Newspapers have been reporting about an application for clarification filed, it appears, by the Ministry of Social Justice and Empowerment with the Supreme Court about the NALSA judgment on transgender rights. Here is the full text of that application, and here is a very useful and short summary of its content. The reflections below follow from that summary.
Any move that makes the inclusion of trans-men, non-hijra trans-women, and genderqueer/trans folks in the SC judgment explicit is welcome. Many had written to the Ministry of Social Justice and Empowerment seeking this, following the MSJE report and the judgment. The principle of self-determination of gender identity without psychological and medical examination or surgery is upheld and that remains critical.
This part of the application is separate from the clarifications sought on how to operationalise a quota, for whom, and whether the National Commission for Backward Classes (NCBC) should be involved. So is this a tactic to evade or delay? It’s hard to tell. The more public the debate on criteria and inclusion for something like reservation, the better it is. The question is: should this debate be had within the executive (in both the centre and the states), or in the SC? The latter is a thunderously opaque institution. What goes in rarely comes out the same way and the Bench that delivered the transgender judgment no longer exists given Radhakrishnan’s retirement. It’s very unlikely for the SC to change the fundamentals of one if its own judgments, however, and that, in this case, works in our favour. Yet, as always, an element of risk is now in the air. Turning to the authority of the Court to clarify returns to it its discretionary powers which, as we well know, it has the potential to use fairly arbitrarily.
Like always, multiple channels will have to remain in play: guarding against a dilution of the judgment that a return to the SC could always entail (what if they narrow and dilute, instead of open and strengthen?) while simultaneously seeking maximum engagement with the central and state executive as boards and committees to implement the judgment are formed in different states. It is the states that are the real space of action – their practices could inform both the centre’s stance and the real life of this judgment in the everyday lives of trans people. What must be safeguarded across different states is the judgment’s recognition of vulnerability and marginalisation faced by many transgender folks, even as the complex debate of how exactly to address this marginalisation through reservations continues. In other words: the debate on implementation must not be allowed to question the principle itself. It doesn’t seem that this appeal seeks to challenge that point and that’s positive, yet policy-based equity measures have historically been undone precisely in this way.
Thinking out loud then, I would take a bit of a leap and say that the MSJE could have (should have?) taken calls on the clarifications it seeks itself on the basis of its report and its authority as the nodal agency tasked with implementing the judgment on behalf of the executive. It could have created a wider process in which to do so, engaging with stakeholders. It would have been a bold move, one that moved us forward, protected the ethos and intent of the judgment to expand and strengthen rights, and was in line with the Ministry’s own report on transgender rights. It has chosen not to and sought the support of the SC to fire off their shoulders. Entirely possible that in the murky world of central government politics that they need this support to fight their own battles. Let’s hope they get it. Yet while we do wait, let us also prepare to hold onto and defend the spirit of the judgment’s dual recognition of rights and vulnerability.