NALSA v Union of India: What Courts Say, What Courts Do

The Supreme Court has recently delivered an
important judgment in the case of National
Legal Services Authority v Union of India
(NALSA). A two-judge bench comprising
Justices Radhakrishnan and Sikri declared, among other things, that hijras must be treated as a ‘third
gender’ for all legal purposes, and that transpersons in general have the right
to decide whether they want to be identified as male, female or belonging to
the third gender. [129] (Given the specific declaration that hijras belong to
the third gender, it is not clear whether the general right to choose one’s
gender is available to hijras too, or only other transpersons.) The Court also
issued a number of other directions to the state—remarkable in their breadth
and, perhaps for that reason, vulnerable to remaining unimplemented.
In some respects, this judgement is in sharp
contrast to the one delivered by another bench of the same Court in December
2013. In Koushal
v Union of India
, two other judges had overturned
a Delhi High Court judgment declaring the criminalisation of sodomy to be
unconstitutional. In effect, Koushal recriminalized the LGBT minority
after a brief and hard-won respite from the Delhi High Court (the Koushal
ruling still stands and is not affected by NALSA, although the Supreme
Court has agreed to hear a ‘curative petition’ seeking its review by a larger
Unlike Koushal’s complete failure to
appreciate the counter-majoritian judicial function in a constitutional
democracy, the NALSA judges are acutely aware of their special duty to
protect a ‘marginalised section of the society’ which is ‘very small in number’
[118, 82]. Contrary to Koushal’s rejection of comparative law, NALSA
is replete with lengthy references to international and foreign judgments and
legislation, surprisingly including material not only from the usual Western
liberal democracies but also India’s less liberal and less democratic neighbours
such as Pakistan and Nepal [21-42, 70-73].
Unlike Koushal’s miserliness in
understanding the scope of fundamental rights, NALSA adopts expansive
interpretations of fundamental rights. The right to equality in Article 14 is
read to include positive obligations (such as the duty to take affirmative
action and make reasonable accommodation) [54, 88]. The right against
discrimination in Articles 15 and 16 is read to prohibit not only direct but
also indirect discrimination [59]. Prohibition of discrimination on the ground
of ‘sex’ specified in these Articles is read to include a prohibition on
discrimination based on gender identity [59]. The court compares gender
identity to the paradigm ground in Indian discrimination law—caste—by
acknowledging that transpersons are treated like ‘untouchables’ [1]. It also
sees the parallels between the protection of disability and that of gender
identity [112]. Noticing such continuity between different forms of discrimination is rare for our courts.
The Court especially notes Articles 15(4) and
16(4), which allow the state to make special provisions for the advancement of
socially and educationally backward classes. The judgment doesn’t fully explain
how this constitutional permission can lead to the conclusion that the state
‘is bound to take some affirmative action for their advancement so that
the injustice done to them for centuries could be remedied’ [60, emphasis
supplied]. One possibility is that the Court is relying on its earlier premise
that the right to equality under Article 14 imposes positive as well as
negative obligations. Alternatively, the Court may be implying that once the
state relies on the constitutional permission to take affirmative action for some
backward classes, it must do so for all of them. It would have been
better if the Court had clarified the precise reasoning behind the directions
to the state to extend affirmative action benefits to transpersons—effectively
a recognition of a right to affirmative action [60, 129].
The right to freedom of expression in Article 19 is
read expansively to include the freedom to express oneself through dress,
words, action, behaviour etc [61]. Thus, gender-non-conforming dress and
behaviour are constitutionally protected. The right to life and personal
liberty under article 21 is declared to rest upon notions of positive freedom,
personal autonomy, self-determination and human dignity and not simply freedom
from unjustified state interference [67, 69, 99, 101, 102]. Thus, the state has
a duty to enable transpersons to be free in the positive as well as the
negative sense.
