This text was initially published on the occasion of Manufacturing of Rights a pluridisciplinary colloquium in Ashkal Alwan, Beirut, 2015.

CASE #7

Date: 2013–2014
Location: India

The National Legal Services Authority (NALSA) v. Union of India was a decision of the Indian Supreme Court recognizing transgender persons as full citizens of India, delivered in 2014. It was based upon a public interest litigation filed by NALSA, who though not directly affected, sought to represent the concerns of the hijra community. Hijra activist Laxmi Narayan Tripathi filed an intervention in this case.

The key debate the court engaged in was on the nature and extent of discrimination suffered by the transgender community in this case and the need for legal redressal. After considering the evidence of discrimination in
a sweeping judgment, the Court recognized the right of the transgender community to equality, non-discrimination and expression.
What was surprising was that this sweeping recognition of the rights of the transgender community by the court in 2014 followed upon a decision of the Court in 2013. In Suresh Kumar Koushal v. Naz Foundation the Court upheld the constitutional validity of the anti-sodomy law provision, Section 377 of the Indian Penal Code. In Suresh Kumar Koushal the court proceeded to read LGBT persons as nothing more than the sum of their body parts and in effect refused to recognize LGBT persons as persons deserving of constitutional protection.

It might be worth asking what accounted for the strange difference between the Court expressing empathy for transgenders in NALSA and contempt for LGBT persons in Suresh Kumar Koushal. Is the difference due to the perception of transgenders and, in particular, the hijra community as a part of Indian culture? Did the Court perceive the hijra community as deserving of sympathy as compared to the gay and lesbian community who were seen as somehow alien to Indian culture and lacking in the qualities that could call forth judicial empathy? Was the NALSA decision more along the lines of granting citizenship rights in which the judges did not have to deal with the right of sexual intimacy? Was the decriminalizing of forms of sexual intercourse at the heart of Koushal impossible for the judges to contemplate? This presentation will contextualize the NALSA and Koushal judgment within the framework of the Indian Constitution as well as ask questions as to what accounted for the relative success of NALSA as compared to Koushal.