Although the decision was unanimous, there were six separate concurring judgments. A common thread runs across the findings given in all judgments that while the right to privacy is rooted in the right to life and liberty under Article 21, it is also enshrined in all other fundamental rights, including the right to equality and the fundamental freedoms under Article 19 of the constitution. It unanimously overruled the right judge decision in MP Sharma v. Satish Chandra to the extent that it holds that it indicates that there is no right to privacy and also overruled Kharak Singh v. State of UP to the extent that it did not give a positive finding on the right to privacy.

I would like to focus this piece on the manner in which the right to dignity has been the focus for the Court for the development of the right to privacy. This argument has special significance for the guarantee and protection of the rights of the transgender community. That the right to live with dignity includes the right to autonomy, to make decisions about one’s life choices was eloquently affirmed by Justice Dhananjay Chandrachud where he holds, “ …The best decisions on how life should be lived are entrusted to the individual. ……The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” He went on to hold that dignity permeates the core of the rights guaranteed to the individual under Part III of the constitution and privacy assures dignity to the individual.

Privacy ensures that a human being can lead a life of dignity by securing a person from unwanted intrusion. In the context of dignity, specific references to the protection of one’s sexuality, sexual orientation and gender identity were made as being part of one’s intimate life choices that need to be protected under the rubric of privacy. Justice Chandrachud went as far as to hold that the reasoning of the Supreme Court in Suresh Koushal vs. Naz Foundation and Others that only a miniscule minority was affected was flawed and held “That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights, which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.”

The Court went on to hold that sexual orientation is an essential attribute of privacy and that the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. This settles the rights for the setting aside of Section 377 of the Indian Penal Code. Sexual orientation rights, sexual orientation is not limited to the gay, lesbian and bisexual groups but inextricably linked to transgender and intersex persons as well. Not limiting the recognition of the right to sexual orientation, the Court went on to hold that “The rights of the lesbian, gay, bisexual and transgender population are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” It held that “Equal protection demands protection of the identity of every individual without discrimination.” This would most certainly include the right to one’s self-identified gender identity as upheld as an integral part of the right to life in NALSA v. Union of India.

The Court also held that the prosecutions under Section 377 while they may be only in a few cases, such acts of hostile discrimination are constitutionally impermissible because of the chilling effect which they have on the exercise of the fundamental rights and held that merely because there may have been a low number of prosecutions cannot mean that there was no violation of rights. The chilling effect of criminal law that violates the rights of the trans community is particularly relevant not only in the context of Section 377 but in the context of other criminal laws as well. Section 36A of the Karnataka Police Act, which has now been amended, and the Telangana Eunuchs Act are examples of criminal laws which have been targeting the trans community. While there may not be many prosecutions under such laws, they are used as threats by the police to permeate fear and violence among the community. For the first time this chilling effect faced by sexual minorities has been recognized. What is fascinating is the manner in which not only Justice Chandrachud’s main judgement, but many of the separate judgements referred to the right to gender identity and other rights relating to one’s intimate life in an very outspoken manner. J. Bobde held that the right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he or she is. It is interesting that these issues have been addressed by the courts because washrooms and toilets are the sites were current battles for recognition of the rights of the trans communities are being fought and could pave the way for the future.

How is Privacy defined?
Privacy has been defined quite simply as the right to be let alone. An elaboration of privacy has been defined by the Court as the autonomy of the individual to make his or her personal life choices. It held that the notion of privacy enables the individual to assert his / her / their personality. Justice Nariman gives three parts to the this right – (i) the aspect of privacy that relates to the physical body, such as interference with a person’s right to move freely, surveillance of a person’s movements etc., (ii) informational privacy relating a person’s private information and materials and (iii) the privacy of choice which includes the rights and freedom to make choices of one’s most intimate and personal choices. This third prong of privacy would relate to the intersection between one’s mental and bodily integrity and entitles the individual to freedom of thought, belief and self-determination and includes the right to determine one’s gender identity. Family, marriage, procreation and sexual orientation are all integral to the dignity of the individual and the fundamental freedoms under Article 19 entitled an individual to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to make choices on all aspects of life including what to eat, how to dress, or what faith to follow. What I found most relevant and moving was the observation of Justice Nariman that the guarantee of privacy as a fundamental right was important as it would protect it, despite the shifting sands of the majority government in power. It would protect non-majoritarian views, diversity and plurality which is so crucial to our country, especially in present times where we are witnessing such intolerance of differences.

Interestingly, it was also held that privacy has both positive and negative content. Not only does the right to privacy restrain the state from committing an intrusion upon the life and personal liberty of a citizen, it also imposes a positive obligation on the state to take all necessary measures to protect the privacy of the individual.

The Horizontal application of the Right to Privacy:
Justice Kaul is the only judge who refers to the protection of the right against non-state actors. He held that there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors in addition to the need for protection of such information from the State. Privacy is a fundamental right, which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. This is particularly an important issue facing the trans community as they face a serious amount of violence at the hands of private actors – family members, employers, neighbours and the society that discriminates against them on the basis of their gender identity. This is a huge step and the development of the right to privacy against private persons needs to be developed judicially.

Conclusion and Learnings:
While we should celebrate and savour the gains of at this far-reaching judgement, what the learnings? As a  women’s rights and transgender rights activist and lawyer, I find this judgement points out the need for the gender rights movements to align with other social movements and the interconnectedness of rights. The privacy rights battle in the context of Aadhaar was a battle that the LGBT movement and the women’s rights movement had not engaged with. We are incredibly fortunate that we had a Court that rose unanimously in favour of declaring proudly the rights to sexual orientation and gender identity but this should only strengthen our resolve to work for the protection of rights across movements, of class, gender, caste, disability and religion if we want to strive to protect diversity and difference.

