One court, two mindsets

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” is not limited to the biological sexes of male or female, but was intended to include people who consider themselves neither male nor female, and that discrimination on the grounds of gender identity was discrimination on the grounds of sex.

In the gay rights case, the Delhi High Court had also taken the same view, that discrimination on the grounds of sexual orientation was discrimination on the grounds of sex. Unfortunately, the Supreme Court did not even touch upon this aspect in its December judgment.

Article 15(4) empowers the state to make special provision for the advancement of “socially and educationally backward” classes of citizens. Article 16(4) enables the state to make reservations in public employment in favour of any “backward class of citizens”. Accepting that transgenders are “socially and educationally backward” (a view that did not really need much corroboration) the court held that they are entitled to affirmative action, including reservations. The right to freedom of expression under Article 19(1)(a) was also creatively invoked by the court, to hold that it includes “the freedom to express one’s chosen gender identity through varied ways and means of expression, speech, mannerism, clothing, etc”. Gender identity, the court said, lies at the core of one’s personal identity, and gender expression and presentation will therefore “have to be protected” under Article 19(1)(a).

Then comes the right to life and personal liberty under Article 21. “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21,” said the court, and that recognition of one’s gender identity lies at the heart of the fundamental right to dignity.

Again, in the gay rights case, the Delhi High Court had held clearly that dignity, autonomy and privacy were part of the right to life and personal liberty under Article 21. But the Supreme Court, after copious quotations from judgments under Article 21, did not give a single reason why that article was not violated by the criminalisation of gay sex.

The concurring judgment of Justice Sikri draws upon philosophy and jurisprudence to examine the purpose of law and the role which the court is expected to play. It recognises that a change in the law precedes societal change and is even intended to stimulate it. It says that in order to bring about a complete paradigm shift, the law has to play a more dominant role. The role of the court, it says, is to understand the central purpose and theme of the Constitution, that in interpreting the fundamental rights in consonance with social needs, the court is only bridging the gap between law and life. This, it feels, is the primary role of the court in a democracy.

The leading judgment of Justice Radhakrishnan makes detailed references to international covenants and laws of other countries. It refers to a wealth of case law that has developed in other jurisdictions. This case law is not only from advanced countries, but also neighbours like Pakistan and Nepal, who have gone ahead of us in recognising the rights of transgenders. This is the sign of a self-confident court that does not hesitate to seek light from anywhere. This is unlike the almost xenophobic approach in the gay rights case.

One court, two mindsets. The lesson that we need to learn is this: constitutional adjudication is serious business. Article 145(3) requires that a minimum number of five judges sit to decide any substantial question of law relating to the interpretation of the Constitution. The court ought to do this strictly.

The writer is senior advocate, Supreme Court. He appeared for one of the successful petitioners in the transgender case

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