Biography

Surabhi Shukla is currently in the fourth year of her DPhil (law) studies. Her DPhil engages with arguments from religion and culture in non-freedom of religion fundamental rights cases in India. While the freedom of religion is a guaranteed fundamental right in the country, and several other aspects of civic life are regulated by religious or cultural laws, there is an arena of personal life decisions that is neither protected by the freedom of religion nor religiously or culturally regulated by law; examples include surrogacy, abortion, same sex relations, sex work, euthanasia etc. In other words, the black letter law has envisaged no role for religion and culture in the determination of rights related to those areas. However, litigation on these issues demonstrates that religious and cultural claims are being used to regulate these personal decisions. While the litigants employ such claims to persuade the court to expand or contract individual autonomy over personal life choices, courts adopt religion and culture based reasoning in arriving at their decisions. Her DPhil will study this phenomenon, its implications, and provide normative answers to the appropriate role of such arguments in constitutional litigation.

She completed her B.A.LL.B. (Hons.) from the National Law School of India University (NLSIU) in 2011 and her LL.M. from the UCLA School of Law in 2012. She was awarded the Dean's Tuition Fellowship and the Narotam Sekhsaria Foundation Scholarship to attend UCLA. She has worked at the ACLU of Southern California in Los Angeles, the Williams Institute at UCLA, the Supreme Court of India, and taught as an Assistant Professor of Law at the O. P. Jindal Global University, India, before starting her DPhil at Oxford. 

In 2014, she was awarded an IASSCS Emerging Scholars' International Research Fellowship. Through this fellowship, she conducted a study on the experiences on queer students during their school life in India. The study is hosted here:http://genderdiversityandschools.in/. This project has since won the Jack Collins Social Action Bursary of the Oriel College, Oxford, in 2017.  

She is admitted to the Bar in India and New York. She blogs on sexual orientation and gender identity cases in Indian courts, at: https://lawandsexuality.com/

 

Publications

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  • Surabhi Shukla, 'Transgender Persons in Indian Courtrooms' in Z. Davy, A. C. Santos, C. Bertone, R. Thoreson & S. Wieringa (ed), The Sage Handbook of Global Sexualities (Sage 2020)
    The National Legal Services Authority v. Union of India and Ors. (NALSA) case was a landmark Indian case in 2014 in which the Supreme Court clarified that the fundamental rights guaranteed by the Indian constitution extend to the transgender community as well. This chapter explores whether the legal narrative regarding transgender persons has changed after that case. It does so by studying all reported post-NALSA cases at the Supreme Court and High Court level. The most important legal finding of the NALSA case was that the right to self-identified gender is a fundamental right under the Indian constitution. Accordingly, any reliance on sex reassignment surgery (SRS) and psychological testing before allowing a person to identify in self-determined gender is unconstitutional. This chapter finds that first, the most frequently litigated cases regarding transgender persons post-NALSA are those concerning gender identity. Accordingly, the bulk of the chapter focuses on those cases. Second, it demonstrates that the trend in those cases is to maintain status quo. As long as a person wishes to identify in a gender which is consistent with societal perception, the courts do not ask for a SRS certificate or psychological examination. However, when a person wants to identify in a gender different from societal perception, the courts ask for a SRS certificate and in one instance, a psychiatric evaluation. It therefore concludes that the rule of self determination laid down in NALSA has been replaced with the rule of societal perception. This finding deals a severe blow to transgender rights jurisprudence in India. The gist is available here: https://lawandsexuality.com/2019/02/11/trend-in-gender-identity-claims-post-nalsa/
  • Surabhi Shukla, 'The Many Faces of Dignity in Navtej Johar' (2019) European Human Rights Law Review 195
    This material was first published by Thomson Reuters and Contributors Limited in Surabhi Shukla , Dignity in Navtej Johar , 2019 European Human Rights Law Review, Issue 2,195-203 and is reproduced by agreement with the Publishers.
    This case analysis explores the myriad ways in which the idea of “dignity” featured in the Navtej Johar case before the Indian Supreme Court, which found that, in addition to other constitutional grounds, s.377 of the Indian Penal Code was unconstitutional to the extent that it criminalised non-heterosexual sexual relations between adults. A majority of the Court found that s.377 violated the right to dignity inherent under the right to life protection of art.21 of the Indian Constitution. This finding, in which dignity was imagined as self-worth constituted but one of the ratio decidendi of the case.In total, however, four conceptions of dignity emerged: the first saw dignity as a change in thought process, the second equated dignity with individual characteristics of a person, the third imagined dignity as a background force which makes an individual, “an individual” and the fourth equated dignity with self-worth. . In addition to these conceptions, the judgment mentioned certain entitlements that emanated from dignity, including a right to health, a right to sexual privacy and a right to sexual orientation.Finally, some usages of dignity in this case linked it to other jurisprudential principles (e.g. the rule of law), but these did not have normative traction as the Court did not develop or fully explain these connections.I argue that while these linkages may provide avenues for the future development of the concept of dignity, connecting it to other values in normatively and functionally opaque ways may run the risk of depriving this concept of meaning.
  • Surabhi Shukla, 'United Nations and HIV/AIDS: The Comic Book Experiment' (2018) European Human Rights Law Review 336
    This material was first published by Thomson Reuters and Contributors Limited in Surabhi Shukla, United Nations and HIV/AIDS: The Comic Book Experiment, [2018] European Human Rights Law Review, Issue 4, 336-351 and is reproduced by agreement with the Publishers.
    On 25 September,2015, the United Nations,through a resolution passed in the General Assembly,adopted a set of 17 Global Sustainable Development Goals. A core team consisting of PCI Media Impact and Reading with Pictures (both NGOs) in association with the United Nations Children’s Fund (UNICEF) have initiated a project called Comics Uniting Nations through which artists from across the world will create comic books educating about the 17 different goals. One of these goals is to promote the “physical and mental well-being” of all. Directly within the purview of this goal fall efforts to combat HIV/AIDS. The United Nations has,once before,undertaken a project to spread awareness about HIV/AIDS through comic books.This article seeks to critically evaluate the hits and misses of that project from the perspective of public health with the aim of providing, both, a critical evaluation of the comic book project and of highlighting some important themes within the HIV/AIDS advocacy that Comics Uniting Nations must address through the new comics.
  • Dipika Jain, Kimberly Rhoten and Surabhi Shukla, 'Legally Invisible' (2014) 653 SEMINAR
    Archived Here: https://perma.cc/W3P2-S5ZH
  • Surabhi Shukla and Anubha Singh, 'Strength of a Woman?' (2014) KAFILA
    Archived Here: https://perma.cc/D5BX-JBNZ
  • Surabhi Shukla, 'Headscarf Debates, Asking the Woman Question' (2011) 1 GENDER HUMAN RIGHTS AND LAW 186

Research Interests

Constitutional Law, Analytical Legal Philosophy, Law and Sexuality, Tort Law.

Research projects