“Words are magic things,” proclaimed pandit Nehru as the Constituent Assembly resolved, on the 13^th of December, 1946, to constitute itself into an independent sovereign republic and to give to itself, a constitution. In an unconnected context, but I daresay, in a similar allegiance to freedom, the Delhi High Court co-opted these words when it voiced the aspirations of many in its landmark judgment of Naz Foundation v. NCT of Delhi and Ors..[2] This judgment, albeit a High Court decision, stated that S. 377 of the Indian Penal Code which criminalizes “sex against the order of nature” was unconstitutional to the extent that it criminalized adult consensual “homosexual sex”[3] in private.

If it is magic that we are talking about, the proposed Transgender Persons (Protection of Rights Bill, 2016) hereinafter, the Trans Bill, 2016 has lost much of the magic of the Transgender Persons Bill, 2014 (hereinafter, the Trans Bill, 2014).[4] Gone from the 2016 Bill is the government’s commitment to reasonable accommodation for transgender persons[5], the right of transgender persons to live in community[6], their right to free legal aid, the commitment of the government to take proactive steps to protect transgender persons from violence and exploitation[7], concessional loan rates available to transgender persons, transgender persons’ entitlement to social security measures from the government in the form of community centres, shelter, water, pensions and unemployment allowance.[8] Gone are measures, perhaps carelessly called rehabilitation measures in the areas of health, employment and education.[9] Gone are affirmative action measures in the form of reservation of seats and posts in education and employment.[10] There are several other modifications of language in different sections that could limit government obligations– I have not mentioned them here.

This short article is not about that. After all, previous versions of Bills are not binding; they cannot be produced in court as obligations a judiciary must enforce. Yes, they can be produced in court as evidence of what the legislator once intended to say. By contrasting them with the passed version of the Bill (the “Act”), one may establish, what the legislator actually intended. After all, exclusion unius est exclusio alterius is a serious rule of statutory interpretation, taken seriously by the Indian courts. The rule means that if the legislator omitted to write some something, or if the legislator excluded something, they intended to do so. Therefore, if the legislator committed to reservation in one version of the Bill but omitted it in a later version, they intended to do so. So on and so forth. The courts cannot ignore this rule. Sure, they can find good reasons to not adhere to it but they would have to be overpowering reasons; reasons more urgent than the call of this rule. Judgments cannot, unless they open themselves up for criticism on this ground, proceed in disregard of this rule. However, this article is not about that.

This article is about a rule that can be argued in court. Article 141 of the Indian constitution states that the judgment of the Supreme Court is binding on all lower courts. Therefore, all lower courts must enforce Supreme Court judgments. Article 142 of the Indian constitution empowers the Supreme Court, to pass any order or direction which is enforceable as law, in the presence of a legislative vacuum on a topic.[11] As there is no legislation on the rights of transgender persons in India, the Supreme Court directions and rulings on the matter, are by force of Article 142, law. They are the law of the land currently. This of course, does not place any obligation on the legislative wing to translate these very findings into law, but in fact, it has been the practice in such matters, as Justice of the Supreme Court (Retd.) Ruma Pal[12] has noted, to incorporate the Supreme Court judgment into statues.[13]

Therefore, until the legislative wing actually formalizes the Bill into an Act, the Supreme Court judgement rules the field and must be enforced by lower courts (Article 141) and, by the authorities contemplated in the ruling, as per Article 142. Once an Act comes into being, the Supreme Court again has two choices. First, it can test the Act against constitutional guarantees.[14] It may find that some of the provisions of the Act deny fundamental rights to transgender persons and hold those provisions invalid. Second, in its exercise of the ‘complete justice’ provision, the court may by- pass the provisions of the Act and restore its prior directions/pass new orders.[15] Both these choices can be exercised together or independently.

This article contrasts the judgment of the Supreme Court of India in the National Legal Services Authority v. Union of India and Ors. [NALSA] case, which found that all fundamental rights extend to transgender persons, with the latest version of the Trans Bill; Trans Bill 2016.

1. Definition of Transgender

Trans Bill, 2016 defines a transgender person as “neither wholly female nor wholly male”; or “a combination of male and female”; or “neither female nor male”; and “whose sense of gender does not match with the gender assigned to that person at the time of birth…”[16] The positioning of the and seems to suggest that the Bill understands transgender as being a mix of biological and internal identity-based conditions. There is no necessary connection between biology and a deeply felt gender identity i.e. it is not necessary that one have intersex conditions such as be a “combination of male and female” or have ambiguous genitalia for them to feel that they truly belong to another gender. This is a myth. In fact, scholars such as Serena Nanda have found that most Hijra persons are born with genitalia such that by medical standards of sex-assignation they are assigned male at birth by doctors.[17] The Supreme Court understood this when it defined transgender purely in terms of a deeply felt gender identity.[18] The proposed definition of the Bill has the potential to exclude from protection of the law, several transgender persons who do not meet the biological conditions highlighted here.

Moreover, the Bill removes from the definition of transgender, references to several regional identities such as Hijra, Kothi, Aravani etc. all of which were included within the Supreme Court’s umbrella definition of transgender[19], and were included in the definition of transgender in the Trans Bill 2014.

2. Right to a Self-Identified Gender

The Supreme Court decision affirmed the right of a transgender person to their self-identified gender.[20] However, as per S. 4(1), Trans Bill, 2016, “a transgender person has a right to be recognized as such, in accordance with the provisions of this Act.” Once this has happened, “a person recognized as transgender under sub-section (1) shall have a right to self-identified gender.”[21] It is important to note the potential of this wording. The right to self identify which stood independently as per the court decision seems to have been subsumed under the “provisions of this Act” as per the Bill. Reading further[22], one finds that a transgender person must submit an application to the District Magistrate (D.M.) to obtain a transgender certificate. The D.M. passes this application on to a screening committee which comprises a doctor, a social worker, a psychiatrist or psychologist, a government officer and a member of the transgender community. This committee peruses the application and based on its recommendations, a certificate of identity is issued to a transgender person.

