S.R.

Bommai Versus Union Of India

Introduction

The case of S.R.Bommai vs Union of India is a very landmark case in the

purview of the Indian Constitutional history relating to the proclamation of
emergency under Article 356 of the Constitution. The case mainly came up with
the issue, of the power of the President to issue proclamation under Article 356
of the Constitution including the power to dissolve State Legislative Assemblies
and also issues relating to federalism and secularism as a part of basic structure.

Facts

“Bommai’s case came before a bench of 9 judges. On 21st April 1989, the
President issued a Proclamation under Art. 356 of the Constitution dismissing
the Bommai Government and dissolving the Legislative Assembly of the State
of Karnataka. A writ petition was filed on 26th April, 1989 challenging the
validity of the Proclamation. A special bench of 3 judges of the Karnataka High
Court dismissed the writ petition. On 11th October 1991, the President issued a
Proclamation under Article 356(1) dismissing the Government of Meghalaya
and dissolving the Legislative Assembly. On 7th August 1988, the President
issued a Proclamation dismissing the Government of Nagaland and dissolving
the State Legislative Assembly. The validity of the Proclamation was
challenged in the Guwahati High Court. The petition was heard by a Division
Bench comprising of the Chief Justice and Hansaria J. The bench differed on
the effect and operation of Art. 74(2) and hence the matter was referred to the
third Judge. But before the third Judge could hear the matter, the Union of India
was granted special leave to appeal and further proceedings in the High Court
were stayed. On 15th December 1952, the president issued a Proclamation

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under Article 356 dismissing the State Governments and dissolving the
Legislative Assemblies of Rajasthan, Madhya Pradesh and Himachal Pradesh.
The validity of these Proclamations was challenged by Writ Petition in the
appropriate High Courts. The Madhya Pradesh High Court allowed the Petition
but Writ Petition relating to Rajasthan and Himachal Pradesh were withdrawn
to the Supreme Court. The arguments in the case of Bommai commenced in the
first week of October 1993 and were concluded in the last week of December
1993. The hearing was interrupted thrice because of Dashera and Diwali
holidays and the brief absence of Pandian J. from the bench." The law of the
land changed from the year 1992 after the demolition of the Babri Masjid. At
that time BJP ruled the states and had their government removed under Article
356 of the Constitution.

The case of Bommai not only comprised of the issue of Proclamation of

emergency by the President but it also has different types of issues relating to
secularism and federalism of the Constitution in the Indian context. It also
enhances in the matter of judicial review of Article 365 of the Constitution
which is capable of exercise in testing invalidating proclamation.

The issue of democracy and secularism was also related to this case. ‘The
Supreme Court of India has said that democracy and secularism is the basic
feature of the Indian Constitution. India is democratic as it has a responsible and
parliamentary form of government which is accountable to an elected
legislature.’

Secularism

‘Secularism is also a part of basic structure as the basis of the Indian

Constitution is that all citizens are equal and that the religion of a citizen is
irrelevant in the matter of his enjoyment of Fundamental Rights. The

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Constitution ensures equal freedom for all religion and provides that the religion
of the citizen has nothing to do in socio-economic matters.’

Justice Sawant and Justice B.P. Jeevan Reddy observed that ‘the concept of
secularism is not merely a passive attitude of religious tolerance. It is also a
positive concept of equal treatment of all religions. This concept was not
expressly incorporated in the constitution at the stage of its making, but its
operation was visible in the Fundamental Rights and Directive Principles. The
concept of secularism, though not expressly stated in the constitution, was
nevertheless, deeply embedded in the constitutional philosophy. In 1976,
through 42nd amendment of the Constitution, the concept of secularism came
into being. The constitution does not define the word ‘secular’ as it is a very
elastic term and not capable of any precise definition it is kept undefined.’

In the view of Justice Ramaswamy, ‘secularism is not anti-god. In Indian

context secularism has a positive content. The Indian Constitution embodies the
positive concept of secularism and has not accepted the American doctrine of
secularism i.e. the concept of erecting “a wall of separation between Religion
and State". The concept of positive secularism separates spiritualism with
individual faith.’

