By Varshini.R

Name of the case	NALSA v. Union of India
Citation	AIR 2014 SCC 438
Case number	Civil writ petition No. 400 of 2012
Date of the judgement	15th April 2014
Petitioners	National Legal Service Authority Poojya Mata Nasib Kaur Ji Women Wefare Society Laxmi Narayan Tripathy
Respondents	Union of india & others
Bench/ Judges	Justice K.S Radhakrishnan Justice Arjun Kumar Sikri
Statutes	Indian constitution
Important Sections and articles	Art.14, Art.15&16, Art.21, and section 377 of IPC

Abstract

This case is filed by the national legal service authirrity of india (NALSA)to legally recognize persons who fall under the male/female gender binary, including persons who identify as third gender.

Introduction

India as a society has always lacked gender awareness, and the same is reflected not only in the general attitude of the society but the law of the land too. Specific legislation and provisions are needed that will safeguard the rights of the individuals who do not identify as either male or female. The story of people who are generally referred to as transgender is a story of perpetual pain, misery, and agony. In India, the rights of these individuals mainly arise out of various Articles of Part III of the Constitution due to the lack of specific legislation to safeguard their rights.

However, at the international level, their rights are well established in various international legal documents which include the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the Convention for Protection of Human Rights, the Yogyakarta Principles and Fundamental Freedoms (European Convention of Human Rights).

Background of the case

Two writs were filed to protect and safeguard the rights of individuals that belong to the transgender community. The National Legal Services Authority, which is constituted under the Legal Services Authority Act, 1997, filed a writ petition (writ petition no. 400 of 2012). It was followed by another writ petition (No. 604 of 2013) which was filed by Pooja Mata Nasib Kaur Ji Women Welfare Society, a registered association for the protection of the rights of the Kinnar (Transgender) community. Laxmi Narayan Tripathi, who considered himself to be Hijra, also approached the court and was also impleaded in the present case. He claimed that being a hijra, his rights as guaranteed by Article 14 and 21 were being denied and the Court had to intervene so that he and other members of his community are not discriminated against anymore.

Facts of the case

In this, there were two writ petitions filed to protect the rights and identity of the transgender community, which was clubbed by the Apex Court. One writ petition No. 400 of 2012 was filed by NALSA constituted under the Legal Services Authority Act, 1997. The other Writ Petition No. 604 of 2013 was filed by Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association seeking similar reliefs in respect of Kinnar community, a TG community.

Laxmi Narayan Tripathy affirmed to be a Hijra, also pleaded before the Court representing the people of the transgender community and his life sufferings for the recognition of their gender identity as a ‘third gender’. Tripathy pleaded before the Court when they are denied as a third gender, then it deprives them of their legal right to choose and practice their sexual orientation. It violates their right to equality and equal protection of law given under Article 14 of the Constitution and right to live with dignity under Article 21 of the Constitution.

Issues raised

• At the core of the current petitions were the issues that revolved around gender identity and the protections that were necessary to safeguard the rights and interests of persons who identify themselves with the third gender.
• Another question was whether a person who is born male but has a female orientation has the right to be identified as a female; the same question arises when an individual uses surgery to change his/her sex.
• One more issue that the petitioners raised was whether a person who does not identify either as a male or a female has the right to be categorized as a “third gender”.

Arguments of the petitioner

The petitioners through their counsels vehemently argued that the concept of binary genders strikes at the core of the Right to Equality (Article 14), Right to Life and Personal Liberty (Article 21), and Freedom of Expression (Article 19). The normalization of binary genders has further victimized and alienated individuals that do not identify with either of the genders. They further argued that due to non-identification as the third gender, the basic human dignity of such individuals is violated which marginalizes them and forces them to live on the fringes of society for no fault of theirs.

Arguments of the respondents

The respondents, on the other hand, argued that the state had set up an “Expert Committee on Issues Relating to Transgender” which is considering all kinds of opinions to help transgender individuals live a more prosperous and dignified life. They also contended that the Committee will also consider the views of the petitioners so that a more robust policy is framed in this respect. Several states and union territories argued that they have taken a significant number of steps for the betterment of the lives of the transgender community.

Related provisions

• Article 14: The Article guarantees “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This Article ensures equal protection of rights. Therefore, it becomes the duty of the State to bring the essential changes in the social, economic and political spectrum. Thus the transgender/ Hijras must also be not denied equal protection of their rights too. To uplift them and to enforce their protection of rights, the necessary changes in all spheres must be taken whether social, political and economic.

• Articles 15 and 16: Under these Articles, prohibits all forms of gender bias and gender-based discrimination. The discrimination on the ground of ‘sex’ which is done with Hijras/ transgender is invocation of their fundamental rights granted under Articles 15 and 16. Discriminating transgender based on their gender identity in any form falls under violation of these Articles. It has to be understood that the expression ‘sex’ used in Articles 15 and 16 also includes people who neither male nor female and is not just limited to the biological sex of male or female.

• Article 21: This Article of the Constitution of India guarantees the right to life and to live with dignity. It is read as “Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to the procedure established by law.” Right to life is one of the essential fundamental rights which the State in any situation is not empowered to take away from anyone provided the procedure established by law. Section 377 of the IPC: Under this Section in the Indian Penal Code, 1860, the sexual orientation or the sexual practices between the transgender was penalized. It was stated that it was needed to revive such a Section to provide transgender equality, equal protection of their rights and a right to live with dignity as guaranteed by the above Articles.

Judgement

• The judgement was delivered by a two-judge bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri on 15th April 2014 although Justice Sikri gave a different opinion with some additional comments.
• The court in its landmark judgement relied on various judgements from foreign courts like New Zealand, Australia, Malaysia, Pakistan, and England.
• The Court made a distinction between Biological sex and Psychological sex.
• The Court said no to gender identification based on biological sex and gave full importance to identification based on psychological sex.
• The Court held that transgenders fall within the purview of the Indian Constitution and thus are fully entitled to the rights guaranteed therein.
• Article 14 guarantees equality to “any person” which means man, woman, and transgender, and as such, they are also guaranteed equal protection of the law.
• The Court further added that transgender individuals have freedom of expression under Article 19 whereby they can talk, dress, act, and behave in a manner they like.
• They also have a right to live a life of dignity under Article 21.
• The Court held that the State and Central governments must grant transgenders full recognition in the eyes of the law so that they can get education and healthcare without being subjected to any kind of discrimination.
• The Court also decided that Hijras, Eunuchs are to be treated as the “third gender”.

Concepts highlighted

The Supreme Court took into consideration different foreign judgements like:

In Corbett v. Corbett, the Court in England was concerned with the gender of a male to female transsexual in the context of the validity of a marriage. In this case, the court said that the law should adopt the chromosomal, gonadal and genital tests and if all three are congruent, that should determine a person’s sex for the purpose of marriage. Learned Judge expressed the view that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.

The Court after referring to various provisions and Conventions held as follows:-‘’Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. In the twenty-first century, the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.’’

Conclusion

This judgement came as a fresh ray of hope for the transgender community who have long suffered in silence in the face of large scale discrimination and social injustice. We cannot be naive to believe that this judgement will change the way society treats transgender individuals but it is a start to right the wrongs that have taken place against transgenders for centuries together. As for giving transgenders equal rights in our socio-religious and socio-political activities, there is a very long way to go; for now despite this judgement they are still either propping in the mainstream society or outcasts that live on the fringes.