Author: Simran Shirvoikar, KLE’s society law college, Bengluru
Case name: National Legal Service Authority V. Union Of India
Citation: AIR 2014 SC 1863
Court : Supreme Court of India
Bench: Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri.
Petitioner
National Legal Services Authority (referred as NALSA)
Poojaya mata Nasib Kaur ji women welfare society
Laxmi Narayan Tripathi
Respondent
Union of India
Date of Judgement : 15th April 2014
Law involved: Constitution of India
Article 14
Article 15
Article 16
Article 21
Theme: The right given to transgender individuals to be legally recognized as the third gender.
Abstract
Many supreme court judgments have brought changes in our society but One of the most remarkable case that was given by the Supreme court with regard to recognition of transgender. 15th april 2014 is a memorable day to all over India because till that day only two genders i.e male and female were given their identity but after a long struggle and demand on this day transgender also got their identity and also recognition in our society. This Supreme court judgment is also known as the Third Gender Recognition Case. From Ancient time Transgender has always been humiliated and disrespected by all the other people who are present in the society. This is done because there were no recognised rules or any laws that were made for them in our nation hence most or rather all the transgender were not protected nor were they given any recognition how it was given to the rest of the people who were present in our society. All the laws that pre-existed in India would only talk about the other genders i.e male and female, As there was no prescribed laws for this community there was always a discrimination and Inequality that has been faced by this community and by looking at all this circumstances NALSA i.e National Legal Service Authority filed a petition in the supreme court with regard to the rights that should be given to the transgender and hence this judgment by supreme court came up and right and recognition both were given to transgender.
Introduction
India as a society has always been developing and has always taken steps to develop it more and also to create awareness over many issues that were faced in India but it always lacked gender awareness and this led to discrimination in our society and non-recognition of transgender. Awareness regarding transgender issues was not only deficient in society but also inadequately addressed by the law. There was no recognition to transgender people and hence there were no rights or legislations that were made to protect their rights. Transgender was not even given the basic human rights as well as fundamental rights. When we look at the life story of transgender person, this story basically has perpetual pain, agony and misery and this is being done just because they don’t fit in the norms that are being set by the society and hence there was constant physical and mental violence that was faced by them. They are considered to be outcasts and hence were not allowed to participate in any societal activity; it may be social, religious or political.
Background
When the term gender came into our society it was never just restricted to male and female even though people believe that there are only two genders that are present. Rather there are people who have other gender as well as other sexual identity which is present in our nation. For a long period of time all these people who don’t fit in the norms of gender were set aside and this was all done just because they had a distinct gender then other people and because of this they were not identified by other regular gender people.
Most of the people in our society would be aware of the term transgender which is considered as an umbrella term which includes all the people who do not come in the other regular gender role that is traditionally termed as male and female. When we look at this umbrella term it basically includes all the people who are gender fluid as well as those people who are agender and with this Both they also include intersex people are also included and hence this all inclusion makes the term transgender as a wider term as well as a broader concept.
Even though this concept of transgender is wide and progresses, still the people who fall under this forum are not accepted in the same way as the other two gender people are accepted in our society. Transgender instead of getting recognise in our society this people from ancient time were always discriminated and face a lot of violence and abusement in our society and this only took place due to one reason that the transgenders were not recognised as regular genders and hence they Were tortured and did not enjoy any right or freedom that was been enjoyed by other citizen.they were even discriminated to get with the basic needs or facilities such as Health Care Education etc. After years of abusement and torture that was being faced by this people there was a writ petition that was been file in the supreme court by the National Legal Service Authority, this is basically a statutory authority which gives free legal aid to all the unprivileged people in our society so that they can protect their rights and give solution to their problems. This organization works for the betterment of society and by filing the writ petition they try to give recognition to the third gender. In summary, two writ petitions concerning the same issue were filed separately in 2012. These petitions were later consolidated and heard together due to their similar subject matter. The petitions argued that the lack of recognition for the transgender community, due to their distinct gender identity and sexual orientation, constitutes a violation of their fundamental rights guaranteed by the Constitution of India, specifically Article 14 (Right to equality) and Article 21 (Right to life and liberty). Furthermore, this non-recognition breaches numerous basic human rights outlined in various international conventions and treaties, which will be discussed later in the article. Transgender individuals are entitled to the same rights and freedoms as cisgender individuals, and failing to acknowledge them is a grave violation of these rights.
Facts
When we look back in the history of our country it is very clear that transgender community had an important and special status in our country. Even when we read our hindu mythology, veda and puranic literature they all recognise transgender community and also portray great respect towards them and even when we come to royal courts even in this transgender played an important role and all this people of this community was considered as a power of blessing but as british rule came in India the status of transgender community started changing and they were treated in inhuman manner.
This case basically deals with the rights that are to be given for transgender people; these are the people who do not conform to either male or female. From ancient times in our society there are no rights that are being given to the transgender which in terms cause serious trauma and difficulties in their life. Most of the time these transgender people suffer with both the physical as well as mental abuse in public spaces such as shopping malls, hospitals, education centers etc and they are not accepted in our society rather treated as untouchables. In order to shed light on the various problems that have been faced by transgender community, the National Legal Service Authority, which is a statutory authority and provides free legal aid to all people who face issues in the society. They filed a writ petition in the supreme court with regard to the recognition or identification of transgenders rights in our community.
