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Hindustan Times
30-07-2025
- Politics
- Hindustan Times
Courts and the making of transgender rights
It is inspiring to recall that seven decades ago, Hansa Mehta, a member of the Constituent Assembly, ensured that the phrase 'All men are born free and equal' in the first Article of the Universal Declaration of Human Rights was changed to 'All human beings are born free and equal'. In Hindu mythology, there is an ancient cultural acknowledgment of gender fluidity. Yet, for decades, transgender people simply did not exist in the eyes of the law. They lived, struggled, raised families, danced at births, mourned at funerals, and were part of India's social and spiritual fabric for centuries. Still, they remained on the margins, shunned from society, denied basic rights and targeted for their gender identities. And legally — on school forms, ration cards, voter IDs, and census sheets — they were invisible. Until the late 1990s, voter registration forms did not provide an option beyond male or female, effectively disenfranchising transgender citizens. Public hospitals, welfare schemes, and official forms, all designed around a strict male-female binary, left them without access to essential services. Lacking legal recognition, many were unable to obtain basic identity documents, apply for jobs, or claim protections under existing laws — leaving them vulnerable to poverty, exploitation, and violence. Until April 15, 2014. There are some judicial decisions in India that fundamentally changed the complex calculus of sexuality, power, religion, caste, masculinity, patriarchy, and gender. The Supreme Court's decision in National Legal Services Authority (NALSA) v. Union of India, 2014 stands as one such example. The legal battle began with separate petitions filed in 2012 and 2013 by the National Legal Services Authority (NALSA), the Poojya Mata Nasib Kaur Ji Women Welfare Society, and Laxmi Narayan Tripathi, a leading voice from the hijra (transgender) community — all seeking legal recognition of a third gender. The petitioners argued that limiting legal recognition to binary genders is violative of the Right to Equality, Right to be Free from Discrimination, Equality of Opportunity, Freedom of Expression, and Right to Life or Personal Liberty (Articles 14, 15, 16, 19, 21 of the Constitution, respectively). The Supreme Court responded with clarity and conviction. In a landmark judgment, the two-judge bench recognised transgender individuals as the third gender, who are fully entitled to all legal rights bestowed upon citizens by the Constitution. The Court ordered states to grant legal recognition to transgender people, reservations in education and employment, and offer welfare — an ambitious list of affirmative actions that acknowledged historical harm. Crucially, NALSA's true breakthrough lay as much in recognizing a third gender as in affirming the right to self-identify — a radical move even by international standards. The Court asserted that one's gender does not need to be authenticated by surgery, paperwork, or state verification — and that identity is an inherent aspect of personal dignity and autonomy. Justice KS Radhakrishnan (who was to retire in a month) said, '(…) 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.' Lauded globally as one of the most progressive interpretations of gender rights, the judgment also laid the groundwork for later verdicts like Puttaswamy, 2017 (the right to privacy), and Navtej Singh Johar, 2018 (decriminalisation of homosexuality). With one stroke of the pen, the Court had rejected the dehumanisation of those who do not fit neatly in gender boxes. But reality tells a different story. The Transgender Persons (Protection of Rights) Act, 2019, ostensibly passed in response to the judgment has been widely criticised for requiring certification of gender by district authorities — a clear contradiction of the right to self-identification upheld in NALSA. Critics argue that the Act undermines the principles of autonomy, dignity, and equality established by the Court. Many trans-persons still face barriers to education, health care, and housing. Violence against them remains disturbingly common. Lack of livelihood opportunities means they are frequently forced into prostitution. But NALSA stands out not just for what it changed in the law, but for changing the conversation from control and classification to recognition and autonomy. It reminds us that the Constitution is not a cold document, it is a living promise. And it begins the work of drawing those beyond the binary into the fold of citizenship — not as exceptions, but as equals. Courts have done their part. Now we must do ours. Ashish Bharadwaj is professor & dean of BITS Pilani's Law School in Mumbai. Insiyah Vahanvaty is a sociopolitical writer and author of The Fearless Judge. The views expressed are personal.
