Author: Harsheeta Rai Sharma, Student at Rajiv Gandhi National University of Law, Punjab.
“The constitution is a dynamic document, having the primary objective of establishing a dynamic and inclusive society.”
-CJI Dipak Misra,Navtej Singh Johar v. UOI
The Directive Principles of State Policy (DPSPs) are a set of normative principles to be followed by the State or the ruling government in the course of its legislative functioning. Enshrined in Part IV (Articles 36 to 51) of the Indian Constitution, these can be defined as the fundamental objectives that need to be achieved by the State while making laws so that it upholds the spirit of the Preamble and ensures the highest degree of public welfare. The Constitution makers borrowed the concept of Directive Principles of State Policy from the Irish Constitution. Some of the examples of these guiding principles include securing a uniform civil code for the citizens, organizing village panchayats, making progressive provisions in the domains like agriculture, industries, animal husbandry, etc. As a matter of fact, there can be no accurate litmus test to check the extent of progressive actions taken by the government but these objectives act like beacon-lights or signals to direct the State towards doing ‘right’.
On the recommendation of Dr. B. N. Rao, Part IV of the Constitution was made non-justiciable in nature in contrast to which Part III was made justiciable. Article 37 highlights that Directive Principles of State Policy cannot be enforced by proceeding to the court since they are simply meant for morally just governance.
STATUS OF LGBT COMMUNITY IN INDIA: A BRIEF DESCRIPTION
Historically, the Lesbian, Gay, Bisexual and Transgender (LGBT) community has faced immense exploitation due to the conservative stigmas and lack of awareness in India. Their social status was watered down to that of the untouchables. The first major milestone in the journey of empowerment of transgenders was in 1990. On May 17, 1990, the United Nations declassified homosexuality as a mental disorder in the 10th revision of International Statistical Classification of Diseases and Related Health Problems (ICD). The first documented protest for gay rights in India was organized in 1992 by AIDS Bedhbhav Virodhi Andolan (ABVA). Moving fast forward into the recent years, the landmark judgement of NALSA v. Union of Indiaplayed a pivotal role in granting rights and freedom of the LGBT community. It stated that nonrecongnition of rights of all kinds of Transgender Community, including Shiv Shakhtis, Kothis, Hijras, etc., was a blatant violation of their Fundamental Rights under articles 14, 15, 16 and 21 of the Constitution. Then, in 2018, through another ground-breaking judgement of Navtej Singh Johar v. Union of India homosexuality was decriminalized in India. In the present scenario, multilateral efforts to uplift the TG community have now gained momentum.
JURISPRUDENTIAL ANALYSIS IN LIGHT OF RAWLSIAN PHILOSOPHY
Article 38 of the Constitution recognizes that social order and equality in terms of status, facilities and opportunities is the key to welfare of the people. It is further segregated into two parts. The former part recommends the State to positively ensure welfare through a stable and just social order. The latter part demands for bridging the gap between different individuals and groups as a measure of achieving such welfare. To quote this provision –
Article 38(1) : “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Article 38(2) : “The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
Article 39A, on the other hand, aims to establish and maintain equal justice in the State.
Rawlsian philosophy also emphasizes on establishing such equality and justice as the foundation of the social contract between the State and its people. John Rawls was a modern political philosopher in America, gave the concept of ‘Veil of Ignorance’ in his book A Theory of Justice (1971). Polis, according to western philosophy, is run by a social contract between the subjects and the ruling authority. Rawls elaborates that a social contract has no locus standi when the people formulating it are prejudiced due to their religious, racial, ethnic and other kinds of socially constructed diversity. Hence, he opines that the unequal identities of people should be hidden inside the veil of ignorance while taking any legislative actions so that everyone stands at the same levelled pedestal. This approach shall promote rational decision-making on humanitarian grounds and hence, go a long way in promoting the principles of natural justice. This paradigm can be further extended to natural parameters such as sexuality, which is also subjected to social prejudices, stigmas and discrimination.
