The logic of the NALSA judgment is directly contrary to that of Naz – Senior Advocate Raju Ramachandran

Senior Advocate Raju Ramachandran was the arguing counsel in the NALSA case, a recent decision of the Supreme Court upholding the Constitutional and legal rights of transgenders. In this interview with Bar & Bench the senior counsel expounds his views on the judgment especially viewed in the backdrop of another recent judgement of the Supreme Court upholding the constitutional validity of Section 377 of the Indian Penal Code, 1860..Bar & Bench: What were your expectations after the arguments were concluded?.Raju Ramachandran: I must honestly confess that I expected this outcome because the reaction of the Bench during the hearing was very positive. The government also, to their credit, adopted a non adversarial stand..B&B: When the judgment in Naz Foundation case was delivered, were you at any point of time apprehensive that this case could also have a similar result?.RR: No! On the contrary, the day the Naz Foundation judgment was delivered, the thought which struck me was that a very positive judgment would soon be delivered in the Transgender case. Of course, one can never predict the outcome of a case with certainty but any experienced lawyer will have a feel of how a case would ultimately be decided. In fact, the article which I wrote in the Indian Express was born in my mind on the day the judgment in Naz Foundation was delivered. I really thought that I would be writing this article and that this contradiction will be highlighted. It turned out as I expected..B&B: Coming to the judgment, is there not a difference of opinion between the two judges as far as the definition of “transgenders” is concerned? Justice Radhakrishnan’s definition is wider and includes hijaras, enunuchs etc. and also those who face gender identity crisis. However, Justice Sikri says that the judgment is confined to transgenders as understood in the Indian context, that is hijaras, kothis etc. and to those who have undergone Sex Re-Assignment Surgery (SRS)..RR: Justice Sikri only recognises the fact that in India, it largely applies to those whom we call hijaras. It is just that in its practical application, the judgment may affect this smaller category. But the applicability of this judgment would be to the entire class which Justice Radhakrishnan contemplates..B&B: So, essentially, a hijara or enunch is categorised only as a transgender. And a person with a gender identity crisis can go for a gender of his choice irrespective of whether he has performed an SRS or not..RR: That is correct. How this is going to be implemented at a practical level needs to be seen because the court cannot make “micro prescriptions”. It has laid down the broad principles; and it is for the government to carry forward not just the letter but the spirit of the judgment as well. In its implementation, especially in matters pertaining to access to public toilets etc., great sensitivity will have to be shown. But I am sure that with the consciousness and awareness which this judgment has generated, the initial teething problems will soon get resolved..B&B: So you are optimistic?.RR: Absolutely! There is a very significant passage in Justice Sikri’s concurring judgment in which he says that law can create social change. This is one such judgment that would give the lead to society for such a change..B&B: This judgment makes a passing mention of Section 377 but does not touch upon related issues. Could it not be that sexual orientation is many times an implication or outcome of gender identity? If that is the case, how, according to you, can the Naz Foundation verdict and this one be reconciled?.RR: At the time when the NALSA case was argued and the judgment reserved, the judgment in Naz Foundation case had not yet been delivered. The judgment in Naz Foundation case was delivered on December 11 after the judgment in Transgenders case was reserved. The judges have, however, taken judicial notice of the decision [in the Naz Foundation]. They have not commented on that judgment except mentioning it, and rightly so because there was no occasion for the judges to hear any arguments with reference to Naz..I am clearly of the view that the logic of the NALSA judgment is directly contrary to that of the Naz judgment. So, those who are involved in the curative petition in the gay rights case can legitimately take advantage of this judgment to ask for a reconsideration of the gay rights judgment..B&B: In your Indian Express article, you have opined that important Constitutional questions should be decided by a Constitution Bench rather than a Division Bench. Even now, Constitution Benches are constituted for important matters..RR: The strength of the Supreme Court is 31. The Court does need to sit in Division Benches to decide the general run of cases. But the Supreme Court is not just a national court of appeal but also a Constitutional court. Therefore, I firmly believe that there must be a permanent Constitution Bench in session. There can even be two. That will still leave 21 judges free for other work..Today, Constitution Benches are created from time to time; there is an “ad hocism” about it. The time has come to have a permanent Constitution Bench whose composition should not change for at least six months. That way, the judges on that Bench will have the time to reflect on the issues before them. The composition can change from time to time so that all the judges get an opportunity to be on the Constitution Bench. But when they are made a part of the Constitution Bench, they must have the time, the leisure and the mindspace to devote themselves completely to Constitutional adjudication..B&B: Could you recount your experience working on this case? Who were the other lawyers involved in the case?.RR: For someone like me, who has been associated with the legal aid movement from the inception of my career, it was a great and challenging opportunity to do this case. I got invaluable assistance from my instructing advocate Anitha Shenoy, her juniors and my juniors. I also had the full support of the National Legal Services Authority (NALSA) whose secretary Asha Menon is herself a judicial officer on deputation. I am also happy that the NALSA, which is a statutory body, took its role seriously and initiated this litigation. Normally, Public Interest Litigation in the human rights field is initiated by NGOs or public spirited citizens. But in this case, a statutory body sought to vindicate human rights, which is praiseworthy. Counsel for the other petitioners and interveners made great contributions too..B&B: Coming back to the judgment, there is a stark difference between the Naz and the NALSA judgments when it comes to the consideration of international principles? Won’t such severe contradictions ultimately reflect negatively on the Supreme Court?.RR: That is the point which I have made in my article [in the Indian Express]. A Constitutional court should have a certain catholicity of outlook and should be willing to draw from different sources for the sake of justice. There is no question of national pride involved here. If international principles are relevant, either because India is expected to give effect to international treaties and obligations or because they represent internationally acceptable norms, we should not hesitate to rely upon them. And that is my main critique of the approach in Naz..We should not shut our eyes to foreign sources merely because they are foreign. I remember a passage in the Naz judgment which says that foreign precedents should not be applied “blind folded.” But I am afraid that such an approach is a blinkered approach. The Delhi High Court had not blindly adopted international principles in the Naz Foundation case. But the approach of the Supreme Court in Naz Foundation seems xenophobic. This is not appropriate for the highest court of the country.