The remedies that the court grants are also very
interesting. Three directives have already been mentioned: that hijras are now recognised
as the third sex, that transpersons have the right to choose between being
male, female or belonging to the third gender, and that transpersons are to be
given affirmative action benefits, since they are a ‘backward class’. The Court
goes on to give a slew of other directions, including some very specific orders
(direction to provide specific toilets and HIV care centres for transpersons),
some rather broad ones (direction to provide them with medical care in all
hospitals, to frame various social welfare schemes for their betterment, and to
take steps to create public awareness to ensure their social inclusion) and
some wonderfully imprecise ones (direction to seriously address problems being
faced by them and to take measures to ensure a respectful place for them in
social and cultural life). To top it all, the Court notes that the government
has already constituted an ‘Expert Committee’ to study the problems faced by
the transpersons. Without specifically mentioning what its findings or
recommendations actually are (the Committee submitted its report in January 2014), the Court orders the Executive to implement its
recommendations within six months.
It is only when we examine the remedies the Court
grants in NALSA that we can see a common understanding of the judicial
function with the Koushal bench. I had argued in a previous post that the Koushal Court wasn’t being deferential to Parliament
in refusing to hold the colonial anti-sodomy provision unconstitutional. On the
contrary, the judgment showed a characteristic lack of respect for separation
of powers. The NALSA judges are much more benign and progressive, with a
much better understanding of the counter-majoritarian judicial role than the Koushal
judges. But when it comes to its attitude to the legislature, they match Koushal’s
contempt for Parliament with cold indifference.
Its champions as well as its critics agree that the
Indian Supreme Court does not generally waste much time worrying about
separation of powers. It makes drastic and frequent forays into the legislative
domain with little hesitation. This is broadly true, but the manner in which
these incursions are made is interesting and NALSA offers a good
illustration. In its social rights jurisprudence, one can see two very different
types of remedies provided by the Court. On the one hand, one sees judicial
legislation, usually in the form of an endorsement of a policy or a set of
recommendations framed by the Executive, like the recommendations of the Expert
Committee in this case. These recommendations are often precise and detailed,
and therefore legislative in character. Frequently the government lawyer would
have informed the Court of the Executive’s support for these recommendations.
What the Court effectively does is collude with the Executive to stamp
consultation documents and ad hoc committee reports with constitutional
authority, entirely bypassing Parliament. In fact, faced with an un-obliging Parliamentparalysed by obstructionist politics, governments often find it easier to
legislate through the courts than through Parliament. Even in Koushal,
the government had—rather unusually—admitted before the Court that the
criminalisation of sodomy was unconstitutional. It would have very much liked
the Court to affirm the Delhi High Court order, one that it had chosen not to
appeal. Ministers publicly endorsed gay rights only after the court refused to
play ball, but the Executive response was to seek judicial review rather than
go to Parliament. The courts are no doubt legislating. But on the whole, the
initiative remains with the Executive. Courts have simply become a parallel,
albeit less predictable, forum for endorsing legislative proposals that still
originate from the Executive.
On the other hand, there are orders that are so
expansive and vague that it is impossible to hold anyone to account for failing
to implement them. The Court must know that its overbroad directive to take
measures to help transpersons is capable of neither implementation nor breach. However,
the Court is not simply interestes in whether its vague orders are implemented—it
also cares about participating actively in and shaping the political discourse
on various issue. The Indian SC is an explicitly political institution which
does not pretend to be otherwise. Even in NALSA, the judges are very
clear that law must transform social realities [119]. The Koushal judges
were very keen to ensure that the law did not disturb the social status quo.
Both positions, although diametrically opposed, are self-consciously political.
Of course, all courts are political. The difference in India is that judges are
not coy about acknowledging this reality. Whether this honestly is a virtue—or
whether at least the judicial pretence of functioning outside politics nonetheless
imposes useful restraints on courts—is a matter for another day.

The reason that our courts spend time penning these
unimplementable orders is that they know it is not just what they do
that matters, but also what they say. As prominent political players
whose words carry a lot of weight in the public discourse, these expansive and
vague directions are not simply pious platitudes. They will be relied upon by
activists, reported by the media, debated by politicians and as soft-law
instruments lay the foundations for future judicial and legislative
development. Like its legislative role, the Indian Supreme Court has adopted a
very broad understanding of its expressive function. Debates on separation of powers need to consider
the proper limits not only of what courts do, but also what they say.
Written by
Tarunabh Khaitan
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