Federalism

The context of S.R. Bommai also gives us an idea about the federal structure of
India, so this is the second issue that has come up. ‘The question of Federalism
arose in connection with the main topic of discussion, of the power of President
to proclaim the failure of Constitutional Machinery, under Art.356. In this
connection Justice Sawant and Kuldip Singh observed that federalism was an
essential feature of our Constitution and were a part of basic structure.’ Justice
Jeevan Reddy observed that, ‘the facts that under the scheme of our

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Constitution, greater power is conferred upon the state vis-à-vis the States do
not mean that they are mere appendages of the Centre. With the sphere allotted
to them, Sates are supreme. The centre cannot tamper with their powers. More
appropriately, the court should not adopt an approach or interpretation, which
has the effect of or tends to have the effect of whittling down the power
reserved to the State.’ Thus federalism in India is not a matter of administrative
convenience, but one of principle.

The judgment of Justice Verma, Yogeshwar Dayal and Justice Ahmadi also
dealt with the issue of federalism and held that it was a part of basic structure.
Justice Ramaswamy held that ‘federalism envisaged in the Constitution of India
was a basic feature in which the Union of India is permanent within the
territorial limit set out in Article 1 of the Constitution and is indestructible and
he sets out what he considered to be the feature of federalism. He makes
statement that federalism is a basic feature of our constitution is correct, but in
describing the nature of federalism in our Constitution the statement made by
him are not correct as he has made no attempt to answer the observations made
by Justice Sawant.’ Therefore it is submitted that the discussion is somewhat
confused as two judges hold that our Constitution is a federal Constitution with
a bias towards the centre and the other two judges have made no attempt to
answer the observation of Justice Sawant.

After the issue of secularism and federalism in the context of this case20 we
move on to the next crucial issue which belongs to the:-

Dissolution of the Legislative Assembly- ‘Article 174(1)(b) confers powers on

the governor to dissolve the legislative assembly of the State before the
expiration of the term of five years. In normal circumstances, the Assembly is
not dissolved till the expiry of the term and so long the Ministry is enjoying
support in the House. When the ministry has lost the majority support and no

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alternative to stable the ministry is possible, he may exercise his discretion and
dissolve the Legislative Assembly. In this case the Supreme Court has held that
the Assembly should not be dissolved until the proclamation made under Article
356 of the Constitution by the President, has been approved by both the Houses
of Parliament. Therefore dissolution by the President after the issuance of the
proclamation would be as good as dissolution of the Assembly by the Governor
whose powers are taken over.’

Another issue which can be looked upon is the Non-Justiciability of the Cabinet
advice - It mainly relates to the ‘scope and ambit of Article 74(2) of the
Constitution, which bars the Court from embarking upon an inquiry as to
whether any advice was tendered by the Council of Ministers to the President.
The Supreme Court clarified the implications of Article 74(2) and held that no
Court is concerned with what advice was tendered by the Minister to the
President. The court is only concerned with the validity of the order and not
with what happened in the inner council of the President and the Ministers. An
order cannot be challenged on the ground that it is not in accordance with the
advice tendered by the Minister or that it is based on no advice. If the president
acts without the advice of the Ministers, it may be a case of impeachment, but
according to the Court it is the act of the President. Article 74(2) protects and
preserves the secrecy of the deliberation between the President and his Council
of Ministers. Its scope is limited. This Article cannot override the basic
provisions of the Constitution relating to Judicial Review. It does not mean that
the government will not justify the Act of the President taken in exercise of his
functions. When an Act or Order of the President is questioned in a Court, it is
for the Council of Ministers to justify the same by disclosing the materials
which formed the basis of the Act.’

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Judicial Review:

‘Judicial review came with the Question of Politics and relating to this Justice
Ahmadi held that, the opinion formed by the President on the basis of
Governors report reflects his political judgment and it is difficult to evolve
judicially manageable norms for scrutinizing political decisions. Therefore by
the very nature of things governing decisions under Article 356, they are not
justificable. Justice Ramaswamy held that, the satisfaction required under
Article 356 is a political one and is not judicially manageable as long as the
decision does not suffer from malafide irrationality, it cannot be challenged
merely on the grounds that material was inadequate or insufficient. Justice
Jeevan Reddy expressed the same opinion and held that judicial review is not
concerned with the merits of the decisions but the manner in which it is taken.
However he also concurred with Justice Sawant’s conclusion who held that, the
Proclamation issued under Article 356 is judicially reviewable to the extent of
examining whether it was issued on the basis of any material at all or whether it
was relevant or whether it suffered from malafides, but also held that
sufficiency of the material cannot be questioned. It is the only the legitimacy of
the inference drawn from such material, which is open to judicial review.