Due to non recognition of this community the constitution of India lacked to provide legal provisions for transgender people and so they were not able to protect their fundamental rights which are present under article 14, 15, 16 and 21.
Laxmi Narayan Tripathi who was a member of hijra community even she was a part of this case and while this cases was going up she shares a life incident that happened with Laxmi in past wherein she was prosecuted for putting forth same legal issue where they were not being identified as third gender and this complete community were denied with equality and equal protection by law.
Issues
Whether the non recognition of transgender affects the rights that were given to all citizens through the Indian Constitution?
Whether a person who is born with one sex but through surgery changes its sex will they be also included in the definition of transgender?
Law Involved
Constitution of India
Article 14: Equality before law
Article 15 : prohibition of discrimination on the ground of religion, race, caste, sex or place of birth
Article 16: equally in matters of public opportunity
Article 21: Right to life and liberty
Petitioners Contention
All the members that are present in transgender community have a legal right to decide with their sexual orientation and to espouse and determine their identity. It was also stated that transgender people are neither treated as male nor as female and hence many of the rights that are enjoyed by normal people in our society are being deprived. They are also not allowed to socially or culturally participate nor are they allowed to use basic facilities such as education, healthcare etc.
This community also faced a lot of discrimination with regard to contesting elections, employment etc and also they were treated as outcast and untouchables. In this contention, the senior counsel also submitted that the state cant discriminate against any person based on its gender because that will violate article 14 to 16 and article 21 of indian constitution.
Transgender community should be considered as socially and educationally backward class and considering this only benefits should be made available to them.
Counsel submitted that the right to choose one’s gender is an integral right which leads to right to life with dignity under article 21 of Indian constitution and counsel also submitted that it would be on transgender people to opt for male, female or transgender classification.
Respondent Contention
Counsel submitted that the problem that is faced by the transgender community is a human issue which requires serious attention and also pointed out that the ministry of social justice and employment has made an expert committee which will look into all the issues that are faced by transgender and even claimed that there was a study that was going on with regard to the problems that is faced by transgender.
Counsel also submitted that transgender would be also given with due representation
Judgment
After a lot of arguments and contention, the supreme court of India gave judgment on 15 April, 2014 which was given by a divisional bench, constituting Justice K.S. Radhakrishnan and Justice A.K Sikri wherein the verdict was given in favor of the petitioner. The decision clearly states that transgender community will have the right for self identification of their gender and will be also given with legal provision of identifying them as male or female and hence they will be also given with provisions and rights laid under part III of Indian constitution which are the basic fundamental rights, that are being otherwise enjoyed by binary gender. Eunuchs, Hijaras and all the people who don’t come under binary gender will be legally identified as “THIRD GENDER”.
The court also directed all state governments as well as the Union to take all the necessary measures with regard to various social, educational and health issues that are faced by transgender people and also help them to provide with reservation with regard to education as well as in employment.
The court acknowledged that a person’s gender identity and sexual orientation are essential parts of their personality and dignity. Therefore, individuals should not be forced to undergo medical procedures like sterilization or sex reassignment surgery (SRS) to gain legal recognition. Article 14 of the Indian Constitution guarantees equality and equal protection under the law to all “persons,” which includes those who are not strictly male or female. The term “transgender” encompasses a broad range of identities, including Hijras, Kothis, Eunuchs, Jogtas, and Shiv-Shakthis, who do not fit into the traditional male-female gender system. Articles 15 and 16 of the Constitution protect citizens from discrimination based on various grounds, including sex. Article 21 ensures the right to live with dignity, which includes the right to identify one’s own gender. As the court stated, “recognition of one’s gender identity lies at the heart of the fundamental right to dignity.” Article 19(1)(a) provides the right to free speech and expression, meaning that expressing one’s gender through clothing, language, or behavior is legally protected.
Conclusion
The NALSA v. Union of India case marked a historic milestone in recognizing and protecting the rights of transgender individuals in India. The Supreme Court’s ruling affirmed that gender identity and sexual orientation are integral to an individual’s personality and dignity. It declared that the transgender community is entitled to equal protection under the law, as guaranteed by Articles 14, 15, 16, 19, and 21 of the Indian Constitution. This landmark judgment ensured that transgender individuals could self-identify their gender without being forced into medical procedures, thereby upholding their fundamental rights to equality, dignity, and freedom of expression.
FAQ’s
What are the objectives of NALSA?
National Legal Service Authority (NALSA) is a statutory authority that provides an opportunity to weaker sections to get free legal aid and also this authority ensures that it should provide social justice and if any part of society is suffering with any issue then NALSA helps to find a solution for it.
Why was the writ petition filed in this case?
The writ petition was being filed by NALSA in supreme court on behalf of transgender for violation of transgenders fundamental rights and to protect their right and to provide them with recognition this writ petition was filed.
What milestone change was brought under NALSA judgment?
This judgment is considered as a milestone change because it gave recognition to all transgender people as third gender and also provided them with all fundamental rights which are mentioned under part III of Indian constitution and also provided them with the right of self identification of their gender as male ,female or third gender.