Hindustan Times
30-04-2025
- Politics
- Hindustan Times
Remembering women as the agents of history
Women's History Month came and went in India without much noise. In a nation that prides itself on women-led panchayats, goddesses on currency, and women in uniform, the silence was not just absence — it was telling. Why does Women's History Month remain a footnote in India? The question is not merely cultural, but structural. In India, history is not just what is remembered — it is also what is not erroneously erased. The absence of a popular commemorative culture around women's contributions is not for lack of material but because memory here still follows the grammar of power — masculine, monocultural and unitary. There are women freedom fighters we forget until a tweet appears from a government handle. Hansa Mehta, whose contributions to both the Indian Constitution and the Universal Declaration of Human Rights were ground-breaking, barely finds mention in textbooks. Dakshayani Velayudhan — the only Dalit woman in the Constituent Assembly — remains unknown to most. Rani Gaidinliu led armed resistance against the British from the Northeast as a teenager; she has no memorial in the capital. Sucheta Kriplani, who sang patriotic songs in prison and became independent India's first woman chief minister, is a footnote in civics lessons. Tarkeshwari Sinha, among the youngest MPs in the first Lok Sabha and a sharp advocate of socialist reform, rarely features in political discourse today. Beyond politics, other trailblazers too lie buried beneath the weight of selective memory. Anna Chandy, who became India's — and the Commonwealth's — first woman judge in the 1930s, remains absent from mainstream legal histories. Homai Vyarawalla, India's first woman photojournalist, documented the birth of the Republic with a Rolleiflex in hand — yet her name is rarely invoked outside niche retrospectives. From science to tribal resistance, women have shaped the nation in ways both visible and unseen. And yet, our national calendar remembers dates of battles and laws, but not women who waged them — with pen, protest, policy, and sometimes, pistol. Even in the popular imagination, woman as a historical figure remains trapped in the trifecta of tropes -- mother, martyr, or muse. She earns reverence as the mother of a nation, but rarely respect as its maker, critic, or architect. It's easy to celebrate Kalpana Chawla or Mithali Raj. Their achievements are undeniable, marketable, and largely unthreatening. But we don't quite know what to do with the legacies of women like Phoolan Devi, Bhagwati Devi or Captain Lakshmi Sahgal. We ignore them. Or we retell their stories in ways that blunt their politics and smoothen their jagged truths. This absence is not accidental but structural — reflecting a deeper discomfort with women as agents of history, not subjects alone. What would it mean to build a museum of Indian women's political history — of manifestos, speeches, arguments, debates, songs, and jail records? A memorial, not just of stone or sculpture, but of struggle and speech. Imagine walking through a hall lined with Lok Sabha and Rajya Sabha transcripts of women parliamentarians who reshaped debates with precision and defiance. Imagine rooms that echo with protest songs sung by rural women who rewrote sanskar geets — ritual songs of weddings and festivals — into verses of resistance against the British Raj. Jail letters from the likes of Kalpana Datta. Flyers from anti-Emergency campaigns, handwritten petitions of tribal women demanding forest rights, and campaign audio from panchayat elections. Such a place would not be an exercise in nostalgia — it would be a blueprint for justice. It would not only commemorate women's roles in building the republic, it would restore them to the centre of our constitutional and cultural imagination. India doesn't need another statue. It needs a structure of memory. Globally, countries have taken deliberate steps to mark Women's History Month as a cultural intervention. In the US, the National Women's History Museum is federally supported. In Australia and New Zealand, indigenous women's stories are being brought into national memory through memoir, policy, and protest. And yet, India — despite having one of the world's richest and most diverse traditions of women's leadership, imagination, and institution-building — treats its powerful feminine past as peripheral. But it was never marginal. It was elemental. This is the land where the cosmic principle of creation is incomplete without its feminine force — Shiv is shav (a corpse) without Shakti. From temple lore to tantra, from bhakti poetry to matrilineal traditions, Indian civilisational thought did not place the feminine outside of power—it placed her at its axis. Women were not merely resistors of patriarchal structures; they were builders of alternate orders, custodians of knowledge, funders of reform, and anchors of spiritual and political authority. To remember them is not an act of redress — it is an act of return. It is tempting to argue that women's issues should be mainstreamed into every day — not cordoned off to a month. But that argument only works when the everyday is already equal. In a country where women's history remains subterranean — scattered across footnotes, family lore, and fading murals — commemoration must become an act of intention. We must choose to remember, actively and audaciously, until memory becomes culture, and culture becomes justice. We owe our daughters more than representation. We owe them memory. Shubhrastha is co-author of The Last Battle of Saraighat: The Story of the BJP's Rise in the North-east. The views expressed are personal