Application of Article 74(3), Sec.123 of the Indian Evidence Act and

administrative law were also there in the issue of judicial review. Justice
Ramaswamy held that Article 74(2) has to be harmonized with Article 142 and
therefore though the advice of the Council of Ministers cannot be examined, the
material on which it was based upon is reviewable. The plea of Sec. 123 has to
be examined on merits and a broad principle cannot be laid down. Justice
Jeevan Reddy while expressing the same view held that the scrutiny of the
material on which the decision of the Council of Ministers was based upon can
be done before or after Parliament approves the proclamation. Majority of the

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judges has clearly held that, the principles of administrative law are inapplicable
to the decision of constitutional authority. Justice Sawant held that, these
principles are applicable, because the decision under Article 356(1) should be
tested by the doctrine of proportionality with respect to the decision taken at the
moment of arising of the situation. The plea of Article 361 has been summarily
dismissed on the ground that the Council of Ministers would be liable under the
name of the Union of India, even if the President is immune from judicial
scrutiny. The summary dismissal of the plea of Article 361 appears to ignore the
decisions in Jayantilal Sodhan vs F.N.Rana, where it has been clearly laiddown
by the 5 judges, that the executive power of the President is different from the
executive power of the Union and that this principle has not expressly been
overruled in any of the cases.’

One of the most important issue of this case without which the case is
incomplete is the Scope and Ambit of Article 356.

‘President’s rule is invoked under Article 365, only on the occasion in, a
situation resulting from instability of the state government, or in a situation
resulting from the law and order problems, or frequent defections and change of
loyalties by the legislators, or on the ground of corruption, mal administration,
misuse of power for partisan ends. An unusual instance of the invocation of
Article 356 and the imposition of President’s rule in the States took place in
1977, after the lifting of the Emergency of 1975, as the general elections for
Lok Sabha were held in n1977.’

‘The Supreme Court of India has lain down a number of guidelines which
reflects the majority view. Those are:

1. Article 356 confers extra ordinary power on the President. This power
should be exercised sparingly and with great circumspection. The court

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 referred to the observations made by Dr. B.R. Ambedkar on Article
356.He hoped that the emergency provisions would be invoked in rarest
of rare cases. The court also endorsed the recommendations of the
Sarkaria Commission in regard to the use of Article 356. The
Commission recommended that before invoking Article 356(1) a warning
in specific terms should be given to the State. All alternatives should be
exhausted to contain the situation and all attempts to resolve the crisis of
the State level should be made.

2. Though Article 356 does not expressly speak of the dissolution of the
Legislative Assembly of the State, however, such power is implicit in
sub-clause(a) of Article 356(1). Since Article 174(2)(b) empowers the
Governor to dissolve the Legislative Assembly and the President under
Article 356(1))a) assumes to himself the powers and functions of both of
the Government and the Governor. He can dissolve the Legislative
Assembly as part of the proclamation issued under Article 356(1) or by a
subsequent order.

3. The court relating to the power to dissolve the Legislative Assembly, said
that Clause (3) of Article 356 requires the Proclamation to be laid before
both Houses of Parliament. The President has the power to suspend the
Legislative Assembly under Article 356 (1)(c) before the approval of the
Proclamation by the Parliament.

4. The High Court or Supreme Court shall have the jurisdiction to entertain
a writ petition questioning the Proclamation if it is satisfied that the writ
petition raises arguable question with respect to the validity of the
Proclamation. If the situation demands, the court may also stay the
dissolution of the Legislative Assembly.

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 5. Clause (3) of Article 356 is conceived as a control on the power of the
President and also a safeguard against abuse. Thus if the two Houses of
Parliament do not approve the issuance of Proclamation, both the State
Government and the State Assembly can be revived.

6. If the proclamation issued is held invalid by the Court, then,

notwithstanding the fact that it is approved by the both House of
Parliament, it will be open to the Court to restore the status quoi ante to
the issuance of Proclamation and hence to restore the Legislative
Assembly and the Ministry.

