As Trans Exclusionary Radical Feminists (TERF) like J.K. Rowling continue express their misplaced apprehensions about transgender women being considered as women this case, Arun Kumar & Others vs. The Inspector General of Registration & Others ( W.P. (MD) NO. 4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019) from the Madurai Bench of Madras High Court assumes great significance.
For the past ten days, since Tuesday, April 18, arguments in the Constitution Bench of the Supreme Court in the Marriage Equality Case, Supriyo a.k.a Supriya Chakraborty & Abhay Dang v. Union of India thr. Its Secretary, Ministry of Law and Justice & other connected cases (2023) take on surreal dimensions with a constitutional functionary like the Solicitor General of India (SGI) likening same sex to sodomy and even incest, this refreshing view taken by a High Court four years back is worth a recall.
Justice G.R. Swaminathan, Madurai Bench of the Chennai High Court, in 2019, allowed the registration of a marriage between a man and a transgender woman in a truly a pioneering judgement.
Petitioner 1, Arunkumar got married to Petitioner 2, Sreeja, a transwoman, at a temple in Tuticorin, as per rites and customs of Hinduism. When they applied for the registration of their marriage, the Joint Registrar, Tuticorin refused to register the same leading to the Petitioners challenging decision before the District Registrar of Tuticorin. The District Registrar confirmed the decision of the Joint Registrar. This decision was challenged before the Madras High Court.
Although the Madras HC judgement is silent on marriage between two people of the same sex, the fact that the court allowed for the registration of a marriage between a man and a transgender woman is truly a pioneering judgement which needs to be revisited.
While the petitioners argued on the basis of fundamental rights, the state-Respondents took the stance that the word ‘bride’ does not include transgender women.
What did the Court say?
The court while holding that transgender woman comes under the definition of the word ‘bride’, stated as follows:
“By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”
The court first recounted how the Supreme Court in the case of NALSA vs Union of India recounted the existence of transgenders in the Hindu epics such as Mahabharata. In NALSA vs Union of India, the Supreme Court stated that people have the right to identify their gender as male, female or transgender and discrimination based on gender is in violation of Article 15. This is a landmark decision because it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender persons in India. The judgement also directed Central and State governments to take proactive action in securing transgender persons’ rights.
While holding that the state cannot deny the identification a person has given to their gender, the Madras HC stated as follows:
“In the case on hand, the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein.”
An interesting feature of this judgement is that the court directly used the principle of interpretation that allows to read a word according to the situation and the times of the world. This is a progressive reading of the statute allowing for the law to evolve, according to the world. The court said:
“As noted in Justice G.P.Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present day conditions. A statute must be interpreted in the light of the legal system as it exists today.”
The Court also noted that the Hindu Marriage Act is a personal law of the Hindus and, since the right of transgender persons to marry has been upheld by the Supreme Court, they cannot be excluded from the purview of the Act. The Court emphasized that both civil and sacramental marriages are valid under the Act. In this case, the petitioners’ marriage was solemnized in a temple, and the Court held that their fundamental right under Article 25 was violated due to the refusal to register their marriage.
The court state that action of the registration officials violated two rights apart from Article 25, one is the Article 19(1)(a) of the petitioner by stopping her from expressing her gender identity. Second is the violation of Article 21, by denying her gender identity- a violation her personal autonomy and dignity- both rights recognised by the Supreme Court in the landmark judgement of Navtej Singh Johar vs. Union of India.
The Madras High Court’s landmark judgment in Arun Kumar & Others v. Inspector General of Registration & Others is a significant step towards recognizing and upholding the rights of transgender persons in India. By recognizing their right to marry and practice their religion under Article 25 of the Constitution of India, the Court has paved the way for greater inclusivity and equality. The judgment serves as a reminder that personal laws must be interpreted and applied in a manner that ensures that the rights of all individuals, regardless of gender or sexuality, are protected.
Today, April 27 is the eighth day of arguments when arguments made by the union government assume a backward shift in marriage equality jurisprudence. Ironically, while the Supreme Court of India constituted a Constitution Bench (CB) to hear this matter that it was seized off only in November 2022, a host of other constitutional challenges lie pending before it awaiting adjudication.
- Ironically, while as many as nine petitions (details below) had already agitated the issue and obtained some reliefs in respective high courts, the SCI transferred all these admitted and pending cases to itself in the CB hearing! For example, a gay couple, Nikesh and Sonu, filed a petition seeking legal recognition of their marriage in the Kerala High Court on January 24,020. The Kerala High Court Justice Anu Sivaraman admitted the petition on January 27, 2020. Four queer people, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G. Oorvas, filed a petition seeking legal recognition of marriage in the Delhi High Court on September 8, 2020. A two-judge Bench of Delhi High Court, consisting of Chief Justice of Delhi High Court D.N. Patel and Justice Prateek Jalan, admitted the petition on 14 September 2020. All these legal challenges pre-date the current one initiated by a gay couple, Supriya Chakraborty and Abhay Dang, who filed a petition seeking legal recognition of their marriage in the Supreme Court of India on November 14, 2022. Thereafter, a two-judge Bench of the Supreme Court, consisting of Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli, admitted the petition along with another gay couple, Parth Phiroze Mehrotra and Uday Raj Anand, on November 25, 2022. Thereafter nine petitions were transferred to itself, eight from the Delhi High Court and one from the Kerala High Court, in preparation for the CB hearing.
Thereafter, on March 15, 2022, the Supreme Court admitted 20 connected petitions filed by 52 queer people, including 17 queer couples. Ranged against these individuals is the powerful Indian state, its proxy organisations like the National Commission for Protection of Child Rights and organisations of religious denominations like the Jamiat-e-Ulema-Hind and the Telangana Markazi Shia Ulema Council.
The Delhi Commission for Protection of Child Rights, a statutory body of the Aam Aadmi Party-led Delhi Government, has intervened to support extending the right to marry and adopt for queer people on grounds that a) Multiple studies have shown that same-sex parents are not any different from opposite-sex parents; b) Discrimination against queer people would affect the psychological well-being of queer children. Additionally, the DCPCR recommended guidelines to ensure the well-being of children in same-sex adoptions. (Source legal interventions and Wikipedia)
(The author is a legal researcher with the organisation)