A person's sex is biologically determined at the time of birth. (Representional Image)
"A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. 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." These opening lines in the judgment of April 22 in Arunkumar-Srija case of Justice G.R. Swaminathan, sitting in Madurai Bench of Madras High Court, is a complete giveaway. The judge is conscious of the sensitive territory he was entering and therefore the preamble as a caveat. Despite the judge making it clear that he was 'not breaking any new ground', the verdict has been welcomed, as if it was path breaking and epochal.
Let's get real with the facts. The judgment must be read and seen for what it is. It is a simple case of a 'legally permissible marriage' between a man and a transgender woman being denied the benefit of registration. Supreme Court has already settled the issue, beyond any doubt, in National Legal Services Authority case, read with Justice K.S. Puttaswamy (popularly christened as Aadhaar case), Navtej Singh Johar case (decriminalising gay relationships), duly recognising constitutional rights of LGBTQ community. Relying on the propositions laid down, Justice Swaminathan has succinctly summed up, "Sex and gender are not one and the same. A person's sex is biologically determined at the time of birth. Not so in that case of gender. That is why after making and exhaustive reference to the human rights jurisprudence worldwide, in this regard, the Hon'ble Supreme Court held that Article 14 of the Constitution of India which affirms that the State shall not deny to 'any person' equality before the law or the equal
protection of the laws within the territory of India would also apply to transgenders. Transgender persons who are neither male/female fall within the expression of 'person' and hence entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country."
It was arithmetical or inferential logic - near child's play for a trained hand then to hold, "In the case on hand, Srija 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 Srija. Well, the judge may have dug into the epics in Ramayana and Mahabartha and the Aravan and Shikandi tales, and leapt into neuroscience too, it was all an exercise meant to reiterate the 'obvious'.
It was a seamless move for Justice Swaminathan to consummate his exercise with, "the expression 'bride' occurring in Sec.5 of the Hindu Marriage Act,1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how Srija perceives herself".
Honestly, the judge would not have been himself, if he had confined himself with this. His uniqueness, his personal and philosophical touch given to the verdict, are what catches the connoisseur. Justice Swaminathan was looking at a 'secular' issue relating to registration of a marriage, in a manner known to law. A simple direction based on Art.14 violation of the equality doctrine would have sufficed. The wide reporting of this decision has not turned the searchlight on where the judge has gone beyond in granting the reliefs. That is where his judicial imprimatur has been affixed deserving commendation and demur, both.
The judge found that husband/wife were professing Hindu religion. Arunkumar and Srija got married on Oct. 31, 2018 at Arulmighu Rameswara Temple, Tuticorin 'as per Hindu rites and customs'. Justice Swaminathan latched on to this factual foundation to expand on the scope of the petitioners' rights as being in breach of their constitutional right to profess the religion of their choice. Brilliant. "Both the petitioners herein profess their Hindu religion. Their right to practice Hindu religion is recognised under Art.25 of the Constitution of India. The Hindu Marriage Act is a personal law of the Hindus. When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview. One can have a civil marriage. One can also have a sacramental marriage. The petitioners' marriage was solemnised in a temple. Therefore, their fundamental right under Article 25 has also been infringed in this case." This is where the judge can be said to have gone to the 'breaking ground' retinue, which he himself has disassociated from.
This apart, there are two other aspects the judge has traversed into. It is beyond the call of the litigation before him. This has now become typical of the High Courts and Supreme Court, which borders on judicial overreach. Is it a myth or reality? No matter how many times the constitutional courts keep parroting that under Art.245 of Constitution it is for legislature to 'make law' and Courts to merely 'interpret the law', the reality is different.
Justice Swaminathan too has made bold. In the matter of recognising that Arunkumar belonged to 'Hindu Kuravan community, a notified Scheduled Caste" and Srija hailed from 'Saiva Vellalar community'. The marriage was therefore an 'Inter-caste marriage' entitling it 'to get financial incentive under the Dr. Ambedkar Scheme for Social Integration meant to encourage inter-caste marriages'. The petitioners made no such prayer. Sought no such incentive. Suo motu, in a clear case of benevolent judicial overreach, Justice Swaminathan has 'incentivised inter-caste-marriage'. This collateral benefit has been lost in the transgender focus. Thus far, it is fine.
Justice Swaminathan could/should well have stopped with this. But, dragged along by his urge to go one better, upon reading the work of Gopi Shankar, an intersex activist from Madurai - the judge directed Secretary to Government, Heath & Family Welfare, Government of Tamil Nadu "to issue a G.O. prohibiting the performance of sex reassignment surgery on intersex infants and children". This issue was not before the judge. It was not debated, argued, discussed, delineated at all. Unilaterally, the direction has been issued. What if there are medical reasons opined by expert doctors suggesting sex reassignment surgery for the health and welfare of the child? Can parents' decisions always be construed as not binding? No exceptions? Supreme Court in NLSA case saying that "no one shall be forced to undergo medical procedures...as a requirement for legal recognition as of their gender identity" is inarguable. But to effectively ban sex reassignment surgeries on intersex infants and children, as if all of them come within the mischief, is not. Should not notice have been given to stakeholders before a direction came to be issued? Avoidable transgression in an otherwise welcome judgment. Could we then call it a transjudgment?
(Author is practising advocate in the Madras High Court)