7. In all cases where the Ministry loses majority support, it was held that the
proper course for testing the strength of the Ministry was holding the Test
on the floor of the House, except in case where the holding of the floor
test was considered not possible.

8. It was held that Article 74(2) did not bar the Court from calling upon the
Union Council of Ministers to disclose the material upon which the
President had formed the requisite satisfaction.’

9. It was held that the power of the President under Article 365 of the
Constitution is a constitutional power and not an absolute power.

‘The most recent instance of the invocation of Article 356 was the imposition of
the President’s rule in the State of Uttar Pradesh in 1996. After the resignation
of the Mayawati Government, the main parties, the B.J.P. and the Samajwadi
Party, did not claim to form Government. The Governor recommended the
President’s rule in the State and further said that the Legislative Assembly of
the State should be kept under suspended animation until the proclamation to be
made under Article 356 was confirmed by the two Houses of the Parliament.’

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Critical Analysis

This case in the history of the Indian Constitution has great implications
on Centre-State Relations. It is in this case that the Supreme Court boldly
marked out the paradigm and limitations within which Article 356 has to
function. The Supreme Court said that Article 356 is an extreme power and is to
be used as a last resort in cases where it is manifest that there is an impasse and
the constitutional machinery in a State has collapsed. The views expressed by
the court in this case are similar to the concern showed by the Sarkaria
Commission.

The principles laid down in this case put a bar on the dismissal of the state
government by the centre for political gains.

It was in this case that the court firmly laid down certain provision relating to
Presidential proclamation issued Under Article 356. The Court held that
Presidential proclamation under Article 356 is not absolute and the power
conferred by Article 356 on president is conditioned power. The Supreme Court
held that presidential proclamation is not immune from judicial review.
Moreover, if the presidential proclamation is held unconstitutional,
the legislature dissolved by the presidential proclamation can be revived. It was
also contended that the Articles 74(2) bars the court from inquiring about the
material on the basis of which the proclamation is issued, but the court rejected
this contention.

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In spite of such bold and illustrious judgement delivered by the Supreme Court,
people criticized that the Court took such a long time to deliver the verdict and
allowed, in the cases of Karnataka and Meghalaya, the illegality to be
perpetuated and ultimately deprive the citizens of those states to be governed by
their chosen representative. Secondly, it was also criticized that the concept
of secularism had been misinterpreted only regard to Hindu fundamentalism.

Still, the judgement delivered by the Supreme Court put a check on arbitrary
dismissal of state governments in future and strengthen the federal structure of
Indian polity which had hitherto been damaged on several occasions particularly
when different political parties were in power at the Centre and the State.

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Conclusion

The case of S.R.Bommai is a vast case consisting of more than 200 pages of
decision given by the Supreme Court of India. It is an important development in
the Constitutional Law of India. As a part of comprehension I have tried to trace
out some of the main issues of the case and how are they implied. I have dealt
with the issue of secularism and federalism, and have mentioned the view of
almost all the judges, who has given the opinion that a federal and secular
structure is an essential feature of the Constitution of India and State
governments, and comprises of the basic structure. The issue of dissolution of
Legislative Assembly which deals with Article 174(1)(b) is given in the context
of the dissolution of the State Assembly by the President.

Under Article 356 of the Constitution which cannot be done until the
proclamation is verified by both the Houses of Parliament. It is held by the court
relating to the non-justiciability of the cabinet advice that no court is concerned
with the advice tendered by the Ministers to the President as it is only concerned
with the validity of the order and is protected by Article 74(2) of the
Constitution.

Article 356 has been summed up in this case and has given extraordinary
powers to the president which must be used sparingly during the situation of
protection of a democratic form of Government and to prevent paralysis of the
political process. ‘The majority view in this case is the test laid down in the
Barium Chemicals Ltd. and the decisions for adjudging the validity of
administrative action, which cannot be for testing the satisfaction of the
President under Article 356. The dissenting by, Sawant and Kuldip Singh JJ.,
held that the parameters of judicial review developed in the field of
administrative law are not antithetical in the field of constitutional law and they
equally apply to the domain covered by Constitutional Law.’

