By – Pragya Shukla

In the Supreme Court of India

NAME OF THE CASE	NATIONAL LEGAL SERVICES AUTHORITY v/s UNION OF INDIA
JURISDICTION	THE SUPREME COURT OF INDIA
CITATION	AIR 2014 SC 1863
DATE OF THE CASE	15th APRIL, 2014
PETITIONER	NATIONAL LEGAL SERVICES AUTHORITY
RESPONDENT	UNION OF INDIA
BENCH/ JUDGE	K.S. RADHAKRISHNAN, A.K. SIKRI
STATUTES/ CONSTITUTION INVOLVED	THE CONSTITUTION OF INDIA, INDIAN PENAL CODE, 1860 & THE LEGAL SERVICES AUTHORITIES ACT, 1987
IMPORTANT SECTIONS/ARTICLES	ARTICLES 14, 15(4), 16,17, 19(1)(a) & 21 OF THE CONSTITUTION OF INDIA & SECTION 377 OF INDIAN PENAL CODE,1860

India has witnessed a rich profusion of landmark cases that have substantially affected the interpretation of the laws and provided remarkable justice to the victims. National Legal Services Authority vs Union of India observed that the Fundamental Rights given under the Constitution of India should be granted equally to each individual including transgenders (TGs) and gave them the Right to Gender Identity, which originally included only men or women, but now they also have the right to opt the third gender category. Over the years, transgenders have faced torture, shame, discrimination, hatred, abuse and violence because they were not considered in the male or female categories.

 The verdict served as redressal of grievances of the transgender community who had been suffering for years. This case saw the legal declaration of their gender identity as part of India’s democracy. It concluded that the non-recognition of their gender identity violates articles 14, 15(4), 16, 19(1)(a) and 21 of the Constitution of India.

INTRODUCTION: –

National Legal Services Authority vs Union of India was a prominent case of Supreme Court in which landmark judgement was passed by a bench of Justice KS Radhakrishnan and Justice AK Sikri on April 15, 2014. The case pertained to seek redressal of grievances of the transgenders (TGs) who demanded a legal declaration for their identity and rights in the country and emphasized that the non-recognition of their identity was violative under Articles 14, 15(4), 19(1)(a) and 21 of the Constitution of India.

Transgender is an umbrella term for individuals whose gender identity, expression or behaviour does not conform to the sexes assigned to them at their birth. Traditionally, Indian society and laws recognized gender only in binary terms i.e., male and female. Though the existence of transgenders (TGs) was accepted by society but was subject to social boycott and other oppression. They were forced to live as outcasts and treated with disdain. But with the changing times, there is a growing awareness of gender identity and sexual orientation among people and thus the need for acceptance of different gender identities and sexual orientations.

 Hindu mythology, Vedic and Puranic literature acknowledged them as the third linga and gave them great respect. They played an important role in the royal courts and were considered to have the power to bless. After the advent of British rule in India, the situation of the TG community changed entirely and the colonialists treated them inhumanly.

This case came as a new ray of hope for the transgender community, who had been victims of discrimination and social injustice for a long time.  This case imparted them the basic fundamental rights and legally recognized “third gender” encountering gender identity at length.

BACKGROUND OF THE CASE: –

The National Legal Services Authority was constituted on 9 November 1995 under the authority of the Legal Services Authorities Act, 1987. Its objective is to provide free services to eligible candidates and organize Lok Adalat for the speedy resolution of cases. The Chief Justice of India is the custodian of NALSA while the second senior-most judge of the Supreme Court of India is the acting chairman. There is a provision for uniform machinery at the state and district level, headed by the Chief Justice of the High Court and the Chief Justices of the District Courts. The main objective of NALSA is to bring quick justice cases and reduce the burden of the judiciary.

The community that falls within the purview of the term ‘transgender’ has to face tremendous trauma and abuse from society, as they do not fall under the “socially accepted gender”. The non-recognition and non-acceptance from the society, which alienates the TG community, marginalizes this community and makes them untouchables. They face constant abuse and violence simply because they do not fall under the universally recognized gender i.e. male and female. They are oppressed and do not get the freedom and rights other citizens enjoy. They are shunned and maligned by society and are considered untouchables. They are regarded as liability and pain to the nation. They are prone to face rejections more often than other sections of society because of their sexual orientation. It’s believed that transgenders suffer from certain kinds of diseases and being close to them can affect one’s personality. Thus, they are often cornered by the other sections of society.

