Freeze first, hear later: Cost of centralising the tansgender amendment challenge

On 15 June 2026, a Partial Working Day Bench of Chief Justice Surya Kant and Justice V. Mohana issued notice on the Union government’s transfer petition which seeks to consolidate the High Court challenges to the Transgender Persons (Protection of Rights) Amendment Act, 2026. The Court also stayed further proceedings before the High Courts.

Several High Courts and the Supreme Court had received petitions challenging the validity of the Amendment. The Supreme Court feared that conflicting rulings would result in “scattered opinion”. Therefore, by that logic, the cases should be heard by one forum.

Article 139A lets the Supreme Court withdraw cases from High Courts when the same substantial questions of general importance are pending before it and them. A national law on transgender identity and welfare meets that threshold. Divergent rulings would fracture recognition across States. Therefore, this may appear as a respectable case for centralising.

But jurisdiction is not the question. It is whether the means chosen respect the High Courts, the rights of transgender persons and the lessons of earlier transfer proceedings. A blanket stay of proceedings at the High Court suspends live Article 226 remedies before the Court has decided whether transfer is even necessary. In a rights case, delay is not neutral; it can become an injury.

The amendment and the stakes

The 2019 Act was enacted after a two-judge Bench of the Supreme Court in National Legal Services Authority v Union of India (2014) recognised the right of transgender persons to self-identify their gender and located it in dignity, autonomy, equality, privacy and expression under Articles 14, 15, 16, 19 and 21.

The 2026 amendment reopens that settlement. It rewrites the definition of “transgender person”, installs a medical board as the certifying authority and deletes Section 4(2), which guarantees self-perceived gender identity. A District Magistrate now certifies only on the board’s recommendation. The statement of objects says the law protects a specified class facing exclusion “due to biological reasons for no fault of their own and no choice of their own”.

The Petitioners argue that the amendment turns selfhood into a matter of medical verification and that it makes gender identity a status the State grants rather than a constitutional attribute. The Union answers that it shields a vulnerable class while curbing misuse and overbreadth. Before the challenge is taken up, a procedural question has arrived: should the High Courts be halted while the Court weighs transfer?

Consolidation and past instances

The case for some consolidation is strong. The core questions are common: 

1. Whether Parliament has diluted the self-identification principle held in NALSA? 
2. Whether medical-board certification is compatible with dignity and privacy?
3. Whether the exclusionary definition is arbitrary?

The fear of inconsistent declarations is real. If one High Court stays the amendment and another does not, a person’s legal identity could turn on geography. Departments would be unsure about certificates already issued.

There is an institutional point too. NALSA was decided by two judges, and the Court has already directed that the constitutional challenge be heard by a three-judge bench.

The best precedent for the Union government is the challenge to the Union’s 2016 demonetisation. Several petitions had reached the Supreme Court and the High Courts after the Union government withdrew legal tender status of ₹500 and ₹1,000 notes in December 2016. A three-judge Bench stayed all High Court proceedings and barred other courts from entertaining one. The matter was then referred to a five-judge Constitution Bench.

The demonetisation litigation is the sharpest warning against consolidation. The Constitution Bench matter had remained pending for five years, with the verdict arriving in January 2023. By then, many grievances had become moot. Further, unlike the Demonetisation scheme which was an economic policy, the 2026 Amendment touches upon identity, medical privacy, continuing treatment and documentation. A similar delay here can alter lives, deciding whether a person keeps treatment, corrects certificates, accesses welfare or is outed by an official process. While the precedent argues for a transfer, it also cautions transfers and a blanket stay on High Court challenges.

What Article 139A requires

Article 139A is not a convenience clause for the Union, it is a conditioned, discretionary power. 

Sunil Rathee v State of Haryana (2020) sets two conditions: questions in the Supreme Court and High Court matters must be substantially the same, and they must be questions of general importance. Even then, the discretion is exercised case by case.

A central law challenged across High Courts does not automatically belong in the Supreme Court. High Courts are constitutional courts, not field offices that must yield whenever the Union invokes a risk of inconsistency.

In Union of India v United Planters Association of Southern India (2022) the Court refused to transfer challenges to the Payment of Bonus (Amendment) Act, 2015. It held that other factors may justify leaving matters with the High Courts, even where the same substantial questions arise. It held that the likelihood of divergent views cannot, by itself, be a ground for a transfer. It added that High Courts may be better placed for factual variation. Deciding a challenge directly in the Supreme Court denies litigants a High Court judgement and an appeal.

The 2026 Amendment Act litigation fits this scenario. The constitutional core is common, but the facts vary: some petitioners attack the definition, others seek to save certificates already issued, others contest disclosure of medical information. High Courts can quickly frame interim protection.

In Commissioner of Service Tax v Sri Selvaganapathy (2018), the Court held that the mere pendency of a similar issue before it does not justify transferring a writ proceeding from a High Court. Sunil Rathee, which discussed that case, confirms the power is discretionary and fact-sensitive. The Court can avoid conflicting final rulings without freezing all remedies. It can ask High Courts to defer final disposal while hearing urgent applications, name one lead High Court, or set a strict schedule while protecting existing certificates and treatment.

The 15 June Order reached for the hardest tool first. It stayed the continuing High Court proceedings while merely issuing notice on transfer. It did not deliberate whether the cases can be withdrawn or sent to one High Court. The petitioners have already lost, for now, the forum where they sought relief. It is also not clear as to what would happen to the interim reliefs already granted by some of the high courts, such as continuation of hormonal therapy and medical treatment.

“Scattered opinion” is only half the picture

The phrase “scattered opinion” raises an incomplete anxiety. Divergent High Court rulings refine issues, expose consequences and test arguments before the Supreme Court deliberates. Disagreement is not a defect but is often the raw material of better adjudication.

There is a federal dimension. Article 226 gives High Courts a broad remedial role that matters most for vulnerable groups. A person whose treatment is interrupted, whose certificate is questioned or whose privacy is breached cannot always wait for a national hearing. The local High Court is often the first real or only constitutional forum.

A blanket stay hands the Union a pause on every challenge, merely by filing transfer petitions. Article 139A should not become an executive pause button.

Further, High Courts are bound by the NALSA verdict. It would make it difficult for the Union government to convince a High Court on the validity of the enactment. Remedies could be granted by High Courts on the basis of NALSA in challenges raised after the 2026 Amendment Act. The stay on proceedings prevents that remedy for petitioners.

A better order was possible

The Court can still calibrate. It can first hear High Court petitioners and decide whether a case can be made for consolidation. It can pick a softer approach by transferring the challenges to a single High Court or let High Courts continue providing interim remedies pending final adjudication from the Supreme Court. 

The answer cannot be that every national issue comes straight to the Supreme Court. That would flatten the High Courts and leave vulnerable litigants at the mercy of an overburdened docket. Interestingly, challenges to the original 2019 Act still remain pending before the top court. No transfer petitions were filed in these cases. 

The 15 June order is sound only so far as it seeks a uniform answer on a central law’s validity. It becomes vulnerable when it freezes every High Court before deciding transfer and without preserving urgent relief. Until the final answer comes, the High Courts should not be made constitutionally silent.