The Kerala High Court tackled similar issue of social orthodoxy in two cases, but delivered divergent orders.

Two orders by the same judges of the same court triggered completely different set of emotions. One made me happy and hopeful about the supremacy of the Constitution of India, the other appeared to be a colossal act of injustice, upsetting me deeply. Both the cases examined an individual’s rights and freedom to make choices.

The good part first. The Kerala High Court recently upheld the right of two adults to live together outside wedlock despite strong objections by the woman’s parents. “The constitutional court is bound to respect the unfettered right of a major to have live-in relationship even though the same may not be palatable to the orthodox section of society,” the court said.

The idea that two consenting adults can marry each other against their parents’ wishes is still a radical thought in most parts of India.

This is why the order made headlines, and I am sure people on both sides of the debate must have been surprised by it. The judgment is also significant because it, in a way, dispels the longheld notion in society that what parents think is right for their adult children takes precedence over what the law or the Constitution says.

The judges behind this order also heard a habeas corpus petition filed by a woman who has railed against her 25-year-old son’s decision to identify as atransgender woman. According to a report on livelaw.in, the woman complained to the Kerala High Court that her son had been behaving differently under coercion of what she described was a transgender gang. She claimed the group was not allowing her son to return home.

The mother had also filed a complaint with the police, who refused to register a case of illegal detention against the group. They registered only amissing person’s case. The 25-year-old then appeared in a magistrate’s court, declaring the preferred identify of a transgender woman and sharing the decision to not live with the family. The magistrate released the person. It’s clear that the police and the magistrate did their job without succumbing to societal pressures.

Sadly, the Kerala High Court saw the case differently. According to the livelaw. in report, following the mother’s petition, the 25-year-old appeared in the high court and re-confirmed the chosen identity and the decision to live in the transgender community out of free will.

Instead of ending the matter there, the high court ordered a psychological and physical test. This is an unconstitutional act. There is no provision in the Constitution that gives any power whatsoever to the high court to do this.

Gender and sex are not the same thing; they are distinct. Sex assigned at birth and a person’s innate sense of self can be very different. It’s tragic that the court believes that a test, psychological or physical, can conclusively determine aperson’s gender.

The most important thing here is that the 25-year-old’s gender is inconsequential as far as the case is concerned: the person is not seeking any government benefits offered to the transgender community.

All the court had to do was determine if the person was acting out of own will while identifying as a transgender woman. Besides, the only purpose of a habeas corpus petition is to ‘produce the body’ and ascertain if the person in question is being held against their will.

In a way, this case is quite similar to the Hadiya matter, in which the court transgressed legal and moral boundaries by enquiring whether Hadiya was under coercion despite her assertions that she was not. The demand for a medical test in the 25-year-old’s case is violative of the Supreme Court’s order which recognised transgender people as athird gender and affirmed their fundamental rights under the Constitution. The apex court’s order also upheld a person’s fundamental right to bodily integrity.

It’s difficult to imagine what the 25-year-old must be going through. It appears that the Kerala High Court has acted as the very orthodox force that it criticised in the case of the two consenting adults. Family is not the core unit of the Constitution. The individual is.

 

https://mumbaimirror.indiatimes.com/opinion/columnists/dushyant-arora/same-judges-different-outcomes/articleshow/64500712.cms

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