By Navya Yadav
In Supreme Court of India
|NAME OF THE CASE||National Legal Services Authority v. Union of India|
|CITATION||AIR 2014 SC 1863; (2014) 5 SCC 438|
|DATE OF THE JUDGEMENT||April 15, 2014|
|APPELLATE||National Legal Services Authority|
|RESPONDENT||Union of India|
|BENCH/JUDGE||K.S. Radhakrishnan and A.K. Sikri|
|STATUTES/CONSTITUTION INVOLVED||Constitution of India Legal Services Authority Act, 1997 The Indian Penal Code, 1860|
|IMPORTANT SECTIONS INVOLVED||Constitution of India- Article 14, 15, 16, 19, 21. Indian Penal Code- Section 377.|
In this case a writ petition was filed by National Legal Service Authority of India to legally recognize people who fall neither in male nor in female gender, a ‘third gender’ identity was asked to be recognized. The court said any person who fall outside the male or female gender binary can be legally recognized as “third gender” person. The court saw that not paying attention to non-binary gender identities is breach of Fundamental Rights of the person which is granted by the Constitution of India to each and every person irrespective of any gender. Court referred to an Expert Committee on this issue of transgender which was constituted under ministry of social justice and empowerment to get a solution to the issue raised and pass fair judgement.
Our society does not realize or even cares to realize the trauma pain and agony a person from transgender community person has to go through, society never understand nor appreciates the innate feelings of the members who belongs to transgender community specially to those whose mind and disowns their biological sex. We notice that our society often abuses the transgender community specially at public places these people are sidelined and treated as untouchables, people tend to forget the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, we need to change the mindset of the society.
In this case the main concern is to look into the grievances members of transgender community deal with and seek legal declaration for their gender identity. They prayed to the court that non-recognition of their gender identity violates the rights given under Article 14 and 21 of constitution of India. Hijras also claimed legal status as third gender with all constitutional and legal protections. Court several international instruments supporting this request of gender identity by including the Yogyakarta Principles on Application of International Human Right Law in relation to sexual orientation and gender identity as well as cases from foreign courts were referred and court recognised the interrelationship of the right to privacy and
The court in this case upheld the the rights of all persons to self identify their gender and also declared Hijras should legally be identified as “ Third Gender” the court classified that “gender identity did not refer to biological characteristics but rather referred to it as an innate perception of one’s gender” thus it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy in any way.
National Legal Services Authority which was constituted under the Legal Services Authority Act, 1997 to provide free legal aid to the weaker and other marginalized sections of society came forward to fight for their rights and filled a writ petition No. 400 of 2012 and a member of women welfare society named Poojaya Mata Nasib Kaur Ji also filled Writ Petition No. 604 of 2013 to seek basic rights of kinnar or transgender community.
Decision of this case was one the landmark decisions in the history of judiciary as it was first time when non binary gender identities we legally recognised and uphold the Fundamental Rights of transgender persons in India and also discussed gender identity in depth. The court said that third gender persons are also entitled to Fundamental Rights given under Constitution of India and under International Law, it also directed State Governments to develop mechanisms so that laws can be formed to protect the rights of third gender or transgender persons .
FACTS OF THE CASE
Transgender community faced a lot of humiliation they were even not allowed to have medical or educational facilities, people of society treated them as untouchables and they were exploited and harassed by them many more problems were faced by this community which violated their Fundamental Rights a several International Human Rights all these things led to filling of the petition by virtue of the same laws governing adoption, inheritance, taxation, marriage, succession, and welfare were all governed by whether or not you are mail of female. This lack of legal provisions for persons of third gender made them face discrimination at various stages of life thus in this case a public interest litigation was filled by National Legal Service Authority followed by other petitioners as well.
In 2012 an Indian statutory body constituted to give legal representation to marginalized sections of society also known as National Legal Services Authority filed a writ petition in Supreme court of India which was also joined by non-governmental organizations representing the Kinnar community and individuals who identified themselves as Hijra. The term Hijra was used for transgender community in South Asia it included hermaphrodites and castrated men as well as non-castrated men. It was seen as an umbrella term that includes people who were not identified with the biological gender they were born with or also the people who may identify as neither gender.
Petition asked for legal declaration of their gender identity at the time of birth as non-recognition of their gender identity violates Articles 14 and 21 of Constitution. Transgender community put forward that their inability to express themselves in terms of binary gender does not provide them equal protection of law and social welfare schemes they also prayed for legal protection as a backward community and asked for ability to express themselves as third identified gender in government forms. Solicitor General representing the government noticed that the matter represented is a serious social issue and he informed the court that an Expert Committee is already formed in order to address the problems faced by the people of transgender.
