mukhopadhaya had asserted that law making was the prerogative of Parliament and hence it was for Parliament “to consider the desirability and propriety of deleting Section 377 from the statute book or amend it”.
This bench pointed out that Parliament has chosen to retain this penal provision that makes voluntary “carnal intercourse against the order of nature with any man, woman or animal,” punishable with imprisonment from 10 years to life, and hence, interference by the SC was not required.
The SC, in this case, had also stressed on the “minuscule fraction of the country’s population” comprising lesbians, gays, bisexuals and transgenders (LGBT), and quashed the Delhi High Court order to what it called the “so-called” rights of LGBT persons.
This bench reproached the High Court for “wrongly” relying upon judgments of other jurisdictions while de-criminalising homosexuality and said that Section 377 was a prohibition that regulated sexual conduct “regardless of gender identity and orientation”.
However, Tuesday’s verdict lay its foundation on a “human approach” and paramount principles of “social justice” wherein this SC bench said any discrimination on the ground of sexual orientation or gender identity trampled fundamental right to equality of a person.
It based the verdict on international conventions, which the other bench held to be nothing more than informative, and said the SC was “expected to safeguard those rights, knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance”.
In fact, the moral failure, this bench said, “lies in society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change”.