The Indian 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 (a traditional Indian male-to-female trans group) 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.  (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 India’s 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 bench).
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 . Prohibition of discrimination on the ground of ‘sex’ specified in these Articles is read to include a prohibition on discrimination based on gender identity . The court compares gender identity to the paradigm ground in Indian discrimination law—caste—by acknowledging that transpersons are treated like ‘untouchables’ . It also sees the parallels between the protection of disability and that of gender identity . Noticing such continuity between different forms of discrimination is rare for Indian 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 . 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 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 Parliament paralysed 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 Indian 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 . 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 Indian 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 expansive 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.
Tarun Khaitan is the Hackney Fellow in Law at Wadham College and Associate Professor at the Faculty of Law, University of Oxford.
(Suggested citation: T. Khaitan, ‘NALSA v Union of India: What Courts Say, What Courts Do’ U.K. Const. L. Blog (24th April 2014) (available at: http://ukconstitutionallaw.org)).