Most judgments these days start with admonishments or obsessive observations. Now, for the first time, a judgment starts with a homily and a plea for the understanding and acceptance of a much-reviled community; a community so old that a parable about them is embedded in the Ramayana – not quoted properly here though. But on a hot April day this year, Justice KS Radhakrishnan and Justice AK Sikri created history when they pleaded with Indian society to embrace “different gender identities and expressions”.
Not only that, they also broke new territory and gave legal recognition to a gender identity that was neither male nor female and recognised in ancient India as “Tritiya Panthi” (the Third Set). The phrase, strangely, is already in common usage in police FIRs, in metropolitan magistrate courts and in much of common law in India. It was our colonial heritage that had erected huge obstacles to such recognition in most official documents such as passports, ID cards for basic citizens’ entitlements such as ration cards, driving licences, bank pass-books, and sundry other daily items that marked out the binary gender paradigm we became stuck in during our alleged “modernisation”.
Called the NALSA judgment for short, the case was filed by the National Legal Services Authority, constituted under the Legal Services Authority Act of 1997, to provide free legal services to the weaker marginalised sections of society. It was filed under Writ petition No 400 of 2012. A whole slew of hijra and transgender community based organisations joined together to fight this historic case that is now already being studied and quoted all over Asia.
Divided they win
Interestingly, for the first time, NALSA argued that every hijra or transgender, “had a legal right to decide their sexual orientation and to espouse and determine their identity”. Yet, the judges did not seem to strike down the Section that criminalised them: Section 377 of the IPC. This hot potato was left alone after Justice Singhvi’s regressive judgment on December 11, 2013. In fact, the good judges, towards the end of Page 96, loudly lamented its “misuse” and “abuse… to arrest and prosecute TG under Section 377 merely on suspicion”(Page 96). Somewhere in the victory, by prioritising gender identity, the judges have desexualised the transgender community. They did not say that transgenders DID practise anal and oral sex and hence, were liable legally to be prosecuted under this Section. For his part, Justice Singhvi had said there had been “hardly more than 200 prosecutions over the last century” before dismissing the whole LGBT community as a “minuscule minority”.
Now here was, wonder of wonders, a smaller subset of LGBT, transgender and hijras, being not just recognised but found worthy of constitutional safeguards and even proffered affirmative action through reservations because of a historical marginalisation during the British Raj. It seemed like whole communities of male-born sexual minorities looking absolutely normative in a heterosexually-patterned paradigm had slipped through the interstices during an incredibly progressive judgment. And yet, there it was in black and white as one read the amazing history of the transgendered through Indian history — this is possibly the first time the Supreme Court has taken up matters of varied-gendered people.
Of the ‘lesser sex’ and the ones in between
I remember the first meeting chaired by Justice Altamas Kabir and organised by NALSA under the aegis of the UNDP in Delhi, how scores of lawyers were horrified that hijras were born functionally male but had “chosen the other gender”. One Delhi-based lawyer got up and stated in genuine alarm that he didn’t understand why “they chose the lesser sex of being women when they were born men”. To which a hijra asked, “What makes you think men are superior?” The myths shattered that day were many, for the mainstream legal fraternity was slowly learning that there were more than seven genders between the rigidly male and female-born humans (see the accompanying flow diagram for an explanation of medical categories). It required several prominent hijra/transgender activists to break the hard binary that is so stubbornly fixed in the contemporary Indian mind.
The NALSA judgment has a four-page definition of a population as diverse and plural as India, and mentions hijras, eunuchs, Aravanis and Tirunangis, kothis, Jogtas and Jogappas, Shiv Shaktis and Kinnars. Each has a special niche and is unique in its cultural context and each is very much a part of the huge umbrella of sexual minorities that have existed in India for centuries before the arrival of the British. That cultural anthropologists knew about them seemed not to have dawned on the heteronormative populace which renders them invisible despite the fact that they are so visible in our urban and rural landscape. If such is the case with a reviled social construct, how much more bitter is the homophobia for a heteronormative-looking man who says he desires the same sex? Perhaps that is why transphobia is a bigger problem within the LGBT community. By directing the revilement away from themselves, male homosexuals have been able to clothe themselves with transphobia and have thus diverted attention away from themselves.
The way forward
To ensure that the political class does not rest on the laurels of this judgment, the two judges have demanded action within three months and that the constituted Experts Committee formed by the government make an in-depth study of the problems of hijra and transgenders and suggest measures to ameliorate their problems. They also have to submit recommendations based on the judgment. It is to be seen if the next government will have the courage to take the world’s most stunning pronouncement on transgender rights forward.
Much could be said on how the two judges have again brought in not just the concept of “Constitutional Morality” (Articles 14,15,16, 19 and 21) over the standard arguments of religious and public morality, but have quoted international UN covenants on human rights (Universal Declaration of Human Rights of 1948) and have even referred to the historic Yogyakarta Principles where Sexual Orientation and Gender Identity (SOGI) were also brought under the ambit of human rights. As a snub to Justice Singhvi, the two judges have extensively quoted from foreign judgments (He had sarcastically said the Delhi High Court judgment was too overloaded with references to foreign judgments as if that coloured our Indian heritage of judicial reform). Most of these are from Australian judgments, which is part of the Commonwealth. There is even a judgment from the Malaysian courts in Kuala Lumpur where the transgender’s right to an ID card after sex change operations has been allowed.
The judgment itself has now become a Golden Rulebook on transgender rights and is bound to be a watershed in the LGBT movement for the recognition of SOGI rights as legal tender in India and other Asian countries. However, the movement forward will come only when the Rubicon of the sodomy laws is crossed and it is read down in statute books. Till then, the general distrust of mainstream society and the fear of persecution, prosecution, extortion, blackmail and general harassment by the police and state authorities will keep the LGBT movement on its toes.
The NALSA judgment has brought relief to one segment of the LGBT. By no means are the others going back into the closet. Instead, everyone is waiting with bated breath for the hearing of the Curative Petition — and hoping for the best!
Ashok Row Kavi is an activist and chair of the Humsafar Trust, a homosexual community-based organisation. He is based in Mumbai.