PM’s call in support of transgenders echoes SC verdicts

Prime Minister Narendra Modi’s call to “change the legal system” to give transgender persons their due place in society comes at a time when his government has met repeated verdicts of the Supreme Court to recognise the community as a “socially and economically backward class” with either technical questions or silence.

On March 17 this year, the Supreme Court urged the government to look outside the four walls of caste and recognise other emerging forms of backwardness in society.

Citing the fundamental right of equality of opportunity in public employment, the Supreme Court advised the government to move away from “caste-centric definition of backwardness” and recognise emerging social groups like transgenders for palliative action.

On April 15 last year, through its judgment in the National Legal Services Authority vs. Union of India, the Supreme Court granted constitutional recognition to transgenders as a third gender to enable them to have a family of their own.

Referring to the April 2014 judgment, a Bench of Justices Ranjan Gogoi and Rohinton Nariman said the apex court’s “recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution is too significant a development to be ignored.”

The March verdict hailed the April 2014 judgment a “path finder, if not a path-breaker.”

However, the March judgment was met with characteristic silence even as the government chose to counter the April 2014 verdict by asking the Supreme Court to define and enlist “transgenders.”

The Prime Minister’s emotive statement to understand the apathy faced by the transgender community and the need for the government to change its outlook towards them might signal a course correction within the executive apparatus.

After all, the Supreme Court’s 2014 and 2015 judgments are also seen as conscious attempts to rid itself of the shadow cast by its December 2013 verdict, which upheld Section 377 of the Indian Penal Code criminalising consensual sex between two adults of the same sex.

In the 2013 verdict, the Supreme Court had reasoned that lesbians, gays, bisexuals and transgenders formed only a “miniscule fraction” of the country’s population. It said that there was no need to axe the penal provision as only less than 200 persons were prosecuted under Section 377 IPC in over 150 years of its existence.