So finally, a petition was filed by the National Legal Services Authority which was the primary petitioner in this case and served to provide free legal aid to the underprivileged sections of the society and resorts to redressal of their grievances. The organization works for the betterment of society. Thus, the petition was filed so that the transgender can be recognized as the third gender apart from the binary gender, i.e. male and female in the eyes of law. Puja Mata Naseeb Kaur Ji Women’s Welfare Society and Laxmi Narayan Tripathi, a renowned Hijra activist, also filed a petition. Thus, the matter went to the court and finally, the light was shed regarding the injustice done to the transgenders (TGs).

FACTS OF THE CASE: –

• In 2012, the National Legal Services Authority (NALSA) constituted under the Legal Services Authorities Act, 1987 filed a social interest litigation to provide free legal services to the weaker sections of the society.
• It was also filed to organize Lok Adalats for amicable settlement of disputes prevailing during that time.
• Several Supreme Court directions including providing equal rights and protections to transgender community was the major concern of the authority.
• Inclusion of third category in recording one’s sex/gender in identity documents like election card, passport, driving license and ration card; and for admission to educational institutions, hospitals, etc. were the major highlights of the litigation.
• In 2013, the matter was clubbed with a petition filed in the Supreme Court by Pooja Mata Naseeb Kaur Ji Women’s Welfare Society, an organization working for transgender community.
• Lawyers collectively filed an intervention on behalf of Ms. Lakshmi Narayan Tripathi, an activist of the transgender community urging about the recognition of the self-identified gender of individuals as male/female/third gender based on their choice.

ISSUES RAISED BEFORE THE COURT: –

Subsequent issues were raised before the court –

• Whether the non-recognition and inconspicuousness of the gender identities violate Articles 14, 15(4), 19 and 21 of the Constitution of India or not?
• Whether the transgenders (TGs) should be categorized as “third gender” or not?
• What measures should be taken to empower the transgenders (TGs) and eradicate the vulnerability of these marginalized people?

     ARGUMENTS: –

      ARGUMENTS RAISED BY THE PETITIONER: –

• It was argued by the petitioner that every person belonging to the transgender community has a legal right to decide their sexual orientation and identify and determine their identity.

•  The petitioner also objected that since transgender people (TGs) are neither treated as male & female nor given third gender status, they are being denied many rights and privileges that other people receive as citizens of this country.

• TGs are deprived of social and cultural participation and therefore restricted access to education, health care and public places which deprive them of constitutional guarantees of equality before the law and equal protection of the laws.

• Further, it was also pointed out that the community also faces discrimination for contesting elections, right to vote, employment, obtaining license etc. and is, in fact, considered an outcast and untouchable. The learned Senior Counsel also submitted that in violation of Articles 14 to 16 and 21 of the Constitution of India, the State cannot discriminate against them on the basis of gender.

• It was further contended that people belonging to the transgendercommunity should be declared as socially and educationally backward and should be provided with all the benefits available to the other sections of the society i.e., male and female genders.

• The learned counsel also objected that the right to choose one’s gender identity is an integral part of the right to live life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India. Therefore, with reference to such rules/regulations and protocols, the transgender community should be empowered to decide whether to opt for male, female or transgender classification.

       ARGUMENTS RAISED BY THE RESPONDENT: –

• The Union of India was represented by the Additional Solicitor General Shri Rakesh K Khanna whocontended that the problems highlighted by the transgender community constitute a sensitive human issue which needs serious attention at a broader scope.

•  He pointed out that, under the aegis of the Ministry of Social Justice and Empowerment (abbreviated to “MOSJE”), a committee called “Expert Committee on Transgender Related Issues” had been constituted to undertake an in-depth study of the issue and to make appropriate recommendations to MOSJE on issues relating to transgender persons.
• It was also contended that due representation would also be given to the applicants appearing before the Court in the Committee so that their views could also be heard on the prominent topic since they contributed a lot in improving the conditions of the transgender strata of the society.
• It was also contended that several states and union territories have taken essential steps for the welfare of the transgender community so they were not entitled to be blamed for their vulnerability and helplessness.

RELATED PROVISIONS: –

  Constitution of India, 1950 –

• Article 14 of the Indian Constitution : –

Article 14 of the Constitution of India guarantees that -“The State shall not         deny to any person equality before the law or the equal protection of the laws within the territory of India.” Thus, in simple words, we can say that the right to equality and equal treatment of people is a right recognized by Article 14 of the Constitution. It specifically provides that no ‘person shall be discriminated based on sex/gender, caste, creed or colour. TGs come under the same protection as ‘person’ thus, they are entitled to equal treatment in every aspect of society.