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 National Legal Services Authority V. Union of India

Introduction

For long the transgender community or the TG community in which the term
transgender is an umbrella term has been sidelined by the community and has
been tormented and discriminated. They continuously face abuse and violence
just because they don’t come under the universally recognised genders i.e. male
and females. They are tortured and do not enjoy the same freedom and rights
which the citizens enjoy. They are shunned and defamed by the society and are
considered as untouchables. They are considered as a liability and pain for the
nation.

Finally a petition was filed by the National Legal Services Authority which was
the primary petitioner which provides free legal aid to the disadvantaged and
unprivileged sections of the society and resorts to solve their grievances. The
organisation works for the betterment of the society and thus the petition was
filed so that Transgender can be recognised as a third gender in the eyes of the
law other than the binary genders i.e. male and female. Poojaya Mata Nasib
Kaur Ji Women Welfare Society who filed a writ petition and Laxmi Narayan
Tripathy who is renowned Hirja activist also filed a petition.

The petitions were filed on the grounds that non recognition of the transgender
community as a separate sexual and gender identity is a violation of many
Fundamental and Human Rights, which are protected by the Indian Constitution
and other International Human Rights documents. Fundamental rights such as
article 14(Right to equality), article 21(Right to life and liberty) etc.
Transgenders have the right to enjoy the same rights and freedoms which the
binary genders male and female enjoy.

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Understanding the term, Transgender

The concept of Hijras and other transgender’s is not a new concept. They were
recognised in Ancient India as well. Lord Rama, when in exile with Sita and
Lakshman from the kingdom for 14 years, turns around his followers and asks
all men and women to leave them alone and return back to the city. Among the
followers Hijras were also there who did not feel that they should follow this
order. Lord Rama was very impressed by this and gave them power to bless on
auspicious occasions like childbirth and marriage. Transgender’s which include
Hijras, Kothis, Aravanis have a very strong presence in Hindu mythology and
other religious texts.

• Hijra community has also been mentioned in the text on human sexual
behaviour written sometime between 400 BCE and 200 CE which is a
Hindu text. They have been called as ‘tritiyapakriti’ or third gender has
been an important part of Vedic and Puranic literatures, it . The term
‘napunsaka’ has been used to show the absence of procreative
capability of a person.
• There are many forms of Shiva one of which is when he merges
himself with his wife Parvathi to become Ardhanari a very important
figure in the Hijra community.
• In Mahabharata Aravan son of Arjun and Nagakanya offers himself to
be sacrificed to Goddess Kali so that the Pandavs can win the war. But
it was in one condition that Aravan has to spend his last day of his life
in matrimony.
• Unfortunately, Aravan could not find any woman who would agree to
marry him as no woman wanted to marry a man who is going to die in
the next day after marriage. Lord Krishna distressed by seeing this
converts himself in the form of a woman called Mohini and marries

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 him. The Hirjas of Tamil Nadu consider Aravan their ancestor and call
themselves Aravanis.
• Hijras also held important positions in courts and posts in
administration during the Mughal era in India from the 16th to the
19th century. They had religious authority and gave blessings in
religious ceremonies.
• A detailed analysis of the historical background of Hijras in Mughal
era is there in the book of Gayatri Reddy, “With Respect to Sex:
Negotiating Hijra Identity in South India” – Yoda Press (2006).
• The onset of colonial rule changed everything from the 18th century
onwards. Early European travellers showed that they showed disgust
by the sight of Hijras and could not understand why they were given so
much respect in the royal courts and other institutions. In the second
half of the 19th century, the British colonial administration tirelessly
tried to criminalize the Hijra community and to deny them the civil
rights. Hijras were considered to be separate caste or tribe in different
parts of India by the colonial administration. The pre partition stage
changed the conditions of the transgender community.

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Facts of the Case

Looking back into the history of the country, it can be seen that the Transgender
Community was accorded a special and important status. The Hindu mythology,
Vedic and Puranic literatures recognised them as the third gender and bestowed
them great respect. They played an important role in the royal courts and were
considered to have the power to give blessings. This status of the TG
community changed after the advent of the British rule in India and the
Colonialists treated them in an inhuman manner.

