In Ram Krishna Dalmia vs. Justice SR Tendolkar (AIR 1959 SC 538), the Hon’ble Supreme Court held that even a single person may constitute a class by themselves and warrants constitutional protections.
Unfortunately, the Hon’ble Supreme Court took an extremely narrow view of the fundamental rights in Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1, held that:
“52. In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions…”
A constitution bench of 9 Hon’ble judges of the Supreme Court in Justice KS Puttaswamy vs. Union of India, (2017) 10 S.C.C. 1, reversed the erroneous observations of the division bench of the Supreme Court in Suresh Kumar Koushal vs. Naz Foundation, that impinged upon rights of the members of LGBTQ communities. It was observed that the rights of the lesbian, gay, bisexual, and transgender population, as per the decision in Puttaswamy (supra), cannot be construed to be “so-called rights” as the expression “so-called” seems to suggest the exercise of liberty in the garb of a right which is illusory. It went on to clarify that the constitutional framers could never have intended that fundamental rights protection be limited to the majority of people. If this was the objective, then every provision in Part III of the Constitution would have included qualifiers such as ‘majority persons’ or ‘majority citizens’. Rather than that, the provisions use the terms ‘any person’ and ‘any citizen’, emphasizing that constitutional courts are obligated to protect the fundamental rights of every single citizen, without waiting for a catastrophic situation in which the fundamental rights of the majority of citizens are violated.
The Hon’ble Supreme Court in Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1, had declared the offence u/s 377, IPC as unconstitutional and decriminalized it among the consenting adult human beings. There was a mention of NALSA judgment in this case. It was pointed out that the eminence of identity, as articulated so eloquently in the NALSA case, binds human rights and the constitutional guarantee of the right to life, liberty, and dignity inextricably together. In the same vein, we must realize that a constitutionally tenable sense of identity cannot be pigeonholed exclusively to one’s orientation, as this may suffocate human choice. Self-determination is at the heart of the concept of identity; it is the realisation of one’s own capabilities, visualising opportunities, and rejecting external views with a clear conscience that is consistent with constitutional standards and values or principles that are, in a nutshell, constitutionally permissible.
The recent judgments of the Hon’ble Supreme Court have given a ray of hope to all the members of the society including the third gender that the Supreme Court is committed to the Constitution of India, and the ultimate protector of fundamental rights of the citizens that are extended to every individual of this country.
Coming to the transgender persons, in the authors’ understanding, they constitute a completely separate class and definitely need special protection under the constitution, being suppressed and oppressed members of the Society for decades. With burgeoning opportunities being opened for them in the civil services sector, or in the police establishments, or are being granted privacy rights, it is high time, we bring to them the right to inherit and bequeath which could make our society a more inclusive society that seems to be distant from here. Transgender persons have been waiting for decades to get over the era of darkness as they have bore the catastrophic situations in which the fundamental rights of the majority of Transgender persons have been violated.
It is time for the legislature to liberate the third gender with the right to vote, the right to own property, the right to marry, the right to adoption, the right to claim a formal identity of their association through a passport and a ration card, a driver’s license, the right to education, employment, health. With this advancement, Transgender persons will be able to breathe freely and live with dignity, in this country after decades of suppression & oppression and it will further the cause of social justice as envisioned by the framers of our magnificent constitution.