This screening process has perhaps been set up to counter apprehensions that people would abuse the final Act by falsely claiming that they are transgender when they are not. Even if people were to take on a false identity mired in stigma and discrimination to make themselves eligible for the same scheme of constitutional protections they received as non- transgender persons (reservation etc. is removed from the Trans Bill, 2016), this kind of legal rewiring of the self-identity guarantee has the potential to subject transgender lives to increased legal and medical regulation that they may find repugnant to the notion of “self-identity.”

The Trans Bill, 2016 does not lay down what criteria this screening committee will look at to make a determination. It is unclear whether these criteria will be developed in consultation with transgender persons. Doctors, psychiatrists and psychologists preside over this committee. There is only one transgender person on this committee. Trans Bill, 2014 recognized a person to be transgender in the sense of identity alone “irrespective of surgery.” This phrase is now removed from the definition of transgender from the Trans Bill, 2016. Could this mean that the government could lay down a requirement for surgery as a condition for the transgender certificate? True, the Supreme Court has stated expressly that, “any insistence on SRS for declaring one’s gender is illegal and immoral”[23] but this will come up for decision only when such a rule will be challenged in court. What would happen in the interim?

The definition of transgender as per the Trans Bill, 2016 envisages a mix of biological and gender identity conditions to co-exist for a person to be transgender. Will the screening committee then require evidence of such intersex biological conditions? Will the psychiatrist or the psychologist have to diagnose a gender identity disorder before a person can get a transgender certificate? If so, would this not further pathologize the identity? Even if we find good reasons for these criteria, will the transgender person be facilitated enough to procure these documents? Visits to the doctor or the psychologist puts one in an extremely vulnerable position, heightened manifold when the doctor does not explain the situation and when limited understanding of that specialized discipline hinders people’s ability to ask questions. Many transgender persons do not have an extensive educational experience owing to discrimination.

Perhaps, it was in recognition of these facets that the Supreme Court did not lay out any criteria for self-identity, leaving it completely to be self-determined.

3. Transgender Certificate

The Trans Bill, 2016 contemplates that the certificate of identity be issued to a transgender person as “transgender” [S. 7]. Plain reading of this section is contrary to the Supreme Court judgment that a transgender person has a right to self identify as “male, female or third gender.” The Trans Bill, 2016 must recognize that some transgender persons may want to identify with the opposite sex in true recognition of their deeply felt gender identity. They may not want to recognize as transgender. Even if a transgender certificate is required to identify persons eligible for associated benefits, the certificate must additionally make provision to identity a person’s deeply felt gender identity.

4. Reservations

The Trans Bill, 2016 does away with the direction of the Supreme Court obliging governments to provide reservation in educational institutions and public appointments.

5. Failure to Enact Measures to Address Stigma, Fear, Shame Etc.

There are no provisions in the Trans Bill, 2016 to address problems “such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc.”[24] as required by the NALSA decision. To be sure, there are welfare measures envisioned for transgender persons[25] but nothing in the 2016 Bill suggests that the government will initiate programmes directed at the general public with the aim of educating them about transgender persons. Shame and stigma will not be addressed until the society that stigmatizes and shames this population is educated in this regard. The Trans Bill, 2014 understood this when it proposed measures [S. 25, Trans Bill, 2014] to raise awareness among the general population to “promote values of inclusion”, “foster respect”, “provide orientation and sensitization at school” etc. Moreover, failure to enact public awareness programmes is in express contravention of the directions of the Supreme Court in NALSA.[26]

6. Penalties in Trans Bill, 2016

Whether criminalizing discrimination and exclusion of transgender persons would be a good means to address the stigma transgender persons face is open for debate. In a scenario when there are no educational or awareness building programmes about transgender persons addressed to the general public, might criminal penalty against discrimination lead to further entrenchment of negativity against this population? The final Act must seriously consider this question before enacting this measure.

Additionally, even if criminal penalties are employed, they create an anomaly. The Trans Bill, 2016 sets an imprisonment term of six months to two years (along with fine) for “harms and injuries” that endanger “life, safety, health, or well- being.” This is as per S. 19(d) of the Trans Bill, 2016. The kinds of harms contemplated by this section extend from economic abuse, to verbal abuse, to physical abuse, and sexual abuse.

The anomaly is that some of these kinds of abuse are dealt differently by co-existing law—the Indian Penal Code, 1860 (I.P.C.) being a prime example. For example, life endangering physical abuse contemplated in the Trans Bill, 2016 seems to most closely resemble grievous hurt in I.P.C.[27] Grievous hurt is punishable with imprisonment up to seven years (along with fine).[28] Grievous hurt caused with a weapon can attract an imprisonment of up to ten years along with fine.[29] Grievous hurt caused by acid will attract imprisonment of at least ten years extendable to life (along with fine).[30]

Under which Act will a person who has caused grievous hurt to a transgender person, be punished? Will the offender receive a punishment under the provisions contemplated under the special Act or will the offender be punished under the I.P.C.? The general rule is that the special Act takes precedence over the general Act but this rule is confounded by the following assertion in the Trans Bill, 2016: “the provisions of this Act shall be in addition to, and not derogation of, any other law for the time being in force.”[31]

7. No Protection from Discrimination on Grounds of Sexual Orientation:

The Supreme Court in NALSA had stated that, “Discrimination on the ground of sexual orientation and gender identity, (…) impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”[32] However, this version of the Bill, like the last version of the Bill, fails to prohibit discrimination on grounds of sexual orientation.[33]

8. 8. “The evil that men do lives after them; the good is oft interred with their bones”[34]

Let this not be the case here. There are some good aspects of the Trans Bill, 2016 as well which the final Act would do well to retain. Provision is made for separate sero-surveillance centres[35]; the right of residence (in the sense of a right to not be separated from one’s family/removed from the house) is guaranteed to all transgender persons and not just transgender children[36], and there is an attempt to make education more inclusive and the phrases which could lead to potential segregation in this field are done away with.[37]

Words are magic things. The magic of words, however, can also be lost if one is careless with them. The legislature must carefully consider the directions of the Supreme Court before finalizing an Act to protect the rights of transgender persons. For, if they fail to do so, a keen observer is liable to ask, “What ails the legislature?” Another may stare blankly in response.

