A historic moment for third gender, says Rajeev Dhawan

Justice K. S. Radhakrishnan's judgment in the National Legal Services Authority ( NLSA) case, for Justice Sikri and himself, recognises hijras and others as India's third gender to give a new dimension to the concept of equality.

All persons are not equal. All cannot be treated with the same yardstick of equality. This judgment creates a protective classification in favour of the " third gender" on the basis of the facts of their physicality, the oppression they are subjected to, the effect on their individual psyche and the ' mindset' of society towards them.

The opening sentence of the judgment says it all: " Seldom, our society realises or cares to realise the trauma, agony and pain which members of the transgender community undergo, nor appreciates the innate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change."

SC judgment

Judgments like this remind us that India is full of " cruel absurdities", strong prejudices, ostracism, deprivation of dignity to its citizens and gratuitous cruel treatment for its own sake. The world of the oppressed is marginalised.

Scavenging is still done with hands. Khaps humiliate, maim and kill. The oppressed are below the radar. They find expression in statutes of law.

They don't figure in election manifestos. They are not part of any development agenda.

Our constitutional law on suffering is invidious, full of silences to obscure injustice and pain. The hijra judgment breaks fresh ground.

The judgment goes a long way to establish and recognise that once sexual orientation is accepted as a distinct category, it should be humanly protected, not ostracised and criminalised.

The simple recognition of hijras as a separate classification under the equality (article 14) dispensation of the Constitution should be easy and obvious. Arguments that our ancient texts recognised them are facetious but useful to convince fundamentalists. But ancient texts recognised many categories and groups, only to make them suffer. Recognition of hijras and others as a third gender is a legitimate constitutional classification on grounds of equality. This is the easier constitutional first step. Yet

when we contrast this with the gays decision in the Naz case (2013), we find different judges refused to treat gays as a separate category worthy of constitutional protection, and happily found that what the gays do as a physical preference and expression of love, was obnoxious and to be criminally prosecuted.

Whether the Naz review and curative in the gay case will yield support from the hijra judgment may depend on judges. A pity that Justice Radhakrishnan is retiring; a gift that Justice Sikri who is one of our best will still be there.

The hijra or TG judgment treats transgenders ( TG) as historically as distinctly identifiable.

In this judgment there is a subtle reference to the Khairati case (1994) where a transgender was acquitted of the anti- gay provisions. But while in the present TG case, the judges kept clear of redeciding the " gay" decision in Naz (2013), Justices Radhakrishnan and Sikri left a marker for the future by making it clear that "(g)ender identity refers to each person's deeply felt internal and individual experience of gender which may not correspond with the sex assigned at birth including the personal sense of the body ( including) modification of bodily appearance". This verdict is fundamentally different from the Naz case and the antithesis of the latter. The TG judgment can be the basis for destroying the foundation of the Naz judgment.

The judgment goes a long way to establish and recognise that once sexual orientation is accepted as a distinct category, it should be humanly protected, not ostracised and criminalised.

Earlier English courts applied the chromozonal, gonadal and genital tests, rejecting surgical changes as a basis to recognise TGs ( Corbett ( 1970; Tan ( 1983)). But this did not find favour with New Zealand and Australian courts ( Otahuhu ( 1995: NZ), Kevin ( 2001: Australian)) or the European Court ( Christine ( 2002).

Discrimination

Invoking International covenants, and legislation in many countries, the TG case rightly took the view that the test was not just physical but also psychological to include those who felt they were women trapped in male bodies. But winning the battle for recognition of TG as a constitutionally protected group does not belie the fact that TGs are vulnerable vulnerable to " harassment, violence, sexual assault in public spaces, at home and in jail molestation, rape and forced anal and oral sex... and extreme discrimination in all spheres of society."

Compassion

Our present Indian society is misguided in its belief that it is enough that ' India is shining' or ' Modi is shining' or that business- sponsored ' growth' determines who we are. Indian society in 2014 is angry, greedy, bad tempered, discriminating and violent. We can see it in our lives, on the streets, in houses and places of work. Our Constitution is not just a taxonomic identification of categories.

If the Constitution is to shine as an instrument of governance, its most fundamental principle has to be compassion.

Justice Radhakrishnan and Sikri's judgment restore compassion to its prime place in Indian governance. Our society is imbricated with cruelty. It is said " Justice, justice you shall pursue." The first justice comes from law; the second justice is compassion. A constitution without compassion is arid and unworthy. Perhaps, the TG judgment will veer our divided society and prejudiced selves in the right direction.

The writer is a Supreme Court lawyer