Saturday, Nov 01, 2014

One court, two mindsets

Equality before law and the equal protection of laws under Article 14 are available to ‘any person’, not just men and women, therefore the court found no difficulty in holding that discrimination on the grounds of sexual orientation or gender identity would violate Article 14. Equality before law and the equal protection of laws under Article 14 are available to ‘any person’, not just men and women, therefore the court found no difficulty in holding that discrimination on the grounds of sexual orientation or gender identity would violate Article 14.
Written by Raju Ramachandran | Posted: April 18, 2014 12:26 am | Updated: April 18, 2014 8:31 am

Its recognition of transgenders stands in welcome contrast to the judgment on Section 377.

After all, for whose benefit was the Constitution enacted? What was the point of making all this pother [yes, not bother!] about fundamental rights? I am clear that the Constitution is not for the exclusive benefit of governments and states; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the ‘butcher, the baker and the candlestick maker’.”

These ringing words of Justice Vivian Bose came to mind on Tuesday, as the Supreme Court did the Constitution proud again by coming to the rescue of the most ostracised and marginalised, the transgenders. Here was a constitutional court doing its job, performing its assigned role of “a sentinel on the qui vive” (in the words of another great judge, Patanjali Sastri). The major letdown of December 2013 in the gay rights case was forgotten that day, but it has returned to haunt us.

The two judgments of Justices K.S. Radhakrishnan and A.K. Sikri are not born out of mere compassion. They are not ad hoc judicial determinations of what seems to be fair. They are based on strong constitutional foundations, and give transgenders the protection of as many as five fundamental rights.

Equality before law and the equal protection of laws under Article 14 of the Constitution are available to “any person”, not just men and women, therefore the court found no difficulty in holding that discrimination on the grounds of sexual orientation or gender identity would violate Article 14. Contrast this approach with how the court dealt with the Article 14 argument in the gay rights case. It gave it short shrift. It said that those who indulge in carnal intercourse and those who indulge in it against the “order of nature” constitute different classes and could therefore be classified separately, forgetting that the whole case was about whether there was an order of nature.

Articles 15(1) and 15(2) both prohibit discrimination against any “citizen” on the grounds of “sex”, the former by the state and the latter even by private citizens in the matter of access to public spaces. Article 16 again prohibits discrimination on the grounds of “sex” in the matter of public employment. The court held that the expression “sex” continued…

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