This article has been authored by Kusumkali Mitra and Aditya Tripathi, students of third-year and fifth-year respectively at Damadoram Sanjivaya National Law University, Vishakhapatnam.
According to Merriam Webster the word transgender means “of relating to, or being a person whose gender identity differs from the sex the person had or was identified as having at birth”. Presently, there are different names for transgenders such as Hijras, Tritiyaparkriti, Aravanis etc.
During British era, the transgenders were treated as persons with malformation. They were seen as propagators of sexual diseases. By the late nineteenth century, through Section 377 of the Indian Penal Code, all penile-non-vaginal sexual acts between people were condemned. There was an unmistakable move to expel transgenders as a noticeable social class by marking them as 'habitual criminals' and 'sexual deviants'. Thus, history shows a clear picture of denial of rights to the transgender community.
Are the Rights of Transgender Recognised in India?
The transgender community, known as Hijras in colloquial terms, could be defined as a biological amalgamation of masculine and feminine features to a degree that it is impossible to brand them within the two distinct binary genders, that is, man and woman.
The Apex Court in National Legal Services Authority (NALSA) v. Union of India and Ors -“perceived third-sex individuals as a different class from the restraint grouping of sexual orientation as male and female, alongside perceiving their common option to cast a ballot, to get education and to marry, to get legacy and to embrace children”. The Supreme Court in this case affirmed that the fundamental rights given under the Constitution of India are also available to the transgender people in India. Thus, sexual orientation acknowledgment is the initial move towards recognizing the need and making an implementation component for various human rights that each resident including third-sex individuals are qualified for.
The Supreme Court judgment in NALSA is a major step towards gender equality. But the issue regarding the granting of legal status to transgender marriage is still unaddressed by the courts and the legislature
Right to Marry: A Fundamental Right?
Marriage is acknowledged as a legally perceived association between two individuals, which bestows upon a person certain rights. The choice to solemnize one’s marriage, presently a sacred right in India, licenses people to take a decision willingly and this right can't be encroached by the State. The acknowledgment of inborn human dignity is essential so as to justify the rights under Article 21 of the Constitution. The choice to marry is vital for upholding one’s dignity and to enjoy an eloquent human existence and at the same time a recognised marriage status is a fundamental right under Article 21.
The court in National Legal Services Authority (NALSA) v. Union of India and Ors recognised the right of transgender individuals to marry according to their own choice. But, the judgement also emphasized the need to amend the existing marriage laws by the State and the Centre. Till now, the law enforcement agencies have put forth no attempt to recognize the status of third gender marriage in our country. This poses a contemporary social question- Whether the un-amended laws allow transgenders to solemnize and register their marriage?
Current Legal Status of Transgender Marriage in India
The Hindu laws have been moulded to normalize the sanctification of Hindu matrimony and its perspectives in an increasingly perpetual manner. The guardian enactment administering Hindu marriages sets out the fundamental aspects of a legitimate nuptial given under Section-5 of the Hindu Marriage Act, 1955. For the legitimization of a marriage, a crucial point is to decide the characters laced in the marriage. The enactment as of now neglects to define key terms under section- 5(iii) of the Act for example, "bride" and "groom" or the gatherings that establish a legitimate marriage. Section 2(1)(a) of the Act rather characterizes marriage as being relevant "to any individual who is a Hindu by religion in any of its structures or improvements." Despite of the fact that the legal meaning of "marriage" has been set down through various statutes and case laws as a lawful association of a man and woman as husband and wife, but again these terms have not been characterized under any law.
The issue that has regularly been brought up regarding the expressions "man" and "woman," as often as possibly found in any rule or enactment, is that these expressions are hardly characterized, neither in the concerned rule nor in a pre-characterizing code or administrative act that would outweigh all enactment so far as the understanding and significance of the words being referred to are concerned. This resulted in denial of granting of marital status to third gender, being not categorized as man or woman under the provisions of the acts.
The Delhi HC in Naz Foundation v. Govt. of NCT of Delhi, by decriminalising Section-377 of IPC stated that the word “sex” in Article 15 extended to “sexual orientation” and thus, discrimination on the basis of the same amounts to violation of Article 15 of the Constitution. The court also defined the term “relationship in nature of marriage” which includes essential characteristics of marriage such as shared household, monetary arrangement, a carnal affiliation and so on. Thus, the marriages between transgenders are not covered within the ambit of the term “marriage as relationship” which results in denial of various benefits that flow from the sanctity of marriage. Also, the benefits and civil rights available to heterosexual couples are denied to homosexual couples which again violate Article 15 of the Constitution.
The decision in Naz Foundation case was overturned by the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation & Others where the court reinstated Section-377 of IPC. In 2017, the SC in K.S.Puttaswamy v. Union of India held that protection of sexual orientation is the core of fundamental rights guaranteed under Article 15, 14, and 21 of the Constitution. The SC by doubting the correctness of judgement given in Suresh Kumar Kaushal case, referred the matter to the constitutional bench. The five judge bench of Supreme Court in Navtej Singh Johar v. Union of India overruled its earlier decision of Suresh Kumar Kaushal case. The court in this case decriminalized the consensual sexual acts between homosexual partners though the acts of rape, sex with minor and bestiality continue to be an offence under section 377 of IPC.
The landmark case of Navtej Singh Johar however, favoured transgender community by de-criminalising homosexual acts. But the judgement does not recognize the status of same-sex marriage thereby leading to its failure in providing equal rights to the transgender community in India.
The basic yet enamouring question concerning third gender individual's entitlement to marriage can be justified by a broader legal interpretation, most notably by accomplishing the truly necessary change in law as an outcome of the recognition given to the third gender community's in the National Legal Services Authority judgment. As listed above, the absence of lucidity under Hindu personal law notwithstanding the lack of enactment perceiving marriage of third-gender individuals, subjects them to discrimination despite the fact that the Apex Court has perceived their right to equality under Article 14 of the Indian Constitution. Indian laws identifying with matrimony, appropriation, inheritance and various other welfare enactments simply perceive the world view of paired sexes of man and woman which depends on an individual's gender appointed at birth. Yet, it is a defective methodology particularly in the present-day situation where third gender rights have been perceived universally.
The Yogyakarta Principles, which are a set of ideologies of international human rights law according to sexual orientation and identity, address a wide scope of human rights and their application to issues of sexual orientation and identity. These standards emphasize the need to incorporate understandings and revisions to enactments in order to assure fairness and non-discrimination based on sexual character or sexual orientation.
Furthermore, it is evident that all laws relating to registration and solemnisation of marriage are related to marriage between heterosexual couples. These laws are simply silent on providing legal status to the transgender marriages in India. Globally, many countries have recognized the status of transgender marriage e.g. South Africa, Brazil, Argentina, etc. It’s high time for India to amend the statutory laws with regards to granting of legal status to transgender marriage. This will result in prevalence of equality to all the citizens as guaranteed under the Constitution of India.