Looking forward - 2018: Supreme Court lawyer Gautam Bhatia sees justice prevail

Section 377 will be struck down

The judgement in Suresh Kumar Kaushal vs Naz Foundation, which upheld constitutional validity of Section 377, is in my view, a completely incorrect judgement. Three separate opinions in the privacy judgment recognise that it was wrong. Given that we have a curative petition still pending in the court, I would expect that the moment the petition is heard, Section 377 will be struck down to decriminalise consensual same-sex relationships. I expect it to happen in the foreseeable future. Hopefully, the parliament will listen to the transgender community.

The problematic Transgender bill

The first problem is the definition that describes transgender persons as “partly female or male;  or a combination of female and male; or neither female nor male”. You can’t define the transgender community in the terms of male-female binary; that’s the conceptual flaw. 

The second problem is the requirement that transgender persons submit themselves to a medical examination to be recognised as transgenders. With this, you are going back to the 1970s when the worldwide consensus was that the sexual orientation is a medical issue and not the issue of personal choice. 

The third problem is an absence of affirmative action: begging has been criminalised without providing an alternative. There is no coherent understanding of the kind of families or relationships within which these people can exist with dignity. It goes against the Supreme Court judgement, which clearly states that gender identity is a matter of an individual’s autonomy over fundamental personal choices and not something that can be imposed through a government certificate.

Live broadcast of proceedings for transparency

I don’t know whether it will happen, but it should because it’s the quickest and easiest way to allay the concern that when people live-tweet, they distort information and give the wrong impression. It has also long been a complaint that reporters misrepresent what’s actually happening in the court or make an observation a headline, which has a different slant from what’s actually happening in court. The easiest way to resolve this is by giving out a transcript publicly – a practice seen in the UK and US – or broadcasting it or at least putting out audio recordings of the proceedings. 

A second chance for  death penalty

There was a report released recently by Center for Death Penalty, National Law University (NLU), which carried interviews of former judges on their opinion about death penalty. Overall, there was a consensus on retaining death penalty despite the judge’s explanation to various problems with the way it currently exists. I think it is reasonable to assume that there would not be a radical divergence between the views of sitting judges and those who have only recently retired. While it’s quite unlikely that it will be abolished in the near future, NLU has done some really good work to show that the death penalty is arbitrary in the way it is implied and definitely impacts people based on issues of class, poverty and so on. It  surely deserves a second round of discussion.

More cases to come in the domain of women’s right

Equal rights for women has been an ongoing issue, and will continue to be significant in the coming year. We saw a verdict on triple talaq earlier this year and towards the end of this year, we were engaged in discussing whether a Parsi woman loses her religious identity if she marries a man from a different religion. The case is going to come up in the court next month and will require the court to enter the area of gender equality. Another case is of Sabarimala temple, referred to the constitutional bench last year, that will also explore religious rights of women vs the gatekeepers of religious communities. The coming year, courts will see more cases of similar nature coming up.

Uniform Civil Code in the hands of Parliament

The court was very clear in its judgement that they are dealing with a very narrow question of the legal and constitutional viability of instant triple talaq and wasn’t considering the issue of the Uniform Civil Code. It has also made it clear, on multiple occasions, that the UCC can only be brought by the Parliament. I don’t think the court will take this step, because it amounts to legislation.

Gautam Bhatia is a Delhi-based Supreme Court lawyer and author of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. He writes the Indian Constitutional Law and Philosophy blog, which has been covering contemporary Indian constitutional law for the last four and a half years, and is formally involved in the Aadhar case, which is currently sub judice.