Ms. Stuti Bhargava & Ms. Pallavi Diwakar
The authors in this paper have attempted to give an overview of the laws that govern homosexuals and transgenders. The primary focus of the article has been on the judgment of the Madras High Court (Arun Kumar and Anr. v. The Inspector General of Registration) where the court went to hold the marriage between a man and a transgender woman is valid. The judgment is one of a kind and has raised eyebrows with its radical line of reasoning. The attempt has also been to explore the jurisprudence behind the stance of the judiciary and pin-point the lacunae that still persist in the laws pertaining to the subject at large.
Introduction to the Subject
To ascertain whether a country is progressive, liberal and on the path to salvation, its laws must be looked into. India is known for its culture, the perfect blend of modernity and tradition that appears to add uniqueness to the Indian subcontinent. While the framers of our laws were constructing a Uniform Code of laws for India, they quite conveniently ignored or rather disregarded the past and culture of India and made laws in consonance with the Christian Catholic order followed by the Britishers. While we acknowledge the fact that our laws are a plagiarised version of that of the Britishers, it is important to note that several of the norms of the Catholic order go against our beliefs and traditions. The emphasis of this article is largely going to be on the laws pertaining to transgenders and homosexuals and the failure of such laws to effectively deal with issues concerned.
The Madras High Court Judgment: – A Ray of Hope
A recent judgement by the Madras High Court raised eyebrows with the plethora of reasons it assigned behind holding that a marriage between a man and a transgender is a valid marriage under Section 5 of the Hindu Marriage Act, 1955. The judgment encompassed a much needed debate on the meaning of the word ‘bride’. The judiciary finally came to the conclusion that a transwoman should also fall within the meaning of the word bride which largely and popularly connotes a woman. The discussion that preceded this final inference imported rules of interpretation to give meaning to the word bride. The judges were of the opinion that the word ‘bride’ cannot have a static and immutable meaning. It was opined, that the court is free to apply the present day statute to the present day conditions which would mean that the interpretation would be one that would correspond with the existing legal system. Citing Article 16 of the Universal Declaration of Human Rights, the Judiciary inferred that every individual has the right to marry and find a family. If that is the law, it naturally follows that even a transgender given that the term bride gender encompasses within its ambit a transwoman, has the right to marry and find a family. Any obstacle in the path of such an individual would mean violation of the individual’s human rights.
The judgment discussed at length the idea of gender identity and why protection must be offered to transgenders under Article 19 and 21 of the Indian Constitution. The judiciary opined that Article 19(1) (a) of the Constitution must protect the right to self- determination of gender. The self-autonomy that comes with the right to privacy guaranteed alongwith the fundamental right to life and personal liberty cannot be disregarded. Whom an individual decides to marry should be his life decision and not someone else’s. It was opined by Delhi High Court that nothing is more personal and private than the sexual orientation of a person. Shouldn’t the same logic be applicable to marital relations? As far as the transgender’s right to marry is concerned, it has been acknowledged by the judiciary.
The words ‘gender’ and ‘sex’ are words with meanings too different to be the same. While the sex of a person is determined at the time of his birth, the gender is not something that can be determined by anatomical features. Thus, the protection offered by Part III of the Indian Constitution is something that is of utmost importance for the protection of this class of people.
In a way, the judgment gives validity to unnatural sex, as it is popularly, referred to. However, the judgment does not, in so many words (expressly) does that. There is thus a need for the judiciary to be clear in what it wants to say. Before the judgment decriminalizing Section 377of the Indian Penal Code materialized, the judgment that was looked into for answers to questions on sexuality was the NALSA judgment. However, NALSA was largely ambiguous on its stance on such questions.
A Drop in the Ocean: A Recent trend – Recognizing Transgender Rights
This judgment is just an instance of the various trends that have started out in different parts of India. Trends which seek to instil in people the idea that transgenders and homosexuals are as normal an individual as a heterosexual individual. Homosexuality or intersex individuals should not be treated as outcasts. Their sexual orientation or the gender that they relate to is not a contagious disease or disorder. Basic rights such as the right to life and dignity or the right to marry for that matter cannot be taken away from these people. Tamilian movies such as Perunbu and Super Delux are movies which have helped empowered these transgender groups. The Transgenders Persons (Protection of Rights) Bill, 2016 was introduced in the Lok Sabha which has been referred to the standing committee in the same year. Much before this bill was passed, a meeting was organized in the year 2013, by the Ministry of Social Justice and Empowerment, to discuss the issues pertaining to the Transgender community such the social stigma, discrimination and lack of health care they face. The meeting culminated in the constitution of the Expert Committee on the issues relating to ‘Transgender’. Of course, there are a lot of shortcomings and lacunae in the Bill but what should be noted is the acknowledgment of the issues that the transgenders have to face and the underlying sentiment and objective which is to protect the rights of these people. Later in the year 2018, the Transgenders Persons (Protection of Rights) Bill was passed. However, this bill, which was passed with the intent to safeguard the status of the transgenders, does not even define who would account as a transgender. There are, thus a lot of loopholes and lacunae that become clear on a close scrutiny of the Bill.