• Article 15(4) of the Indian Constitution: –

Article 15(4) enables the State to make special provisions for promoting the interests and welfare of the socially and educationally backward sections of the society such as the Scheduled Castes and the Scheduled Tribes.

• Article 16 of the Indian Constitution: –

Article 16 assures equality of opportunity in matters of public employment and prohibits the State from discrimination of any kind on grounds of religion, race, caste, sex, race, place of birth, residence or any of these.

• Article 17 of the Indian Constitution:-

Article 17 of the Indian Constitution is important for the abolition of the practice of untouchability against the lower castes in Indian society. Any person who still practices or practices untouchability is considered an offence that is punishable by law.

• Article 19(1)(a) of the Indian Constitution: –

Article 19(1)(a) states that all citizens shall have the right to freedom of speech and expression and nobody should be prohibited based on caste, creed, gender, religion or community.

• Article 21 of the Indian Constitution: –

No person shall be deprived of his life or personal liberty as per the procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws in the territory of India. It is regarded as the heart and soul of the Indian Constitution.

     Indian Penal Code, 1860 –

• Section 377 : –

Whoever voluntarily commits carnal/ erotic intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall be liable to fine. It comes under the category of unnatural, cognizable and non-bailable offence.

JUDGEMENT: –

The Court held that the transgenders encompass under the purview of the Indian Constitution and therefore they should enjoy all the rights of the Constitution including Article 14 which guarantees the right to equality to every individual sustaining in India. Therefore, transgender people are entitled to equal legal protection by law. They are entitled to employment, health care, education and civil rights. Sexual discrimination based on orientation and gender identity represents inequality before the law and unequal protection of the law and violates Article 14.

The court further added that transgenders are not able to enjoy the provisions under Article 15(4) which aims for the advancement of socially and educationally backward people. They constitute such a group and the state is bound to take some appropriate action to remove the injustice done to them for centuries. The court said that the right to show or express gender identity through words, dress, actions or behaviour of a person is covered under Article 19 (right to freedom of expression). Privacy, self-identity, autonomy and personal integrity are fundamental rights protected by Article 19. The court also held that the transgender community has the wholesome right to Article 21 and they deserve to live in a dignified and peaceful manner.

The Court ratified the category of the third gender and stated that the fundamental rights should be provided to them in the same manner as men and women. Furthermore, both criminal and civil laws relating to non-recognition of the third gender such as marriage, adoption, divorce, etc., should be discriminatory to transgender persons. As for how the actual process of recognition would take place, the Court merely stated that they prefer to follow the psyche of the individual and use “psychological testing” as opposed to “biological testing”. The court also declared that it is illegal to insist on Sex Reassignment Surgery (SRS) as a condition for changing one’s gender.

The Central and State Governments were directed to take appropriate measures to provide medical care to transgender in hospitals and to provide them with separate public toilets and other facilities. In addition, they were also directed to conduct separate sex/Sero-surveillance measures for transgender people by the court. The Court also directed them to provide various social welfare schemes to the community and treat the community as socially and economically backward classes. They were also asked to increase reservation in educational institutions and public appointments.

These were the most comprehensive guidelines – the central and state governments were asked to take steps to create public awareness to help transgender people in society and eradicate the unfair treatment of untouchables. Further, they were asked to take measures to help them in regaining their respect and place in society and seriously address problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal ideation and social stigma.

The Court concluded that these declarations should be read in the light of the report of the Ministry of Social Justice and Empowerment Expert Committee on issues relating to transgenders (TGs) and stringent measures should be taken to uplift their position in the society.

CONCLUSION:-

This decision is undoubtedly a progressive step in the history of Indian law and is part of our collective constitutional heritage. Nevertheless, it is still ambiguous and contradicts the essence of transgenders. The Court has given a vague interpretation of the term and has not attempted to broaden the scope of the term. For example, a hijra is a cultural community that falls under the term “transgender”, but not all transgenders are eunuchs.

It is not clear in the judgment whether the eunuchs have the option of choosing women or third gender status based on what they prefer. To avail benefits like OBC reservation in jobs and education, will it be mandatory for trans-women to obtain a third gender identity? The process is yet not clear. Gender identification is a broad spectrum to recognize diverse groups. The judgment clarifies the difference between sexual orientation and gender identity but does not shed any light on the marginalization prevailing in Indian society. In a child’s formative years, all kinds of hormonal changes and confusion take place and a free and safe environment for the child to breathe is a must, so parents should be encouraged to train in gender sensitization. There is also the issue of lack of representation of the transgender community in Parliament. It is also very important to ensure that rules and procedures for the implementation of gender laws are straightforward to avoid any kind of misapprehension.