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Transformative Constitutionalism and Transgender Rights in India

By: Muskan Dang* |

“It is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression.”

As a post-colonial country, India has come a long way, especially in terms of its judicial system. With the passing time, the judges and advocates have not only sophisticated their knowledge and reasoning but have also started empathizing with the people; which in turn has helped in doing away with obsolete, exploitative and regressive practices. The string of judgments delivered in the past year have shown a common thread of “Principle of Transformative Constitutionalism”, highlighting the pragmatic role the Apex Court has started playing. According to Klare, Transformative Constitutionalism is a long-term project of Constitutional enactment, interpretation and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic participatory and egalitarian direction.

The key takeaways from this definition are-

1) Recognition of transformative constitutionalism as a continuous process. Klare has acknowledged the fact that the principle is not a one-day transformation but is spread over a long period;

2) Transformative constitutionalism is not just confined to the judiciary but also involves all the three organs of the government at their own levels;

3) The end goal of this process is always aimed towards establishing a more democratic society with egalitarian principles as its foundation.

Even though this principle might sound pristine, it has always found its unobtrusive mention qua most of the revolutionary cases. Transformative constitutionalism incorporates the notion of judicial populism as against elitist despotism. The transformative potential in the Indian Constitution is a conscious ‘attempt to reverse the socializing of prejudice, discrimination, and power hegemony in a disjointed society’. Thus, the third tier of the state, the judiciary, attempts to rebuild the society deploying the weapon of transformative constitutionalism. Judiciary is the core element of transformative constitutionalism since the concept places faith in the law as an instrument of social and political change, and in that, the courts act as catalyst of the transformation as they are empowered to interpret and apply the law.

Elements and application

Having a dark past marked by despotism, caste bias and obscure societal notions, the country soon got a fresh start in its people’s voice via the Indian Constitution. The Constitution had from the beginning laid down certain fundamental principles that were transformative in character. One of the key instruments that helps in the realization of this principle is the concept of Constitutional Morality. Defining Constitutional Morality, the then Chief Justice Dipak Misra had laid down in Navtej Singh Johar v. UOI that, “The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism”. It can be deduced from the above statement that constitutional morality helps the justice system in giving a liberal interpretation to the law of the land, thus helping it in keeping pace with the changing times. Tools like public interest litigation, epistolary jurisdiction, judicial activism etc. have time and again been used to look into the needs of the common man. Bandhua Mukti Morcha v. UOI is one such case in which through the help of a PIL the exploitative practice of child labour was looked into and accordingly steps were taken to curb it.

We can also spot out the crucial role of NGOs, interest groups or other vigilant citizens in the promotion of Transformative Constitutionalism. Some recent important landmark judgments highlighting the above are- NALSA v. UOI, Young Lawyers Association v. State of Kerala and K. Puttaswamy v. UOI amongst others. In the first case the court conferred a separate legal identity to the transgender community hence doing away with the systematic oppression and discrimination that this community had to face due to the unfortunate colonial bequest. In the second case the Supreme Court held that religion could not be used as a veil to promote discriminatory practices and allowed the entry of women in the Sabarimala temple. The last case is very important as it gives a proper definition of right to privacy as a part of right to life under Article 21 of the Indian Constitution thereby restricting the use of Aadhar as a database for storing everyone’s personal details. The court had held in all the three judgments that social morality had to be distinguished from constitutional morality and the latter prevailed over the former with respect to interpretation of the Constitution.

Transgender rights laws in India

One of the biggest leaps for India towards transformative constitutionalism was the long due recognition of right to self-identification of the transgender community. The journey for transgender rights reached a milestone in 2014 when the apex court gave the historical judgement wherein legal gender identity was bestowed on this community recognizing them as ‘Third Gender’. While passing the long-awaited judgement, Justice K S Radhakrishnan and Justice A K Sikri observed how because of society’s orthodox mindset and unwillingness to embrace different gender identities, transgender community was sidelined and treated as untouchables since the very beginning. Further, the major highlight of the judgement was the slew of directions given to central and state governments to take active measures to extend various welfare and social security schemes to the community including treating them as socially and educationally backward classes in order to extend all kinds of reservation benefits. Better said than done, it had been nearly 6 years since the passing of this judgement and hardly any steps have been taken towards improvement of the conditions of this community.

