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Supreme Court's ruling on transgenders upholds the dynamic nature of Indian courts

Deepak Kumar


The recent Supreme Court ruling in the National Legal Services Authority vs. Union of India, recognising the rights of transgender community and considering them as third gender other than male and female is the latest such decision reaffirming dynamic view of the court in effectively producing significant social reforms in the country.

The other two recent judgements that form a series of dynamic action taken by the apex court of India are commuting death penalty to life imprisonment of 11 convicts on the ground of undue delay in deciding about their mercy petition by the President, and upholding the disqualification of Members of Parliament and Members of Legislative Assemblies from contesting election from the day of being convicted for any crime or corruption charges.

These rulings restore faith in the judiciary's ability to protect the rights of the minority and neglected sections of the society on premise of basic rights to equality enshrined in the Constitution of India and an attempt to keep a check on the criminalisation of politics.

Recognising the rights of the convicts, under-trials and minorities group by adhering to the rights guaranteed to them under the Constitution, puts the judiciary on a high pedestal of protecting and promoting human rights that one is entitled to without any discrimination of caste, colour, gender, religion and language.

The judiciary's image that was in tatters after it upheld the constitutional provision of Article 377 that criminalises homosexuality or unnatural sex got a fillip in the ruling in the favour of transgender.

The long fought battle against ideological and social construction of sexuality has gained solid ground after the courageous and dynamic judgement of the SC favouring the recognition of transgender identity creating ground for their emancipation. The ruling will go a long way in determining the societal structure and acceptance of transgender in every walks of the society and not neglected any more.

Thanks to the ruling they can now access better education, have voting rights and better job opportunity, among others. Also the most important thing this ruling has brought in my opinion is that somewhere it now forces people to think about before a child is being rejected at birth for not being either a boy or a girl.

Against the criticism leveled by the proponents of constrained court view that courts cannot generally produce social reforms due to ?the limited nature of constitutional rights, the lack of judicial dependence, and the judiciary's inability to develop appropriate policies and its lack of powers of implementation?, the dynamic court view holds that courts can be effective producers of significant social reform and they can be more effective than other governmental institutions in producing significant social change (Rosenberg's The Hollow Hope ).

Undoubtedly, the SC ruling in transgender's case upholds the dynamic nature of courts in India.



AuthorDeepak Kumar
Date21 April, 2014
CategoriesIndia,Society and Culture

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