ISSUES RAISED BEFORE THE COURT
- Whether non-recognition of identity of transgender community led to violation of their rights under Article 14, 15, 16, 19, 21 of the constitution?
- Whether the transgender community need to be recognized as “Third Gender”?
ARGUMENTS RAISED BY THE APPELLATE
- Shri Raju Ramachandran the learned senior counsel appearing for the petitioners side said that National Legal Services Authority has highlighted the traumatic experiences faced by the members of the transgender community and submitted that every person of that community should have a legal right to decide their sex orientation and to espouse and determine their identity.
- Shri Anand Grover a learned senior counsel traced the historical background of the third gender identity in India and the position accorded to them in the Hindu Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts he also submitted that various International Forums and U.N. Bodies have recognized their gender identity and referred to the Yogyakarta Principles and pointed out that those principles have been recognized by various countries around the world. Reference was also made to few legislations giving recognition to the trans-sexual persons in other countries.
- Shri T. Srinivasa Murthy a learned counsel also filled a writ petition No. 2 of 2013 submiting that transgender persons should be declared as a socially and educationally backward classes of citizens and must be provided with all the benefits available to this class of persons which are being given to male and female genders. Learned counsel also submitted that the right to choose one’s gender identity is persons right to lead a life with dignity, which is should be guaranteed under Article 21 of the Constitution of India. Learned counsel, therefore, submitted that all the transgender persons must be given the right of choice to determine whether to opt for male, female or transgender classification.
- Shri Sanjeev Bhatnagar a learned counsel also filled a Writ Petition No.604 of 2013, highlighted the problems of the Kinnar community and submitted that they are the most deprived group of transgenders and asked the court to provide them with constitutional as well as legal protection for their identity and for other socio-economic benefits were only given to either male and female genders in a community.
ARGUMENTS RAISED BY THE RESPONDENT
- Rakesh K. Khanna a learned Additional Solicitor General from the respondent side that is appearing for the Union of India submitted that the problems which is highlighted by the transgender community is a sensitive human issue and it need to be payed serious attention.
- He said the under the Ministry of Social Justice and Empowerment an Expert Committee has been formed to study the issues relating to transgender community and problems faced by them.
- He also submitted that due representation would also be given to the applicants appeared before this Court in the Committee so that their views can also be heard and appropreate action can be taken in the matter.
- He also said that learned counsel appearing for various States and Union Territories have also taken many steps to improve the conditions and status of the members of transgender community in their respective States and Union Territories.
Constitution of India
Article 14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16- Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Article 19- Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
Article 21- Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
Indian Penal Code, 1860
Section 377– Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The judgment rendered by the Court honored the rights of homosexual persons as a third gender, other than from the gender binary, in order to effectively secure and defend their rights under the Constitution. The Court further stated that gender identity was an essential part of the personality and one of the most elementary aspects of self- determination, dignity and freedom. It reaffirmed that psychological gender should take supremacy over biological gender, and medical procedures couldn’t be a precondition for legal recognition of gender identity
In arguing the scope of the judgment, the Court noted that “( t) ransgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior doesn’t conform to their biological sex ” and has “ become an umbrella term that’s used to describe a wide range of identities and experiences, including but not limited topre-operative,post-operative andnon-operative transsexual people, who strongly identify with the gender opposite to their biological sex. ”
The Bench briefly argued the historical background of transgender rights in India, looking at several traditional transgender communities including Hijras, Eunuchs, Kothis, Aravanis, Jogappas, and Shiv- Shakthis and agreed the historical discrimination faced by them. The Court also heeded to evidence from transgender persons including the Intervenor to note the structural discrimination they faced in areas including employment, healthcare, and others, apart from social distinction.
The Court further excavated into the implications of recognition of gender identity and sexual orientation. It classified gender identity as a fundamental aspect of life, as it related to a person’s intrinsic sense of their own gender. In considering this, the Court drew special attention to several international instruments, including the Yogyakarta Principles which deal with the rights of persons of differing sexual orientations and gender identities. The Principles discuss several human rights norms and give directions to countries on how to uphold the rights of persons of varied individualities. Principle 6 specifically affirms the connection of the right to sequestration, anyhow of sexual exposure or gender identity.