FOOTNOTES AND REFERENCES

[1] Surabhi Shukla is a lawyer and currently, a PhD (law) student at the University of Oxford, U.K.

[2] 2009 Delhi High Court. See para 129. Judgment here: https://www.escr-net.org/sites/default/files/Court_decision.pdf

[3] Meaning in the context the judgment was given—sex between persons of the same sex.

[4] I must put before the reader, in fairness, that the Trans Bill, 2014 was not without flaw. My colleagues and I have critiqued provisions of it in Upasana Garnaik, Surabhi Shukla and Brian Tronic, Rights of Transgender Persons Bill, 2014, in 10(1) LAW AND POLICY BRIEF (Ashish Bharadwaj and Saptarshi Mandal ed., October, 2015).

[5] S. 4(2), Trans Bill, 2014.

[6] S. 7, Trans Bill, 2014.

[7] S. 10, Trans Bill, 2014. As opposed to taking steps to address violence after it has occurred in Trans Bill, 2016.

[8] S. 11, Trans Bill, 2014.

[9] S. 19, Trans Bill, 2014.

[10] S. 21, Trans Bill, 2014.

[11] Article 142, The Constitution of India, 1950.

[12] A former judge of the Supreme Court of India.

[13] Justice (Retd.) Ruma Pal, ‘Separation of Powers’ in Choudry, Khosla & Mehta (ed), The Oxford Handbook of the Indian Constitution (OUP 2016)    265. In fact, Pal goes so far as to say that such directives have, ‘rarely been overturned by legislation to the contrary.’ [page 265]. Pal and another commentator writing on the issue have identified only one instance in which Supreme Court directions faced resistance from the executive in the case of Prakash Singh v. Union of India (2009) 17 SCC 329. See also, Raeesa Vakil, ‘Jurisdiction’ in Choudry, Khosla & Mehta (ed), The Oxford Handbook of the Indian Constitution (OUP 2016) 381. I am unaware of other instances.

[14] This power vests both in the High Courts and the Supreme Court.

[15] Justice Ruma Pal and Samarditya   Pal (eds) MP Jain’s Indian Constitutional Law (6^th edn, LexisNexis Butterworths Wadhwa, 2010) 287-288.

[16] [ S. 2(i)].

[17] Serena Nanda, “Neither Man Nor Woman” xx (Wordsworth Publishing Company, 2^nd Edition, 1999).

[18] Para 11, NALSA.

[19] Para 12, NALSA.

[20] Para 129(2), NALSA.

[21] S. 4(2), Trans Bill, 2016.

[22] Ss. 5-7, Trans Bill, 2016.

[23] Para 129(5), NALSA.

[24] Para 129(5), NALSA.

[25] Ss. 9 and perhaps, 18 of the Trans Bill, 2016.

[26] Para 129(8), NALSA.

[27] S. 32o, Indian Penal Code, 1860.

[28] S. 325, Indian Penal Code, 1860.

[29] S. 326, Indian Penal Code, 1860.

[30] S. 326A, Indian Penal Code, 1860.

[31] S. 20, Trans Bill, 2016.

[32] Para 55, NALSA.

[33]This argument is also made in Upasana Garnaik, Surabhi Shukla and Brian Tronic, Rights of Transgender Persons Bill, 2014, in 10(1) LAW AND POLICY BRIEF (Ashish Bharadwaj and Saptarshi Mandal ed., October, 2015).

[34] Mark Antony at Julius Caesar’s funeral in Shakespeare’s play, Julius Caesar.

[35] S. 16(a), Trans Bill, 2016.

[36] S. 13, Trans Bill, 2016 as opposed to S. 11, Trans Bill, 2014.

[37] S. 2(c), Trans Bill, 2016 as opposed to S. 2(i), Trans Bill, 2014.

Incensed at this gross violation of the Supreme Court’s NALSA ruling, Avi filed the following online RTI, providing a summary of the ruling as attachment:

“The Honourable Supreme Court in its judgement dated 15th April 2014 in W.P. (Civil) No. 400 of 2012 held that Transgender individuals have the right to decide their self-identified gender and the Centre and State Governments were directed to grant legal recognition of their gender identity such as male, female or as third gender. NALSA’s reasoning rests on two broad stands of human rights: freedom and equality. Underscoring the right to personal autonomy and self-determination under Article 21 of Indian Consitution, the Court observed that the gender to which a person belongs is to be determined by only the person concerned. The decision recognises the right of a person to identify in the gender that they relate to, that is, male, female or third gender, irrespective of medical/surgical intervention. 

“So the gender assigned to me at my birth, i.e. male, is nothing but my gender expression which is not always in line with my gender identity and since now I have an opportunity to correct it, I should be allowed to change the gender/sex section of all of my official documents including passport without undergoing gender reassignment surgery.

“However, while doing the same through Passport Seva website, I was asked to provide four mandatory documents:
1. Document type 8017: my original passport
2. Document type 7001: the proof of present address
3. Document type 8049 : Sworn affidavit regrading change of sex.
4. Document type 8050 : Certification from hospital where he/she underwent sex change operation successfully

“I simply failed to understand how the Ministry of External Affairs is still holding onto something which was declared illegal one year ago. No one should be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. This whole process of asking individuals for a medical certificate to prove their gender identity is not only brutally humiliating but it is also showing that the various departments of Indian Government are not in sync. Government is contradicting itself.