However, the transgender community face a lot of humiliation and disgrace in

the present times. They are not allowed medical, educational facilities etc. They
are exploited and harassed by people. All these are violations of the
fundamental rights of our country and several International Human rights
documents which are given above. This eventually led to the filling of the
petition. By virtue of the same, laws governing marriage, adoption, inheritance,
succession, taxation and welfare were all governed by whether or not you are
male or female. Interestingly, this determination of gender is always done at
birth. It is due to this lack of legal provisions for persons of the third gender that
they faced discrimination across various walks of life. Thus the case came
before the court when a public Interest Litigation was filed by the National
Legal Services Authority followed by other petitioners as well.

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Arguments and Reasoning

The petitioners were joined by a number of interveners. They argued that only
binary genders of male and female were recognised under Indian law and the
lack of legal measures to cater for the needs of the represented groups
contradicted a number of constitutional rights including the rights to a dignified
life, equality before the law, non-discrimination and freedom of expression.
They are disrespected and exploited by people.

According to article 14 (right to equality) of the Indian constitution no person

shall be discriminated on the basis of sex, religion etc. The State shall not deny
to any person equality before the law within the territory of India. It is not
restricted to male and female.

According to article 15 of the Indian constitution

The State shall not on the ground of race, sex, religion etc. be discriminated
Also no person should be on the grounds of religion, race, sex etc. be restricted
to use wells, shops, public restaurants etc. They should also not be restricted to
use wells, roads etc. It should not prevent the State from making any special
provision for children and women.

Article 19 of the Indian constitution which guarantees citizens freedom of

speech, form associations or unions, to meet peacefully without any arms etc. is
also being violated over here and is perhaps one of the most important right
which is being violated. Many times we can see that transgender’s don’t get to
dress the way they like as it’s against the culture of our country. This right
includes the right to expression of one’s self-identified gender. This expression
may be done through dress, words, action or behaviour or any other manner.

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And finally article 21 of our Indian constitution which is the most extensive
right guarantees citizens the right to personal life and liberty i.e. no person shall
be deprived of his life and personal liberty except by law. Transgender’s have
every right to live their life in a dignified and a respectful way. It also includes
right to live with human dignity. Expression of oneself with respect to a gender
which is self-recognized is an important part of Article 21.

Article 16 is also being violated which says that there should be equal
opportunities to all citizens. No person shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence etc. be discriminated. Transgender’s
are not given equal job opportunities.

There are many international laws as well which are being violated

• International Covenant on Civil and Political Rights (ICCPR).

• Article 6 (right to life).
• Article 7 (prohibition of torture or cruel, inhuman or degrading
treatment).
• Article 16 (recognition before the law),
• Universal Declaration of Human Rights (UDHR)
• Article 6 (right to life)
• Yogyakarta Principles, Principles 1 (universal enjoyment of human
rights), 2 (rights to equality and non-discrimination), 3 (right to
recognition before the law), 6 (right to privacy), 4 (right to life), 9
(right to treatment with humanity while in detention), 6 (right to
privacy), 18 (protection from medical abuses)
• Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) Articles 11 (discrimination in employment) and 24
(commitment of State parties)

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 • Convention for Protection of Human Rights and Fundamental
Freedoms (European Convention of Human Rights), Article 8 (right to
respect for private and family life) and 14 (non-discrimination)

Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of

International Conventions)

So due to all these reasons transgender’s live a tough life. If their gender is
recognised things would be much easier for them. It would be easier for them to
fill forms and they won’t have any difficulty in choosing between sexes as they
would have a separate gender in the form. They won’t have to under any
operation to recognize themselves under a particular sex. They would get to
enjoy all the rights which male and female citizens get to enjoy.

The defendants on the other hand defended by saying that the state government
have set up an “Expert Committee on Issues Relating to Transgender” and said
that the petitioner’s views would be sought as part of the process. Various states
and union territories have also argued that they have taken significant steps to
improve the conditions and status of the transgender community.

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Judgement

It was divisional bench. The judgment was given by Justice K.S. Radhakrishnan
and Justice A.K Sikri. However, Justice A.K Sikri gave a separate opinion with
some additional comments. The judgment relied on many courts of foreign
countries such as courts of Malaysia, Pakistan, New Zealand, Australia and
English courts as well. Firstly the court put emphasis on the psychological sex
rather than the biological sex. The Court talks about the Corbett v. Corbett with
its complete emphasis on biological sex. It also talks about Attorney-General v.
Otahuhu Family Court which talks about New Zealand’s standard requiring
surgical and medical procedures to effect a transformation in. The court says no
to gender recognition based on biological way and gives full importance to
recognition by psychological tests.

