Queer lives cannot be adjudicated on without being represented in the administration of justice, both as lawyers and judges, argues Rohin Bhatt.
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"THE Constitution is not for the exclusive benefit of governments and states… it also exists for the common man, for the poor and the humble … for the butcher, the baker and the candlestick maker."
Thus said Justice Vivian Bose in his judgment in Bidi Supply Co. versus Union of India.
This has been the philosophy that underlies much of the work that I do inside and outside the courts.
But there have been two recent instances that have shaken me to the core and perhaps added to the doom and gloom that surrounds being a queer lawyer in this country.
Courts often become a site of violence and discrimination against queer persons themselves, instead of being dispensers of justice.
First was Justice Pankaj Jain of the Punjab and Haryana High Court. The issue before the court was a same-sex couple seeking protection from violence from their family.
“Courts often become a site of violence and discrimination against queer persons themselves, instead of being dispensers of justice.
These are routine petitions which come up before the court. The job of the court is to simply analyse whether there is a real and imminent threat to the life and limb of the couple, and if it finds that there is such a threat, they are given police protection.
When the petition in question came up before Justice Jain, he threw the file and said, "Take this immoral thing back where it came from," a report by Live Law noted.
When the petitioner's lawyer interjected, he retorted, "Madam I don't prescribe to the theory that constitutionality and morality are different."
It was wholly inappropriate for a judge to comment on queerness being immoral, or unconstitutional.
The Supreme Court of India, which is the final arbiter of constitutionality in this country, has already adjudicated the rights of queer couples to love freely. That judgment is binding on the judge, for he has to do justice without, "fear or favour, affection or ill-will", and has to "uphold the constitution and the laws" according to the oath he took when he assumed office.
The second report was from Maharashtra, where M.B. Lambe, district judge and additional sessions judge, Pandharpur, while passing a bail Order against a transgender petitioner noted, "It is well known that transgenders harass the people demanding money at public places, public functions, marriages, funeral and inaugurations.
"The people walking on any street cannot escape confrontation with the transgenders. The transgenders are getting bolder by the day and rowdier and nastier.
“It was wholly inappropriate for a judge to comment on queerness being immoral, or unconstitutional.
"A physical touch they do which is bothersome. They try to block ways of the people and try to snatch money or purses that too getting close physically which is intimidating.
"Even they hurl abuses and shower curses on those who refuse to give money. The safety of the public is at high risk at every public place because of the transgenders. Therefore, fear or hatred for transgenders is not without a reason, for men it is worst."
I do not want to comment on the merits of the case, for I am not aware of the facts. I have only seen the Orders. But, such arguments, aimed at stereotyping and demonising the whole community by a judicial officer, is worrying.
While overturning the Order, Justice Madhav Jamdar of the Bombay High Court noted, "Such stereotypical and generalising observations regarding the behaviour of the transgenders is uncalled for. Transgenders are citizens of this country. Article 21 of the Constitution of India protects the right to life and personal liberty of all citizens. The right to life includes right to live with dignity."
There are a couple of things that I must note at this juncture: this piece is not aimed at a particular judge, but merely to point out larger systemic issues and biases that plague our judiciary.
I am cognisant of the fact that judges do not drop from the skies and are fallible human beings who have their own biases. But should personal beliefs cloud the decision-making of a judge?
In my humble opinion, they should not. Justice Anand Venkatesh from the Madras High Court has been a sterling example of someone who has been a trailblazer for queer rights in the country by converting a habeas corpus case by a queer couple into a continuing mandamus.
He has noted in one of the Orders that he held biases against queer couples. He undertook counselling sessions with a psychologist and overcame his biases.
On November 26, 2022, the Supreme Court e-Committee released a sensitisation module for the judiciary on the LGBTQIA+ community. The module, inter alia, dealt with discrimination, the use of appropriate terminology, increased vulnerability of transgender persons, etc.
One thing that the module notes is that "authorities must acknowledge that members of the LGBTIQA+ community face several structural barriers that lead to their marginalisation in both law and society. This understanding of social, economic and cultural barriers must influence how the authorities approach procedural and substantive law in cases involving LGBTQIA+ people" and prescribes a protocol for adjudicating cases for LGBTQIA+ lawyers.
Both Orders, of the district judge as well as the high court, fail on the test of inclusive language. Transgender is an adjective and not a noun. The correct phraseology to use is transgender persons.
“Transgender is an adjective and not a noun. The correct phraseology to use is transgender persons.
"Ignorance is no justification for normalising any form of discrimination" said Justice Anand Venkatesh in one of his Orders.
It is time that queer affirmative judicial adjudication is taught in our judicial academies not just to district and high court judges, but also to Supreme Court judges, and the modules issued by the Supreme Court are also prescribed to be taught in our judicial academies and given wide publicity
Queer judges should be appointed at all levels: the district courts, the high courts and even the Supreme Court.
Queer lives cannot be adjudicated on without being represented in the administration of justice, both as lawyers and judges. That is the only way that truly equal citizenship for queer persons that Navtej Singh Johar spoke of can be realised.