The Puttaswamy Effect: Right to Privacy of Transgender People

By Suhavi Arya

The Centre for Communication Governance (CCG) has recently launched a new initiative called the Privacy High Court Tracker which consists of decisions on the constitutional right to privacy passed by all High Courts in India. The Privacy High Court Tracker is a tool to enable lawyers, judges, policymakers, legislators, civil society organisations, academic and policy researchers and other relevant stakeholders, to engage with, understand and analyse the evolving privacy law and jurisprudence across India.

The cases on the tracker can broadly be divided into several themes such as – search and seizure, data protection, and gender rights. Within gender rights, there are several sub-themes, and this article, relying on information from the tracker, will be focusing on the rights of transgender people. It was the National Legal Services Authority vs. Union of India (“NALSA”) judgement of 2014 which gave unequivocal recognition to transgender people in India as the ‘Third Gender’. The Supreme Court interpreted ‘dignity’ under Article 21 of the Constitution to include diversity in self-expression, which allowed a person to lead a dignified life. It placed one’s gender identity within the framework of the fundamental right to dignity under Article 21. Article 21 was interpreted to include privacy by the Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., (“Puttaswamy 9-judge Bench”). The Puttaswamy 9-judge Bench unanimously recognised a fundamental right to privacy of every individual guaranteed by the Constitution, by reading privacy within Article 21, and in all of fundamental rights under Part III as a whole.

While NALSA gave members of the transgender community, the right to privacy in the protection of gender identity within Article 15, the Puttaswamy 9-judge Bench judgement placed the right to privacy as an expression of individual autonomy, dignity, and identity, at the intersection of Article 15 and 21. The right to life and personal dignity dwells in Article 21 but it is enriched by all the fundamental rights and its various interpretations.

In 2019, the Madurai Bench of the High Court of Madras, decided the case of Arunkumar and Ors. vs. The Inspector General of Registration. The facts of the case were – a cis-gendered male married a transwoman, in a temple in 2018. The Joint-Registrar refused to register the marriage, under Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. This was appealed before the District Registrar, who also refused and so it came before the High Court. The High Court stated that the definition of a ‘woman’ or a ‘bride’ is not a static one, and that it should be interpreted according to the need of the time. The Court also noted that Article 16 of the Universal Declaration of Human Rights broadly reads that, men and women have the right to marry without any limitations.

The case of Shafin Jahan vs. Asokan K.M. and Ors., was also referred to, where the Hon’ble Supreme Court held that the right to marry a person of one’s own choice is integral to Article 21. Moreover, the Court also relied on Dr. Ambedkar’s famous opinion that inter-caste marriages will lead to social integration, applying it to mean that marriages between transgenders and cis-genders will lead to the social integration of the members of the transgender community. The High Court famously decided that since the second petitioner self-identified as a woman, she is a woman; relying on both the NALSA and the Puttaswamy 9-judge Bench judgements.

The Arunkumar case simply decided on the issue of legalising love and commitment between two people. In doing so, it has now opened a plethora of other issues, such as – will a transwoman be allowed protection under the definition of ‘aggrieved person’ in a domestic relationship and have the same rights as a ‘woman’ under The Protection of Women from Domestic Violence Act, 2005 and the Hindu Adoptions and Maintenance Act, 1956? The right to divorce flows from the right to marry, can a transwoman claim alimony and/or maintenance? It can be said that The Hindu Succession (Amendment) Act, 2005 which removed gender discriminatory provisions in the Hindu Succession Act, 1956, will then apply to transwoman too, but what will happen to the inheritance rights of a transwoman who marries into a family practising Islam? The Arunkumar judgement, did not go into these details, but future litigants will need clarity on this matter, either with a legislation or in the absence of one, some clarity from the apex court.

Two other High Courts in India have also given judgements on marriages with transgender persons. One of them is Madras High Court’s Mansur Rahman vs. the Superintendent of Police & Anr. which has similar facts to the Arunkumar case (mentioned above) where the petitioner, a cis-gendered man had married a transwoman and was now seeking police protection from people harassing them. Here too, the Court noted the importance of integrating members of the transgender community in the contemporary community, by quoting Dr. Ambedkar’s views on inter-caste marriage. In the High Court of Orissa, in the case of Chinmayee Jena vs. State of Odisha & Ors. a transman, was in a live-in relationship with a cis-gendered female where the female was being forced into a heterosexual arranged marriage by her parents. The Court explicitly recognized the rights of trans persons to enter a live-in relationship with the partner of their choice, regardless of the “gender” of the partner. Thereby relying on the judgments in – NALSA, Puttaswamy 9-judge Bench and Navtej Singh Johar vs. Union Of India Ministry Of Law & Anr. (“Navtej”). This case too, will impact the right of a transman in inheritance, adoption of children and it also makes us question, what other rights do transmen have, for their protection?

In the case of X vs. State of Uttarkhand a single judge bench decided on a very interesting aspect of law – whether a transwoman’s complaint of rape should be recorded under section 377 or 375 of the Indian Penal Code, 1860 (‘IPC’)? The learned judge differentiated between post- Navtej section 377 which criminalizes all instances of non-consensual sexual intercourse regardless of gender and section 375 which criminalizes all instances of non-consensual sexual intercourse between a man and a woman. It also noted the difference in punishment, section 375 envisages a minimum imprisonment of 10 years leading to life (apart from fine), Section 377 envisages a maximum imprisonment of 10 years (apart from fine). While determining that, the court also decided that the transwoman had a right to self-determine her gender, “without further confirmation from any authority”. The Court stated that until the Parliament comes up with a legislation for the same, the law of the land is self-identification, as stated in NALSA. Accordingly, it ruled, in recognition of India’s international obligations undertaken in various convention, the Yogyakarta Principles, fundamental rights of life, liberty, dignity, privacy, the march of the law, and most importantly, in consonance with NALSA and Puttaswamy 9-judge Bench that the right to gender identity is a part of right to privacy. Notably, this case created a fine line of difference between Sections 377 and 375 of the IPC and implied that since the Petitioner self-identifies as a female, section 375 should apply. The Court particularly noted that self-identification is the law of the land, till the time there is a legislation a place. However, since then, the Transgender Persons (Protection of Rights) Act and Transgender Persons (Protection of Rights) Rules, 2020 have been implemented, which deviates from NALSA as sections 5 and 6 have made gender self-identification contingent on medical and psychological documentation.

On a final note, in the case of Puttaswamy, a 9-judge Bench led to the judiciary establishing that right to personal liberty, dignity and privacy are inalienable rights. This has been an important step forward for the transgender community in India. It is not only important that these rights are recognised by the Indian Constitution, but these rights are also foundational pillars of the Indian Constitution. They are intrinsic and inseparable to one another. To further this development, there needs to be legislation(s) and other social welfare schemes to address the challenges faced by the transgender community and to inculcate the community in such a way that there is no more ‘us’ and ‘them’.

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