Before getting into the constitutional harms it is imperative to mention that Para
53 of the judgement: “Any international convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into those
provisions”. It is also said that all those principles discussed on TGs and
international conventions including Yogyakarta principles, which are consistent
with the fundamental rights of the Constitution of India must be recognised and
followed. Transgender people are suppressed and are faced with discrimination
in various aspects of life including health, employment etc. The court referred to
Part 21 of the United Nations Convention against Torture and Other Cruel
Inhuman and Degrading Treatment or Punishment, wherein it is stated that
States are obliged to protect all persons regardless of their sexual orientation or
transgender identity. The court acknowledged the fact that there is absence of
legislations in the country and it was therefore necessary to follow International
Conventions.

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The court held that transgenders falls within the purview of the Indian
constitution and therefore should enjoy all the rights of the constitution. These
rights include article 14 which guarantees right to equality. Article 14 is a right
enjoyed by “any person” (similarly, it applies equally to men, women and
transgender people. Hence, transgender people are entitled to equal legal
protection of the law. They have equal right in employment, health care,
education and civil rights. Discrimination on the grounds of sexual orientation
and gender identity represents inequality before the law and unequal protection
of the law and violates Article 14.

Article 15 requires the improvement of socially and educationally

disadvantaged groups. The Court says that transgender have not been able to
enjoy the provisions as under Article 15(4) for the advancement of the socially
and educationally backward. They constitute such a group and the state is bound
to take some proper action to remedy the injustice done to them for centuries.

The Court stated that a person’s right to show or express gender identity
through words, dress, action or behaviour is included in the Article 19 (right to
freedom of expression). Privacy, self-identity, autonomy and personal integrity
are fundamental rights protected by Article 19.

The court also held that the Transgender community have the right to article 21.
They have the right to live a dignified life and enjoy personal liberty.

The Court declared that the Centre and State governments must grant
recognition of gender identity as male, female or third gender in the eyes of the
law. It was observed that transgenders require full recognition in the eyes of the
law. They should get to enjoy health care, education etc.

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By this judgement all government documents such as ration card, passports etc.
would recognize third gender. The court also held that he transgender’s are
citizens of India and are fully entitled to get the benefit of all schemes and
programmes launched by the Government irrespective of their population. Now
the Election Commission of India has also taken special measures to enrol. In
his judgment in the NALSA case Justice Radhakrishnan admits this fact in these
words: “Seldom, our society realizes or cares to realize the trauma, agony and
pain which the members of Transgender community undergo, nor appreciates
the innate feelings of the members of the Transgender community, especially of
those whose mind and body disown their biological sex. Our society often
ridicules and abuses the Transgender community and in public places like
railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they
are side-lined and treated as untouchables, forgetting the fact that the moral
failure lies in the society’s unwillingness to contain or embrace different gender
identities and expressions, a mindset which we have to change”. From Justice
Radhakrishnan’s opening lines talking about the moral failure of society’s
unwillingness to contain or embrace different gender identities and expressions,
down to Justice Sikri’s cognizance of the painful process of transitioning from
one gender to another, this is a text that is shot through with empathy.

The court also took the decision that Hijras, Eunuchs are to be treated as “third
gender”. it made various declarations and directions to the Centre and State
Governments such as to operate separate HIV Zero-Surveillance Centres,
Provision for separate public toilets and appropriate medical care in hospitals
for transgender’s, frame various social welfare awareness schemes for the
improvement of conditions of the TG community, to make the public aware
about the atrocities against the TG community and to regain the respect and
trust the TG community once enjoyed.

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 Legislations in other countries have also been analysed

In the international human rights law, many countries have enacted laws for
recognizing rights of transsexual persons, who have undergone either
partial/complete SRS, including United Kingdom, Netherlands, Germany,
Australia, Canada, Argentina, etc.