However, equality on totalitarian terms is not possible. Rawls also recognizes this and goes on to suggest that there must be inequalities in any social framework but those inequalities are justified upto the extent that the best efforts are made for the upliftment of the most deprived sections. Women have a history of inferior status, discrimination and exploitation at the hands of patriarchy in India. Rights of the LGBTQIA+ community were not even legally identified until the historic NALSA v. Union Of India emboldened their rights and freedom. Although this sensitive issue has gained a major toehold in the Indian society through frequent deliberations, its inclusion in public policies has been abysmal. Consequently, it is an undeniable moral duty of policy makers of the State to ensure gender inclusiveness when it comes to policy-making. They must harmoniously modify the existing policies with regards to the interests of the disregarded.
LACUNAE IN THE DPSPS WITH RESPECT TO GENDER INCLUSIVENESS
Article 39 (a) of the Constitution envisages that the citizen, ‘men and women’ equally, have the right to an adequate means of livelihood. An intriguing observation of this provision is that the State is obligated to maintain gender equilibrium between males and females when it comes to enjoying equal right to adequate means of livelihood. Article 39 (d) demands for equal pay for ‘both men and women’ and part e of the same Article provides “that the health and strength of workers, men and women, and the tender age of children are not abused.” However, gender has been given a ‘binary’ dimension here with no inclusion or even mention of transgenders. This is sad but understandable owing to the timeline of the formation of these principles. But this does not obviate the need to bring about positive changes in these objectives because Article 14 of the Constitution guarantees right to equality to all.
CONSTRUCTIVE MEASURES TAKEN FOR THE WELFARE OF LGBT COMMUNITY
Inspite of no explicit mention in the DPSPs, the government has managed to work equitably for the interests of the transgenders, or rather, we can say, they have embarked on this road. In December 2018, a bill was introduced in the Parliament to remove the ban on LGBT Community from joining the defence services and hence accommodate transgenders in the Army, Navy and Air Force. A new legislation in 2019 allows transgenders to undergo Sex Reassignment Surgery and change their sexual identity. In 2019, Prime Minister Narendra Modi also appealed to the companies and enterprises to provide more jobs to the LGBT community and also ensure a safe working environment for them. Many companies like Godrej, IBM, etc. have already done it.
Transgender Persons (Protection of Rights) Act, 2019 is an important and appreciative step towards policy making for the welfare of the much oppressed community. The Act gives an umbrella definition of a transperson as someone whose gender does not match the one assigned at birth. This Act outrightly prohibits discrimination against them in a plethora of domains, like education, employment, healthcare and other services.
Concludingly, the rainbow community has started gaining recognition, respect and reverence only lately, after the recurrent efforts of millions of people. Now, it is the moral responsibility of the government of India and all other nations to open up the old books of law and governance, clean them off the dust of conservatism and stigmas, and change the socially oppressive and unjust laws by addition and subtraction. The process has already begun. Many existing laws and policies are being reconsidered for effective inclusion of this community in the welfare schemes. It is high time that the outdated conservative notions are now shunned for a brighter future for all. Hence, it would not be wrong to say that the Directive Principles of State Policy should also be amended to motivate and guide the lawmakers to strive for the empowerment and inclusion of transpersons. This way, their allegedly queer sexual behaviour shall also come under the Rawlsian veil of ignorance so that there can be decision-making on rational lines, clear from such discriminatory walls.
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
 The ICD-10 classification of mental and behavioural disorders: clinical descriptions and diagnostic guidelines. Geneva: World Health Organization, 1992, https://www.who.int/bulletin/volumes/92/9/14-135541/en/
 Indian consti., Art. 38 (1).
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
 Indian consti., Art. 38 (1).
 Indian consti., Art. 38 (2).
 Supranote 3.
 Indian consti., Art. 39.
 Web Desk, Modi govt bats for more jobs for LGBT community members, the week (Jul. 18, 2019, 5:00 PM), https://www.theweek.in/news/india/2019/07/18/modi-govt-bats-more-jobs-lgbt-community-members.html.
 Anonymous, All about the Transgender Persons Bill, The Hindu (Nov. 30, 2019, 11:33 AM), https://www.thehindu.com/news/national/watch-all-about-the-transgender-persons-bill/article30122229.ece#:~:text=The%20Transgender%20Persons%20(Protection%20of%20Rights)%20Bill%2C%202019%20was,housing%2C%20healthcare%20and%20other%20services..