The Court further related to Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, which relate to sequestration protections. The Court held that in the absence of any specific legislation in India relating to recognition of a third gender, and in absence of any domestic law to the negative, the provisions of these international instruments must be espoused to protect and guard the rights of the community.
With respect to Constitutional provisions, the Court held that gender identity was integral to life and would be defended under Articles 19 and 21 of the Constitution of India, as a function of freedom of expression, sequestration and quality. The transgender community’s rights to sequestration, tone- identity, autonomy, and particular integrity were reaffirmed and the legal recognition of gender identity was considered part of the right to quality and freedom guaranteed under Article 21 of the Constitution.
The Court noted the significance of reading indigenous vittles in line with present- day conditions grounded on changing social realities. The Court also noted that in order to grease the exercise of ambisexual persons ’ right to equality under Article 21, the State would have a positive obligation “ to insure equal protection of laws by bringing in necessary social and profitable changes ”. The Court further noted that distinction on the grounds of sexual exposure and gender identity would violate Article 14, while demarcation on the basis of sex would violate Articles 15 and 16. Sex was understood to mean all forms of gender- based discrimination.
The Court noted the need for legal recognition of a third gender and the right of transgender persons to self- identify. The Court gave directions to the State to honor transgender persons ’ self- identification and to take way to treat them as socially and educationally backward for the purpose of extending reservations. The Court further directed the State to operate HIV Sero- surveillance Centres since transgender persons faced several sexual health issues, and to seriously address the mental health problems being faced by the community including shame, gender dysphoria, social pressure, depression and others. more directions included spreading public knowledge, creating social well-being schemes, bettering medical care, and others. The Court further directed that the Expert Committee constituted by the government should examine the judgment and apply its recommendations within six months.
By this judgment, all government documents such as ration card, passports, etc. would recognize third gender. The Court also held that the transgender’s are citizens of India and are fully entitled to get the benefit of all schemes and programs launched by the Government irrespective of their population. Now the Election Commission of India has also taken special measures to enroll. In his judgment in the NALSA case Justice Radhakrishnan admits this fact in these words: “Seldom, our society realizes or cares to realize the trauma, agony, and pain which the members of the Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mind-set which we have to change”. From Justice Radhakrishnan’s opening lines talking about the moral failure of society’s unwillingness to contain or embrace different gender identities and expressions, down to Justice Sikhri’s cognizance of the painful process of transitioning from one gender to another, this is a text that is shot through with empathy.
Justice A.K. Sikri declare:-
(1) “Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. (4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.”
This case proved to be a landmark decision as it was the first to legally recognise non-binary gender identities and uphold thefundamental rights of the people belonging to trans gender in India judgement of this case directed the central government and state government to take active actions in order to secure the rights of transgender person.
It proved to be great that now there is a verdict which makes a separate gender known as transgender. This transgender community had to still work realy hard in order to change the mindset of the society they have just won a small battle they still have long way to go. Guari Sawant who refused to be called as man or female but asked to be called as Hijra said “it seemed changing people’s mindsets would take longer Law has identified us as transgenders. It is about who I am. I’m not an alien, she said While the fight for the transgender’s’ rights continues, she said she tried to find joy in the little things in life.” So in the end I would like to say we shoud read our preamble and the line with which it starts with “We the people of India” which does not highlights any gender and says all genders are equal before law.
 Author is 4th semester student of Amity Law School, Lucknow.
 INDIA CONST. art. 14, Constitution of India 1949.
 INDIA CONST. art. 15(1), Constitution of India 1949.
 INDIA CONST. art. 15(2), Constitution of India 1949.
 INDIA CONST. art. 16(1), Constitution of India 1949.
 INDIA CONST. art. 16(2), Constitution of India 1949.
 INDIA CONST. art. 16(3), Constitution of India 1949.
 INDIA CONST. art. 16(4), Constitution of India 1949.
 INDIA CONST. art. 16(5), Constitution of India 1949.
 INDIA CONST. art. 19(1),Constitution of India 1949.
 INDIA CONST. art. 19(2)a,Constitution of India 1949.
 INDIA CONST. art. 19(3)b,Constitution of India 1949.
 INDIA CONST. art. 19(4)c,Constitution of India 1949.
 INDIA CONST. art. 19(5)d,e,Constitution of India 1949.
 INDIA CONST. art. 19(6)g,Constitution of India 1949.
 INDIA CONST. art. 21,Constitution of India 1949.
 The Indian Penal Code, 1860, § 377, No. 45, Act of Parliament, 1860(India).