• United Kingdom has passed the General Recommendation Act, 2004. The
Act is all encompassing as not only does it provide legal recognition to the
acquired gender of a person, but it also lays down provisions highlighting the
consequences of the newly acquired gender status on their legal rights and
entitlements in various aspects such as marriage, parentage, succession, social
security and pensions etc. One of the notable features of the Act is that it is
not necessary that a person needs to have undergone or in the process of
undergoing a SRS to apply under the Act.
• In Australia, there are two Acts dealing with the gender identity, (1) Sex
Discrimination Act, 1984; and (ii) Sex Discrimination Amendment (Sexual
Orientation, Gender Identity and Intersex Status) Act, 2013 (Act 2013). Act
2013 amends the Sex Discrimination Act, 1984. Act 2013 defines gender
identity as the appearance or mannerisms or other gender- related
characteristics of a person (whether by way of medical intervention or not)
with or without regard to the person’s designated sex at birth.

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Critical Analysis

Well, we cannot ignore the fact that the TG community for long have suffered
and gone through torture, humiliation and pain. They kept quiet and suffered but
finally through this judgement the condition of the transgender community has
improved. This judgement has made an impact not only in India but throughout
the world. The exclusion of the TG community from participation in the society
is a major human rights issue. India follows democracy and democracy includes
everyone irrespective of their deformation, condition etc. Everyone should be
treated equally and should get equal protection of law if we go by the 3
conditions of Rule of Law which includes equality.

However, there are flaws in the judgment as well. Transgender is an umbrella

term for people whose gender identity is different from the gender given to
them at birth, and in the case of India, there are variety of identities, such as
kothi, transman etc. is not clearly outlined in the judgment. A comprehensive
list of replies by commentators and collectives has been posted by Orinam. In
one of them, Gee Imaan Semmalar offers an analysis of the text of the
judgment, and its possible implications. He terms the judgment “confusing,”
and it combines a number of transgender identities, for example referring to all
hijras as ‘third gender’. Dutta points out that at one aspect it tries to promote
self-identification but in another way it is trying to promote more psychological
tests. The Yogyakarta Principles was not accepted in its true spirit and
letter. The issue of sexual intercourse too wasn’t looked deep into. The need for
separate detention facilities were not taken into consideration. It also doesn’t
check on the atrocities by the Transgender community by the police who do not
listen and solve the grievances of the TG community. Thus the judgment does
not look into the long term and extensive solution to the problems faced by the
transgender community.

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Conclusion

It is great that now that there is a verdict which makes transgender a spate
gender then the binary gender, however, all is not over now. The transgender
community still has a long way to go. Battles are not won just like that a lot of
scarifies and effort needs to be put in. Let us hope that the Government
implements the verdict of the Supreme Court honestly and gives these people
their dues for which they are fully entitled. It is a matter of fact that though this
judgment is a historical judgment which has protected the dignity and identity
of the transgender, only this verdict is not sufficient. This verdict should be
implemented by the Central Government, State Governments, and all other
agencies of the Government in too and a particular policy should be framed by
the different ministries/departments to prepare a national plan for the welfare of
transgenders. The Government should constitute a National Commission for the
Transgenders which should look after the interests of these people and protect
their rights effectively. If possible, either the constitutional or statutory status
should be given to this commission. Until and unless the transgenders get a fair
deal, the vision of inclusive growth set by the founding fathers can never be
achieved in this land of Buddha. This is not only the duty of the state but it is a
collective duty of all of us which we must discharge truly.

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References

1. https://lawlex.org/lex-bulletin/case-study-s-r-bommai-v-union-of-
india/7821
2. https://www.frontline.in/static/html/fl1422/14220170.htm
3. https://www.lawteacher.net/free-law-essays/constitutional-law/bommai-
versus-union-of-india-constitutional-law-essay.php
4. https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-
and-why-is-it-quoted-often/article23929119.ece
5. https://www.thebetterindia.com/142196/karnataka-assembly-sr-bommai-
supreme-court-floor-test/
6. https://blog.ipleaders.in/national-legal-services-authority-v-uoi/
7. https://www.livelaw.in/tag/national-legal-services-authority-v-union-of-
india/
8. https://globalfreedomofexpression.columbia.edu/cases/national-legal-
services-authority-v-union-of-india/
9. https://www.livelaw.in/tag/nalsa-v-union-of-india/
10.http://www.equalrightstrust.org/ertdocumentbank/NLSA%20v%20Union
%20of%20India.pdf

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