Editor's Note: A nation’s legal system is integral to how its citizens look upon issues that concern the country in general and their individual lives in particular. Despite having the world’s longest Constitution — not to mention, one that has gone through numerous amendments and the many directives by the Supreme Court that have secured the stature of de facto law, the Indian law books have struggled to evolve at a pace commensurate with the rapid changes society has undergone. As the load of being archaic becomes heavier on our law system, Firstpost introduces a 10-part series titled 'Letter of the Law' to push forward the debate on legal practices and the law itself. The series will explore a variety of aspects pertaining to Indian law through opinion and analyses.
Transgender people in the sub-continental region have had a tumultuous history. From deification to damnation, they have been revered and feared by people who understood little about them. Also, to call the people who do not identify with the gender binary transgender in India is another set of problematics altogether. Like various other countries in the global south, the Indian hijra is a unique identity found primarily in the sub-continental area. Within the hijra traditions, there are several identities, spreading across the different colours and sub-cultures of India.
10 UNDP report of Transgender Issues noted that “[i]n India, people with a wide range of transgender-related identities, cultures, or experiences exist - including Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv-Shakthis […]. Often these people have been part of the broader culture and treated with great respect, at least in the past, although some are still accorded particular respect even in the present”.
On the 15 April, 2014, the Supreme Court of India made judicial history in India, and perhaps did something that many courts of developed countries have not been able to do till date – it legalised the presence of transgender people in India, and allowed the legal creation of a “third gender” category through the National Legal Services Authority versus Union of India, nicknamed the Nalsa case. Thus, for the Supreme Court of India to embark on a journey of defining gender, transgender and the third gender in the Indian context was nothing short of a Brobdingnagian endeavour. It gave a fairly expansive definition of transgender, contextualising it to the Indian situation. More importantly, the decision went into enumerating the various rights without which a person cannot be said to be exercising their citizenship entirely.
However, the Court did not enter into any discussion on one of the biggest proverbial thorns in the side for queer rights movements in India - Section 377 of the Indian Penal Code – a section which criminalises non-procreative sexually acts, but is almost exclusively used to harass queer men, transgender women and hijras. Previously, the apex court had upheld this section in Suresh Kumar Kaushal versus Naz Foundation and Others, stating that any legislative change to be made should be done by the Parliament. This educated silence on the part of the apex court in the NALSA case has led to a new type of precarity for transgender people in India.
How does one exercise equality as a citizen? Is having the right to political participation and the right to put down your gender as you want in the national census enough? While it is a step in the right direction, to be able to identify as transgender or a member of the third gender does not make the people involved less vulnerable to abuse under Section 377 of the Indian Penal Code. The specter of Section 377 is something which has its roots in the colonial biopolitics of the British Empire. Thus, almost every colony was subject to it in some form or the other. While Great Britain has moved on when it comes to decriminalizing non-procreative sexual conduct, the former colonies still find it difficult to do so.
When the Naz case was initially filed, it was filed for the entire queer community but from the perspective of health issues, specifically HIV, and how it affected the MSM, transgender and hijra communities in India because of them being forced to carry on with their lives in a clandestine manner. In the meantime, in 2012, the NALSA case was filed to get transgender people the socio-legal space they have been denied for centuries as equal citizens and to ask for the recognition of the third gender category.
The Transgender bill, which was tabled in the Lok Sabha in 2016, and is yet to become a statute, watered down the judgment of the apex court. While it does lay the groundwork for exploring variations of gender and strengthening affirmative action and general protection towards transgender people, it overlaps in scope for several crimes that are already punishable under the Indian Penal Code. Also, while it enumerates the right to reside in a household, it does not consider the right to marry or the right to family within the Act – rather it focuses on protective mechanisms. This studied omission also stops the contradictions of the apex court’s decision of allowing all rights including the right to marry and the right to family with Section 377 of the Indian Penal Code.