Words are Magic Things

by Surabhi Shukla͓[1]

“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.