I am hereby attaching a document for you which will help you understand the last years judgment.”

The relevant sections of the reply are reproduced below:

This reply reflects a failure on the part of the Ministry of External Affairs to understand the NALSA ruling. Adding a third gender or “T” category does not suffice to make the Ministry of External Affairs NALSA-compliant if it still requires proof of surgery for recording a change of gender. Further, not all transgender people seek to identify as “T”, and are at liberty to identify as M or F, per the judgement.

We thank Avi for sharing this correspondence, and urge readers to share other instances where central Ministries and their departments at state and district level continue to function based on ignorance or misinterpretation of the NALSA ruling.

Goolamhussein Essaji Vahanvati, the 13th Attorney General of India, passed away on September 2, 2014, from a heart attack, at the age of 65. He served in office from June 2009 to May 2014, and was much in the news in the last years of the previous government, particularly for having to defend some dubious legal decisions. We remember him as a supporter of decriminalisation of homosexuality, both from before he became A-G and while he was serving.

In 2008, when he was solicitor-general, Vahanvati spoke before the UN Human Rights Council, trying to argue that India’s homophobia was a colonial relic [see ref, courtesy Aditya]. He stated, “Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct… [a]s a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted Section 377 which brought in the concept of ‘sexual offences against the order of nature’.

In another piece he wrote in the Asian Age (hat tip to Nitin for posting it on the GB list long back) before he became A-G and while we were fighting the matter in the Delhi High Court, he stated “People have the right to lead their lives, privately, so long as they do not affect others… [I]n our country the right of persons to live their lives privately and on their own terms may take quite some time to achieve recognition. There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example.”

The Union of India was against us at that time and it is significant that Vahanvati, who was a well known senior lawyer, was willing to take a public stand at that time.

When he became A-G I remember hearing speculation that he would not stick to his earlier stand when the matter came up in the Supreme Court. He was the first Muslim A-G and there were rumours he was under pressure from fundamentalist quarters not to support LGBT rights. And it did seem that was in the first chaotic days of the Supreme Court of India arguments when the government lawyer who had opposed us in the High Court got up to reiterate the arguments.

Almost immediately another government lawyer got up to say that he was wrong, but the damage was done and the judges were annoyed and demanded the A-G come to clarify matters. I remember we speculated he would not and just avoid the case, but to Vahanvati’s credit he came towards the end and fully supported us and said the law needed to change. Sadly, the judges didn’t listen to him.

Two days after the infamous 11-12-13 decision of SCI, Vahanvati wrote a strong piece in The Times of India titled “Law can’t remain static: Government told SC that Section 377 didn’t reflect Indian values”.  Some excerpts:

” I belong to the school of thought which believes that an Attorney General must be heard in court and not outside it. However, there comes a time when an exception has to be made. I believe this is one such time. Given the importance of the matter and widespread anguish and heartache across the country, i feel that i must depart from this self-limitation to set the record straight and to explain the stand taken by the government in the Section 377 case.

“In my written submissions, therefore, I clearly and categorically stated: “Accordingly, it is submitted that the government of India does not find any legal error in the judgment of the high court and accepts the correctness of the same. This is also clear from the fact that it has not filed any appeal against the judgment of the high court.”

“The concept of intercourse against the order of nature is troublesome. It raised further questions: “What then is the order of nature?” and “What is against the order of nature?” Is it not conceivable that what was perceived to be against the order of nature in 1860 may not subsequently be perceived to be against the order of nature particularly in view of a change in society’s understanding or tolerance of that thing?

“The world has moved on. It is fast changing. Perceptions have changed. Attitudes have changed. Law does not and cannot remain static. Whenever necessary, the Supreme Court has reflected changed perceptions of the law and has struck outmoded laws down. They did so when striking down rent control laws as socially irrelevant. They also did it by breathing fresh life into Article 21, protecting life and personal liberty. They did it by consigning the archaic judgment in A K Gopalan vs State of Madras, rendered in 1950, into the dustbin of history. Unfortunately, they declined to give a similar treatment to Section 377. Therein lies the tragedy. ”

RIP Mr. Vahanvati, we will need more allies like you.

A tribute from lawyers Mayur Suresh and Arvind Narrain is here.

It is very important that the rules/ methods and procedures of the implementation be simple and straightforward. This is because the bureaucracy, in particular, has never had suitable training on gender issues or sex education. To hit the nail on the head, an essential universal instruction that should be adopted by all state governments and their implementing departments is the following (as per page 20-21 of the judgement):

If any Indian citizen wants to change their  gender assigned at birth, then they are permitted to do  so by filing a gender affidavit* indicating their preferred gender (from any of the three legally recognized ones). No additional medical certificates or endorsement/clearance by third parties (including relatives) need be furnished for the procedure.

(* A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.)

This will enable people to live as they like in their gender of choice. If they are not allowed to, then it amounts to a crime committed on them by sections of society – that is about it. Trans woman may choose to identify as “women” or as “third gender” and trans men may opt for identifying as “men” or “third gender”. Those hijras, thirunangais and other gender diverse people who consider themselves to be outside of the gender binary system have the option to identify as the “third gender”.  Many transsexuals follow a binary perspective when it comes to specifying their own gender identity, but  some may have issues with “passing”. All transsexuals do not transition in the same way and to the same degree of completion – whatever that means. Those are some reasons for the options.  Ideally we should permit people to use any label they desire, but the scope of the judgement is limited.

