Bombay High Court
X vs The Dean on 25 April, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-OS:3587-DB X v The Dean Academic Affairs Director's Office &
Anr
24-oswpl-9961-2023-J.doc
Gaikwad RD
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 9961 OF 2023
X ...Petitioner
~ versus ~
1. The Dean,
Academic Affairs Director's Office,
Tata Institute of Social Sciences, VN
Purav Marg, Deonar, Mumbai.
2. State of Maharashtra,
Directorate of High Education, Central
Building, 3 BJ Medical Board, Agarkar
Nagar, Pune 411 001. ...Respondents
A PPEARANCES
for the petitioner Ms Rebecca Gonsalvez.
for respondent no.1 Mr Rakesh Singh, with Heena
Shaikh, i/b MV Kini & Co.
for respondent Mrs PH Kantharia, Government
No.2-state Pleader.
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X v The Dean Academic Affairs Director's Office &
Anr
24-oswpl-9961-2023-J.doc
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 25th April 2023
JUDGMENT (Per GS Patel J):-
1. The Petition is simple and it is clearly one supported by every
recent decision of the Supreme Court regarding the rights of those
who have traditionally been held to be marginalized. The decisions
of the Supreme Court direct us towards greater inclusiveness and
acceptance of individuality and individual traits. These are not to be
compromised because of some bureaucratic requirements.
2. Prayer clauses (a) and (b) in the Petition read thus:
"(a) for a writ of Mandamus or a writ, order, or direction
in the nature of Mandamus directing the Respondent No. 1
to change the Petitioner's name and gender in their
education records, and re-issue the Petitioner's education
documents including the grade card, degree certificate,
migration/transfer certificate, bonafide certificate and any
other required documents to the Petitioner in their chosen
name and gender;
(b) for a writ of Mandamus or a writ, order, or direction
in the nature of Mandamus directing the Respondent No. 1
to suitably modify the form available to alumni at
Alumni_Application_From_for_Transcript Feb_2022.pdf
(tiss.edu) to make if flexible to include requests by alumni
for change of particulars such as name and gender in their
education records and documents;
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3. The facts are not contentious. In 2013, the Petitioner,
described as 'X' in this Petition received an MA in Development
Studies from the Tata Institute of Social Sciences, the 1st
Respondent, in a certain name and describing her gender to be
female. In 2015 the Petitioner adopted another name, self-
identifying as transgender. She swore an affidavit to that effect in
November 2018. The Petitioner filed Writ Petition (L) No. 1200 of
2019 for directions for publishing the Petitioner's change of name in
the gazette. This Court made an order on 16th April 2019 following
which the Petitioner's change of name was gazetted. Copies of the
order and the gazette are annexed. In 2022, the Petitioner decided
to change the Petitioner's name again, now for numerological
reasons. An affidavit was prepared in August 2022 to that effect.
This was gazetted in August 2022 and other documents such as the
PAN and Aadhar Cards were updated.
4. The Petitioner had as long ago as 2019 desired to study law
but various reasons, including the delay in gazetting and then
COVID pandemic and lockdown, delayed that plan. The
Petitioner's last grade card, degree certificate and other documents
were issued by the 1st Respondent in the previous name with the
gender female. The Petitioner submits that the Petitioner is entitled
to a re-issuance of these documents in the current name and with
the current gender. The Petitioner made a representation dated 6th
January 2023 to the 1st Respondent. A reminder followed on 9th
February 2023. There was no response.
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5. The Petition points out that there is in fact no process on the
1st Respondent's website to deal with a situation such as this, i.e.,
for a change of name and gender and the re-issuance of documents.
This is particularly true for cases of transgenders. Despite the
decisions of the Supreme Court in National Legal Services Authority
v Union of India & Ors,1 the 1st Respondent and other institutes have
not made the required arrangements.
6. We do not believe that there is any possible answer to this
Petition at all. This is not a case of there being any conceivable
adversary. This is a case of a denial of a human being's self-identity
and self-identification. That cannot be done and cannot be
permitted. Nor can an institute be permitted to force upon the
Petitioner a name, identity or a gender that the Petitioner has
chosen to reject in preference to some other.
7. The even stranger requirement that we are told across the Bar
and which is on affidavit is that certain previous qualifications and
educational documents are required. But this is bound to send
everything into a tailspin because those documents, for example, a
school leaving certificate or a birth certificate will not reflect the
changes that are now being sought. In fact, the Affidavit says that
the Petitioner should make all those changes first before coming to
the 1st Respondent. That is not even remotely tenable. It would be a
manifest injustice and a complete denial of fundamental rights
including the right to privacy and the right to dignity, covered by
Article 21 of the Constitution of India, to refuse the Petitioner relief
1 (2014) 5 SCC 438.
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or to accept what the 1st Respondent says that all previous records
must now be updated.
8. The approach of the Affidavit is quite simply wrong. It fails to
recognize that questions of identity, self-identification and gender
perception do not happen at a biologically definable point in time.
These are matters of self-realisation without predictable time
frames. That does not mean that every person who, in exercise of
these Article 21 rights, desires the necessary changes to be made
must be put through the additional trauma of having to get reissued
every single document from birth onwards. What is required is a
recognition and acknowledgment of the rights that the Petitioner
invokes. The insistence by the 1st Respondent on getting other
records changed and on a production of previous documents is not
merely obstructive. To our mind, it is in and of itself nothing short
of a denial of the Petitioner's fundamental rights under Article 21.
What has to be acknowledged is a movement forward in point of
time and in life, that is to say, what is required to be provided to the
Petitioner from a particular point onwards without having to go back
in time.
9. We expressly find, acknowledge and record in this Petition
that the Petitioner has voluntarily self-identified as transgender in a
name other than that which was given at birth. We also acknowledge
that at birth the gender of the Petitioner was noted as female. This is
all that is required to be done and so far as the Petitioner's past is
concerned. For the rest, we see no impediment to the grant of relief
in terms of prayer clause (a), and we would be entirely remiss if we
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did not issue that mandamus. Clearly, the Petitioner has demanded
justice in accordance with law but has not received it. The
mandamus will issue. Rule will thus be absolute in terms of prayer
clause (a).
10. But we also must issue a mandamus in terms of prayer clause
(b) for future cases. There is absolutely no reason why the online
forms on the website of the 1st Respondent and indeed every other
educational institution that is or are subject to our writ jurisdiction
should not have a form for precisely such changes, i.e., noting a
change in name and a change in gender. It is for the 1st Respondent
to make this change on the 1st Respondent's website and for the 2nd
Respondent State Government to issue the necessary instructions to
all similar educational institutions across Maharashtra.
11. Rule is made absolute in these terms. The Petition is disposed
of with no orders as to costs. The necessary documents are to be
issued to the Petitioner within two weeks from today.
(Neela Gokhale, J) (G. S. Patel, J)
25th April 2023