Legislative action to implement this judgment began around 2016 but it was not until August 2019 that the process gained momentum. A legislation namely Transgender Persons (Protection of Rights) Act, 2019, was finally passed on 5th December but to the community’s dismay, it is a glove that ill fits the hand it was tailored for. Some of the major flaws of this law are-


Firstly, as opposed to the promise of self-identification of legal gender recognition, Chapter III of the law mandates prior medical and judicial approval before an identity certificate is accorded to a person. Despite the fact that it gave arbitrary power to a government official to evaluate if a person ‘qualified’ for this category, basing their recognition on a third party is derogatory to their fundamental right of self-identification.

Secondly, although the law provides for a recognition outside the gender binary, it ignores other gender identities included in the transgender spectrum like the gender queer, intersex etc. For instance- the law does not allow a person to identify as a male or female unless such person has undergone sex reassignment surgery. In fact, this provision is in direct violation of right to equality under Article 14 and right to life and personal liberty under Article 21 of the Indian Constitution.

No Reservation

Another major drawback of the law was that it does not provide for reservation in education and employment as mandated in NALSA judgment. The SC had clearly specified that the community ought to be treated as socially and economically backward class of citizens under Article15(4) and 16(4) of the Indian Constitution due to the age-old discriminatory treatment meted out to them. The vague provisions for institution of welfare schemes to protect the rights and interests of the people have come as a disappointment to the community.

Discrimination in applicability of law

The bill was largely criticised as being insensitive in treating the community as ‘second grade citizens’. The main issue being that it did not extend equal protection of the law to the community in the matter of sexual offences as is enumerated in Article 14. The law was attacked for keeping the punishment in case of sexual violence against trans-women from six months to two years whereas in the rape case of non-transgender women the punishment may extend from 10 years to life imprisonment.

Place of Residence

Section 12 of the act restricts the right of residence of trans people by seemingly pushing them to live with either their parents or in rehabilitation centers. This provision directly attacks the fact that transgenders generally live in a community which is like an alternate family structure and thus is violative of their right to life and dignity under Article 21.

Lessons from the past to figure a way ahead?

While going through the history of the Transgender rights in India, it is interesting to point out that a private member’s bill regarding on this subject was dropped in the parliament after the government introduced a similar bill in 2016. The most ironical part of this move was that both the bills actually had very little in common except their names. The 2014 bill is in fact more sensitive and inclusive towards the identification and respect for individual autonomy of the community and thus resonates with requirements of the people. Some important highlights of the bill included- a broader scope to identify as men, women or third gender independent of any surgery, a more non-discriminatory and inclusive approach towards legal measures by directing for necessary amendments in the current penal provisions so as to include protection of Transgender people, ensuring efforts for rehabilitation of the community for effective participation and inclusion in the society and taking steps towards empowerment of the community including providing reservation to the community in education and employment in consonance with the NALSA judgement.

A first-of-its-kind initiative to meet the needs of the community was taken by the Tamil Nadu government with the formation of Tansgender Welfare Board on 15th April, 2008. With its unique and inclusive constitution which included official as well as non-official members from the community, it soon became a model state introducing various welfare schemes including free housing policy, monthly pension for transgenders over the age of 40 years and identity cards for the members of the community. With a successful run for the initial 3-4 years, apathy gradually set in and with the change in governments the implementation and inconsistencies became justified as clerical and human errors.

A lot of states have also taken independent actions to extend rights to the transgender community including upholding the right to marry, separate wards in hospitals, creating employment opportunities like Madras Home Guards after the passing of the NALSA judgement. Maybe, instead of starting afresh the Indian government should appreciate and adopt these practices at the national level to further lay a strong base for future legislations.


Rule of Law must run closely to the Rule of Life

The Indian judicial system through its activism and acceptance of social action litigation has never hesitated in giving bold judgments towards the advancement of the society. The changing position of Transgender Community in India is a perfect example of the uncanonical progress in the field of gender justice. The historic judgements of NALSA v. UOI and Navtej Johar to name a few have become the torch bearers for guiding the country towards having a more empowering and gender-neutral approach. However, a battle half won does not end the war. Even though the courts are delivering such revolutionary judgments for reshaping the social structure and position of underprivileged sections of the society, all of this would be no good if the same is not implemented. It is important to understand that only one organ of the governing system of the country cannot bring the desired results. A delay in the implementation of a comprehensive act regarding the Transgender rights clearly shows a lack of communication and coordination between the organs of the government. Another key issue that needs to addressed is the lack of sensitization for the community in the government structures and amongst the public at large. The implementation of all schemes would fail if the society is not made empathetic towards the plight of the transgender community. Hence, a collective functioning of the government and the people will go a long way in building a more inclusive society for the transgenders to live in.


* The author is a student at Army Institute of Law, Mohli.


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