It is important that the existing laws on marriage be changed to accommodate relationships between people of any genders. Some studies suggest that the majority of trans women are lesbians or are bisexual, and that many trans men are gay or bisexual (see reference here). Often these people may be in conventional marriages before transition and these are bound to get into legal complications after transition. All this is further complicated by the general taboo against same-sex relationships in India. Then again, people of other genders do marry and/or form relationships with people of other genders in other ways. My personal view is that the state should not concern itself with the subject of marriage in the first place. But if it chooses to, then it should stop its grotesque discriminatory practices.

The SC ruling has directives on protecting the rights of trans people and people of indigenous genders in particular. Proper implementation requires that we have suitable infrastructure, personnel and universal sex and gender education. Of course, that is apart from basic benefits like free medical care, preferential access to education and sustainable living tracts. It is implicit in the ruling that State Governments are obligated to provide all of the benefits. Given the strength of the ruling, I am not too sure about the extent to which they will dare to violate the implicit guidelines.

NALSA vs Union of India Judgement [read here]

Operative part of the Judgment [English] [தமிழ் translation]

Aniruddha Dutta, 2014. Thoughts on the Supreme Court Judgment on Transgender Recognition and Rights. Orinam [read here]

Anindita Mukherjee, 2014. SC landmark transgender judgment: What it says, what is good and what it muddled up. Legally India [read here]

Legal, Academic and Community Analysis of SC Judgement. Compiled by Orinam [read here]

Ubuntu Women. Clarifications on Basic Terminology and Related Recommendations [read here]

Yogyakarta Principles [English] [தமிழ் translation]

The Task Force. Injustice at every turn. [read here]

Story of X (via Good As You Bangalore, shared with X’s permission)

I am finally ready to share what happened to me last Wednesday… finally I am able to make sure nobody else goes through this kind of agony which I had to go through as a victim in this situation. Yes, I know it’s because article 377 still sits on us as homosexual individuals, who are trying really hard to make a respectable living after coming out of closet to our folks. There are times when we do get lonely and want to meet someone, with complete trust and hope of new possibilities of friendship, companionship, fun or a much serious relationship.

Last couple of weeks my gay profile on a popular gay dating site was followed up by this one guy, and I received numerous request for friendship and dating from him. But luckily I was a bit pre-occupied with a yearly house party planning and preparation, and of course, my work. But finally last Wednesday I was taking a day off after an amazing party and my work, when I again received a request to share my number for a fun date from him, the same afternoon. Without thinking much I invited him over at 4pm to my place in North Bangalore. Finally at 4:15pm he (Shyam) reached my door, after multiple phone calls to guide him with directions to my place. He seemed to be a bit unsettled and said he is from a small town and is new to all this. Just to make him comfortable I offered him a cup of coffee. While we were having coffee in my dining area, he was asking all sorts of weird questions like ( how many guys I have met so far… since when I have been using this dating site… how many dates in a week and all that…) he was talking to me, a bit strangely, as he was hiding his face behind the coffee mug… And I could only see his eyes… Still he seemed to be a bit unsettled and asked if he can smoke. Being a non smoker myself I asked him to move to my balcony while I cleaned up the coffee mug. I stay all alone in this beautiful house, and I try my level best to keep it clean and tidy… So he was complimenting me on the same… but suddenly I heard a knock on my front door. So I washed my hands and went to open the main house door.

To my complete shock, I see three men of roughly 25 to 30yrs age group, flashing their video cameras, and phone cameras at my face. They checked me with my real name and asked what I am doing in my house at that point of time. I felt an immediate surge of horror, of being caught doing something offensive. And as a response to that I thought I should close the house door at once on their face… but then the next very second I realized I don’t want to come across as someone shying away from the media cameras if this footage is ever gonna be telecasted any where… as I have not done any crime which I should be shying away from. So I allowed all these 3 guys to come inside and locked the door myself. Still their cameras where pointed at me and they were trying to make me feel as if I have done something really wrong. They, without my permission inspected both my bedrooms, restrooms and kitchen to finally go to my balcony and pull that date guy (Shyam) by his shirt sleeve. By that time I had already started thinking of worse possibilities.

Close to one year back, all of us users of this popular gay dating site where informed about the TV9 spy operation where they presented couple of gay guys’ profile openly on national television and naming us all as predators from whom the society needs to be at ALERT. So by now I was connecting the dots and it was very clear that they must be from some media bully or spy network, trying to create some content for themselves. I found myself engrossed in the panic attack and a fear that any gay person in this country has to face now, under the shadow of Article 377. If this content is released without my free will, I could imagine the scrutiny which I might have to face professionally or personally with my family and friends. Just in fraction of seconds I could sense that its gonna be a doomed life going forward. I could also imagine how much what really happened will be twisted, which will show me or any other gay guys as social sexual leeches who live undercover life. So I immediately to my defense asked them for their id card and warned them of calling the police. But they said that they have already informed the police and showed me their ID card, which stated that they were from some media content team called cyber square or something like that. I was fearing them so I quickly dialed the number of one of my friend whom I could call in an awkward situation like this one. But only to find that he is taking a short break in Udupi for that week. So I was feeling complete helpless and given to this situation and to these guys. I could also imagine them blackmailing me to pay them heavily for this footage which they have in their possession.

Finally one of the guys showed me a folder which had black and white printout of my profile images and my chat with Shyam, from that dating site. As they say, in situations like these only we can help ourselves, and to my shock, instead of fearing them, I accepted that I am gay and I do have profile on that site and also that Shyam was there to meet me for a date. I also openly said to them on their face that I know that Shyam is part of their team and they all were together trying to catch me helpless in this situation. “ I don’t fear you guys anymore as I am gay and am not ashamed of it. I am not afraid that you will show all this in television as, I am out to my parents and close family and friends. I don’t work for any corporate that I am need to fear losing my job if this video is released openly… So do whatever you want… But since you guys say that you are from some media content team, I am currently only dressed in my vest and my boxer… Why don’t you give me 2 minutes so that I can change into more appropriate clothes and come back to reshoot the entire footage with you all from the start… So that atleast I don’t look inappropriately dressed for a date.” By the time I said all this the smile had returned back on my face for being so strong and taking charge of what was happening.

