The Supreme Court's nine-judge Constitution Bench, during the Sabarimala review hearing on 9 April 2026, affirmed that Articles 14 and 15 of the Constitution are "active guards against discrimination" and that any classification based on sex must meet the strictest scrutiny. The bench, headed by Chief Justice Surya Kant, observed that "biological traits or gender identity cannot be used as a tool for exclusion," a formulation with immediate implications for the recently enacted Transgender Persons (Protection of Rights) Amendment Act, 2026.
Background
The observations arose during the broader Sabarimala reference hearing, where the nine-judge bench is examining the intersection of equality rights, religious freedom, and PIL jurisdiction. While the primary focus of the reference is the permissibility of gender-based entry restrictions at places of worship, the bench's discussion on Article 15 extended to the general principle of sex-based discrimination in Indian law.
The context is significant: President Droupadi Murmu signed the Transgender Persons (Protection of Rights) Amendment Act, 2026 into law earlier this year, which controversially replaced the self-identification framework for gender certification with medical boards, drawing criticism from transgender rights organisations as "bureaucratic gatekeeping."
Key Observations
The bench made the following observations during proceedings:
Strict scrutiny standard: The Court stated that any classification based on sex under Article 15 must face the "strictest scrutiny of the law," the highest level of judicial review applied to suspect classifications.
Biological traits not dispositive: The bench observed that "biological traits or gender identity cannot be used as a tool for exclusion," suggesting that legislation requiring biological or medical determination of gender identity may face constitutional challenges.
Active protection mandate: Articles 14 and 15 were characterised as "not mere placeholders but active guards against discrimination," imposing an affirmative obligation on the State to prevent and remedy discriminatory practices.
Employment discrimination: The bench specifically labelled discrimination against transgender individuals or women in employment as discrimination contrary to the constitutional scheme.
Implications for Practitioners
These observations, while not yet part of a binding ratio, carry exceptional weight given the nine-judge bench composition. Constitutional lawyers should note that the "strict scrutiny" formulation for sex-based classifications, if adopted in the final judgment, would establish the highest standard of judicial review for any legislation that differentiates on the basis of sex or gender identity.
For practitioners advising on challenges to the Transgender Persons Amendment Act, 2026, the bench's observation that biological traits cannot serve as exclusionary tools provides a potential constitutional foundation for challenging the medical board certification requirement. The Act's reliance on biological determination rather than self-identification appears to be in tension with the bench's articulated principles.
Employment lawyers should note the explicit reference to workplace discrimination against transgender individuals, which could inform future litigation under both constitutional provisions and the Transgender Persons (Protection of Rights) Act.
Frequently Asked Questions
Are these observations legally binding on lower courts?
No, these are oral observations during an ongoing hearing, not part of a final judgment. However, observations by a nine-judge Constitution Bench carry significant persuasive weight. Once the bench delivers its judgment, the ratio decidendi on Article 15 will be binding on all courts in India as the authoritative interpretation by the largest bench to address this question.