Supreme Court, Trans Amendment Act and a Foucauldian lesson: A weekly round-up on Constitution First

Biopower, as Michel Foucault explained, is the technology by which the modern State ceased merely punishing bodies and began administering them. Some lives were deemed productive, legible, worth investing in, while others were, in his phrase, “let die,” through the quieter violence of exclusion, exposure and abandonment. The Transgender Persons (Protection of Rights) Amendment Act, 2026, which became a law in March, is a near-perfect illustration of this logic in motion.

On Monday, the Supreme Court stayed all High Court proceedings on challenges to the 2026 Amendment Act. Four High Courts in Rajasthan, Delhi, Karnataka and Kerala had been hearing petitions contesting the law’s constitutional validity. They have been stayed, at least until July, while the Supreme Court decides whether to consolidate everything before itself or assign it to a single High Court. 

The Amendment, as The Leaflet has reported, strips the right to self-perceived gender identity from the law. In its place it offers a list, and the trans person, to be recognised, must fit a category the State has written. Foucault would have recognised it immediately as the disciplinary impulse to render the population legible, to produce what he called “docile bodies,” that can be surveilled, counted, administered, and where necessary, corrected.

The petitions that had been filed across four High Courts were voices, multiplied across jurisdictions, representing a distributed, polyphonic challenge to a law made without consultation. The Centre moved to silence that polyphony and told the Supreme Court that “divergent views” among High Courts would be dangerous. The Court agreed, and stayed all proceedings.

But consider what that uniformity forecloses. Gayatri Chakravorty Spivak reminds us that institutions which claim to speak for the marginalised such as courts, parliaments, the legal apparatus, do not often represent them. Speaking for someone is not the same as hearing them, and it is often precisely how their voice gets replaced. The epistemic frameworks through which speech is recognised, through which a subject is granted the standing to make a claim, are controlled by those at the top. The High Courts hearing different sets of petitions, developing differing bodies of reasoning might have produced something of a generative conversation, a contest of interpretations, a slow elaboration of differing view points where the subaltern could have tried and located themselves.

What deserves far more alarm, however, is the Solicitor General’s request that the transferred petitions should go before a three-judge Bench, because the 2014 NALSA judgment that first recognised self-perceived gender identity as a fundamental right is one that High Courts “may find… difficult to take a view contrary to,” which a three-judge Bench would not. To refer NALSA to a three-judge Bench, in the shadow of an Amendment designed to undo its logic, would be to return to the archive and reclassify the moment of recognition itself.

Then there is the Chief Justice’s remark, which he made during the previous hearing, about men “masquerading” as transgender to grab reservations. Biopolitics tells us how the management of populations requires the construction of internal threats and of parasitic misuse. The welfare system cannot be extended to the marginalised without simultaneously producing the spectre of the welfare cheat. In a country where masculinity is armour that men are socialised into from birth, the notion that cis-gendered men will voluntarily discard that armour for a modest quota seems like a biopolitical fantasy.

Foucault’s framework argues that the power to make live and let die requires, always, a line drawn somewhere, of which someone must be on the wrong side. The Amendment draws that line, while the stay keeps anyone from moving it, at least for now.

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