Yes I did open up to all my close friends gradually in the last 2 yrs – to both my elder brothers in the last 1yr and my parents, just couple of months back. I could only feel happy at that moment for coming out of closet and sharing the real me with people for whom I really care or who matter to me in my life. But I think this all bravery talk like gladiator really turned the dice in my favour. I could see that their energy and tone in their voice had changed. And the smartest one, their leader immediately leaned forward that that they simply wanted to give me a media ALERT “I should not let unknown people inside my house like this”. And they all immediately wrapped up everything and left my house. It was all so quick that I could only see them leaving my main door. Yes they were finally gone and I could finally feel the cold sweat behind my ear.

Recommended Reading: Dealing with Extortion

Part I: Introduction and first part of Ashok Desai’s talk

Part II: Second and concluding part of Ashok Desai’s talk

Part III: First part of Shyam Diwan’s talk

Part IV: Second and concluding part of Shyam Diwan’s talk

Part V: Menaka Guruswamy

Part VI: Arvind Narrain

Part VII: Q&A Session

*Speaker biographies:
Ashok Desai, Senior Advocate and former Attorney General for India. He has argued several landmark constitutional law cases in his professional career spanning over six decades. He was awarded the Padma Bhushan by the Government of India in 2001.

Shyam Divan, Senior Advocate, is a distinguished counsel with many years of practice before the High Court of Bombay and the Supreme Court. He has been involved in many important constitutional law cases and his written extensively on environmental law in India.

Menaka Guruswamy practices law at the Supreme Court of India. She has been involved in a number of key constitutional law cases including on administrative reform and encounter killings. She has written extensively on constitutional law and the Supreme Court. She has taught at Columbia Law School and New York University School of Law.

Arvind Narrain is a human rights activist and lawyer with the Alternative Law Forum, Bangalore, of which he is a founder member. He is the author of Queer: Despised Sexuality, Law and Social Change (2004) and co-editor of Because I have a Voice: Queer Politics in India (2005).

Here is the full text of the petition signed by 1157 students, alumni, faculty and staff the Indian Institutes of Technology against the Supreme Court’s decision to re-criminalise same-sex behaviour among consenting adults in private.

While, unfortunately, the Supreme Court chose to ignore these and other submissions, this petition stands testimony to the increasingly progressive attitudes among members of these premier institutions of technology education and research. Check out the website of Saathi, IIT-Bombay’s campus queer group and Samvita Kalyan’s piece ‘A Rainbow-Coloured Movement‘ published in The Fifth Estate, IIT-Madras campus newsletter, for more evidence of the growing visibility of queer and trans people on campus, and of heartening support from allies.

To
The Honourable Chief Justice of India,
The Honourable Prime Minister of India,
The Honourable Minister of Home Affairs, India,
The Honourable Minister of Law and Justice, India,
The Honourable Minister of Human Resource Development, India,
and The Directors of the Indian Institutes of Technology.

Dear Sirs,
We are a group of students, alumni, faculty and staff of the Indian Institutes of Technology, collectively expressing our shock and disappointment at the Supreme Court’s decision to reinstate Section 377 of the Indian Penal Code. Section 377 is a British-era statute that outlaws “carnal intercourse against the order of nature” and includes within its ambit intercourse among consenting adults of the same sex. We hold that this law violates the fundamental rights of privacy and autonomy accorded to all Indian citizens by its Constitution, and the rights to dignity, equality and due process of Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) citizens. While we demand that the law be immediately modified to exclude all forms of sexual intercourse among consenting adults, we wish to reiterate that this is merely one step towards the goal of equal membership in Indian society for everyone, regardless of sexuality and gender identity.

In 2009, a landmark judgment issued, by the Delhi High Court, declared Section 377 unconstitutional insofar as it applies to consenting adults. Embarking on a well-researched and empirically informed analysis of the impact of the law on sexual minorities, the Court found the law to be arbitrary in its scope and intent, as well as in violation of the right to equality under the law, and the right to dignity and personal autonomy. The Delhi High Court elevated sexuality and gender identity to the status of a protected class under the Indian Constitution, thereby laying the foundation for future efforts to end discrimination in workplaces, educational institutions and domestic environments.

Where the Delhi High Court’s ruling was a bold effort to give life to the promise of Indian Constitutionalism, the Supreme Court’s decision to reverse it is a deceptive attempt to use judicial restraint as a cover for its refusal to critically interrogate the social effects of legal provisions. Ignoring the lived experiences of LGBTQ people in India altogether, it argues that Section 377 merely penalizes certain acts and does not stigmatize a class of Indian society based on sexuality and gender identity. By failing to recognize the fact that the law exposes LGBTQ people to illegal extortion, harassment and persecution, and by suggesting that the rights of LGBTQ individuals are less worthy of protection because of their “miniscule proportion”, the Supreme Court has failed to perform its constitutional responsibility and betrayed the trust of the Indian people. Suffering from contradictory arguments, dubious factual claims, and an absolute lack of empathy, the judgment is an affront to the values of fostering a scientific temperament as part of the commitment to the betterment of humanity, upon which our nation was founded, and which motivated the foundation of the Indian Institutes of Technology.

LGBTQ individuals, activists and supporters from all parts of India have risen up in shock, anger and outrage, determined to repeal 377 and to make their claims of citizenship heard in the public sphere. They have received the support of the legal community, a large section of the country’s political leadership, human rights monitors in the United Nations as well as supporters throughout the global diaspora, of which IITians constitute a substantial share. It is to this chorus of dismay and disapproval that we seek to join our voice. We write to express our commitment towards the rights of LGBTQ people, including members of the Hijra, Aravani, Kothi and like communities, to live their lives with dignity, freed from the burdens of fear, loathing, and pervasive discrimination.