The social stigma that this class of individuals face and the lack of public health care facilities that these people face has resulted into a lot of health issues that they have had to face in the recent times. The World Health Organization has acknowledged this health threat. According to their assessment, “transgender women are around 49 times more likely to be living with HIV than other adults of reproductive age with an estimated worldwide HIV prevalence of 19%; in some countries the HIV prevalence rate in transgender women is 80 times that of the general adult population.”
In essence, this recent judgment has been a ray of hope. The laws that came into existence after the Britishers settled in India completely disregarded the presence of transgenders. The laws in India created were rather gender specific. An impersonal reading of the offences in the Indian Penal Code would indicate the public-private dichotomy and patriarchal values at their base. There was no scope for protection to the third gender, the popular name for the Transgenders.
Our past has been one which has both witnessed and encouraged same sex relations and transgenders. Our mythological parables, Ramayana and Mahabharata entail various instances of a god turning into a woman to achieve some end. Though our mythological tales and traditional lores have quite efficiently explained and validated the existence of the third gender, this validation has been supported by neuro-scientists like Dr. Ramachandran. In his book, ‘The Tell-Tale brain’, Ramachandran has dealt with this disorder called ‘transsexuality’ that results from a self-identity that one creates in his mind. It can thus be inferred that transsexuality as we have has been mentioned above is not just a product of myth. It exists and should be treated as normally as any other mundane fact of life.
Jurisprudential take on the Subject
What is freedom and who is free? The answer to this question is not straight laced. There are jurists who do not even consider liberty to be of significance in one’s life. Nonetheless, the importance of this question and that of the answer does not lose its value. Liberalists like Thomas Hill Green believe that one is free if he or she is self-directed and autonomous. One is free merely to the degree that one has effectively determined oneself and the shape of one’s life.
The take of the judiciary in the present matter seems to be inspired by the libertarian school of thought. According to the aforementioned school of thought, liberty is an idea that is generally understood to refer to the capacity to be one’s own person, to live one’s life according to the reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces. The right to decide what would one’s sexual orientation in life or who he or she would want to marry forms the most basic part of his or her life. The right to liberty and freedom that our Constitution so fondly advocates would fall flat if rights like these are disregarded. The stance of the Madras High Court, much to the dismay of the critics of liberalism, has been pro liberty this time. The desire to belong and the desire to be loved is something that no right protects. Simply because an individual does not follow convention and merely because he differs from the rest of the population in his choice of a life partner, should he be stripped of his basic human rights? The judiciary has quite profoundly answered this question in its judgment. This step may not be enough, it may prove to be inadequate, but it is the first one which according to the authors makes all the difference.
There is absolutely no doubt about the fact that India has had a rich cultural past with the kind of diversity that is found nowhere in the world. The transgender community has been recognized and accepted by our society since time immemorial. A quick journey down the lane will testify to this fact. Be it our mythological lores or the courts during the Mughal Period, they were always a part of the society until the Britishers came to India. As has been mentioned in the earlier section of the piece, this judgment can be counted as a ray of hope. Although a lot of questions went unanswered in this judgment; questions centred on the rights of transgenders, the judgment has provided a start to the battle that must be fought to reassure these people that their place in the country is secure. How do we plan to do that? That question is what will play an important role in re-shaping our country to make it flexible enough to provide dignity and refuge to every strata and group of the society. Refuge does not connote survival; it signifies a life full of respect and rights.
We pride ourselves on using terms such as liberty, equality and fraternity which are supposed to form the foundation of our Constitution. We have no qualms about boasting that we live in a democracy, the largest democracy in the world. However, do we really understand the meaning of these words that we so frequently and carelessly throw around? The objective of this paper is thus to re-centre our focus on the values that should form the basis of rules and laws and verdicts that no longer give due weightage to these values.
The authors, Ms. Stuti Bhargava and Ms. Pallavi Diwakar are 3rd year students of National Law University, Jodhpur.