We reiterate that our concern goes beyond the rights of adults to participate in private acts of consensual sex. It is focused on the public domain, where alternate sexuality and gender identity is often treated as a form of deviance in schools, colleges, workplaces, religious institutions, and governmental institutions. Patriarchy and hetero-normativity are pervasive facts of social life in all parts of the country, including the campuses of elite institutions like the IITs. Women and LGBT individuals among the undersigned have often experienced prejudice in their routine interactions with their classmates, colleagues, professors as well as members of the institute administration, and these experiences of prejudice at close quarters can sometimes be more debilitating than an archaic and distant law.

The institutionalization of prejudice, both in the legal and the social spheres, is often premised on claims about certain sexual practices being “unnatural”, imports from “western” cultures and symptoms of “mental illness”. These claims have been emphatically shown to be incorrect. Same-sex intercourse is found in about 1,500 species of animals, including the species closest to Homo sapiens in evolutionary terms. There are many instances of alternative sexualities being expressed in Indian mythology, as seen in the work of scholars like Ruth Vanita and Saleem Kidwai. Moreover, there is increasing evidence of a hidden sub-culture of queer people in medieval and early-modern India. The Hijra, Aravani and Kothi communities have oral traditions which prove that queer identities are as native to Indian civilization as any other. The medical community, including the American Psychiatric Association, Indian Psychiatric Society and the World Health Organization, have repeatedly argued that alternative sexualities and gender identities are not symptoms of mental illness. Given the preponderance of scientific, historical and anthropological evidence, it comes as somewhat of a surprise to us that patently incorrect claims are still circulating in society, and we call upon the scientific establishment and various educational institutions – including the IITs – to assist the LGBT community at large in dispelling these misconceptions.

While efforts to read down Section 377 and to dispel societal misconceptions must continue, we also re-commit ourselves to protecting the gains made in recent years within IITs to create a more welcoming atmosphere for women and LGBT individuals. While Section 377 has, in the past, relied heavily on social stigma to penalize sexual minorities, we assert that we will not allow ourselves to be used in this manner to discriminate against our own peers. Several support groups for queer students have been established and received official recognition in various IITs in the past two or three years. Their rights of free association are by no means affected by a law that merely criminalizes certain sexual acts. We therefore hope that they will continue to get the full support of their peers, their professors and the institute administrations. In short, while the latest Supreme Court judgment represents an unfortunate reversal in the development of India’s human rights law, we hope that this will not halt the realization of human rights for women and sexual minorities through concerted social change, with IITs leading the way.

Yours sincerely,

Download the full list of 1157 signatories here.

Hope you enjoyed watching our previous hangout video Growing up Gay and Tamil, where our members talked about realizing their sexuality and coming out.

In this hangout, some of Orinam’s members who are gay talk about how they dealt with their family members post-coming out (Language: Tamil)

இந்த ஹங்அவுட்டில் ஓரினம் அமைப்பை சேர்ந்த சில தன்பாலீர்ப்பு கொண்ட அங்கத்தினர்கள், தங்கள் குடும்பத்த்தினரை சமாளித்த அனுபவங்களை பற்றி பேசுகிறார்கள்.

பகுதி 1/Part 1:

பகுதி 2/Part 2:

This decision is particularly egregious as the Court’s decision in Koushal was replete with errors apparent on the face of the record. The Court disregarded arguments made by the parties, did not consider key findings of the Delhi High Court judgment, and was seemingly blind to the voluminous material on record that incontrovertibly established rape, torture, discrimination, and harassment of LGBTQ persons as a direct and inevitable consequence of Section 377.  Today’s decision represents an abdication by the judiciary to protect the spirit of the constitution. It is a failure to assert that fundamental rights hold for all persons however “miniscule” their numbers are perceived to be.

The LGBTQ community, however, is not disheartened. Regardless of the decision of the Court, our activism asserting the right to live without fear and discrimination, and indeed to live with pride, will remain undimmed. If anything, we are strengthened and heartened by the wide range of support we have seen and felt. The media, mainstream political parties, ordinary persons, families of LGBTQ persons, mental health professionals, teachers, academics, artists have all stood with us in favour of the constitutional guarantee of dignity to the LGBTQ community. They have shown us that there is nothing ‘miniscule’ about the concerns of the LGBTQ community and that the fight against discrimination is everyone’s fight.

Going forward, we will build on the gains of this unprecedented assertion in favour of the rights of LGBTQ persons.  We will continue to wage the legal battle against Section 377 as there is an urgent and compelling case for the law to go. We will pursue all legal options, including curative petitions, to again assert that the Court has made an egregious error in this case by denying the right to equality and dignity to a section of the population. We will mobilize as a community to ensure that there is no legal or extra-legal violence or discrimination faced by LGBTQ citizens, we will expand the networks of support spaces across the country. We will continue to protest and advocate with all institutions and persons to remove any discrimination on the basis of sexual or gender identity.

We see the dismissal by the Supreme Court as nothing but a temporary reversal. The history of struggle against anti-sodomy laws worldwide teaches us that, sooner or later, unjust laws are defeated even as the battles may be long. As the campaign started on 11.12.13 states: ‘Section 377: There is No Going Back’. Regardless of the Court’s ruling, we walk with pride. As the Delhi High Court judgment reminded us, our rights are inalienably ours – they Court did not confer them on us, it cannot take them away.

Tamil translation of the above is here.

More on this, written prior to the news from Supreme Court

Review Petition Process explained, by Mayur Suresh
Reviewing Our Options by Vikram in English and Tamil

The Supreme Court dismissal statement is here.