Author: Unnati Jain, Lloyd law college
TO THE POINT
The term ‘transgender’ has been understood differently by different people and it was recognized in law after disposal of this case in 2014 when, the Supreme Court of India recognized transgender people and gave them there long awaited rights and recognition under constitution of India. This article will talk about all the facts, issues, law, court’s reasoning, etc. of this case.
ABSTRACT
The monumental case of National legal service authority (NALSA) v. Union of India (2014) was heard in the apex court i.e. the Supreme Court of India in 2014. Here, in this case, the terms like ‘third gender’ or ‘transgender’ came in notice prominently. A division bench (2 judge bench) declared the judgement of the same. A division bench typically presides over a number of cases concerning appeal matters and other matters, it is formed by the Chief Justice of India under the supreme court rules. Today we all live in a global world with the idea of ‘Vasudhaiva Kutumbakam’ which means ‘The world is one family’ and, in this globally connected and largely democratic world where countries vow for equality and freedom for all, this third gender community people were often neglected and discriminated on grounds of their behavior and gender. Though, the western countries legally recognized them in mid-20th century but the social recognition at large scale was still lacked. In India, this community was not even legally recognized until this 64 pages long judgement came in and provided the transgender people with their long overdue rights and recognition with gender equality in eyes of law. The following article will discuss the judgement with its background and constitutional mandate in detail.
INTRODUCTION
On 15th April 2014, the honorable supreme court declared its judgement on National Legal Service Authority v. Union of India. It serves a very important role in drastically changing the socio-legal system of India as it gave recognition to the third gender or transgender in society who were previously left neglected and unrecognized in India. The case was filed by the National Legal service authority (NALSA) under civil writ petition to attract supreme court’s attention towards transgender rights in India. They filed the petition to secure rights and to provide the transgender community with constitutional validation and recognition in the democratic India after years of struggle. The petitioners argued that the lack of constitutional recognition to this community signifies the lack of availability of fundamental rights to the same due to which this community had to face many discriminations in the society.
DIFFERENCE BETWEEN GENDER AND SEX
It is widely acknowledged that gender and sex both means the same but they both are different as the term ‘sex’ signifies the biological traits of an individual which is assigned at the time of birth with some kind of chromosomes, hormones and anatomy while the term ‘gender’ signifies the roles, responsibilities and actions of the individual by the society on the basis of male and female.
The Supreme court of India gave an umbrella term to all the third gender people who were recognized as hijra, kinnar, kothi, etc. which is ‘transgender’.
FACTS OF THE CASE
The transgender community is present in India since mythological times and has always been neglected by society. Terms like ‘tritya prakarti’ and ‘napunsaka’ were used in early vedic times to denote transgender people in India. The term ‘napunsaka’ signifies ‘the people who lack the ability or capacity to procreate further’ while the term ‘transgender’ signifies ‘the people whose internal idea of their gender does not match with the sex they have’. The petition filed, asked the supreme court of India to grant the transgender community with the rights they deserve and the constitutional recognition.
It all started when a transgender person Laxmi Narayan Tripathi, who was also a petitioner in the case with National Legal service authority and Poojaya mata nasib kaur ji women welfare socity filed the writ petition in Supreme Court against the Union of India. Laxmi Narayan Tripathi, during the hearings of the case shared a real life incident with the court where she herself was prosecuted for pointing out that her community (hijaras) were not recognized due to which were denied the fundamental right to equality and protection of law.
ISSUES OF THE CASE
The case raised several issues and from them the key issue involves the question of whether transgender people have the right of self-identification and whether they will be recognized legally in the constitution of India? Apart from these other issues consisted of the question that whether this non-recognition affected their fundamental rights? Whether the people who change their sex via surgery later will also be included in the definition of transgender? And, whether this third gender or transgender community be provided with affirmative actions like quota?
Some fundamental articles were in question which were, article 14,15,16 and 21 of the constitution of India. Article 14 talks about ‘right to equality’, article 15 talks about ‘no discrimination on any basis like caste, creed, sex, race, etc.’, article 16 talks about ‘equality of opportunity’ and article 21 talks about ‘right to life and personal liberty’. Here, involvement of article 21 signifies that there has been violation of right to live life with full dignity and express one’s gender identity.
LEGAL JAGRON
Article 14: Right to equality
According to this article, every person residing within the territory of India have the right to equality before law. Here, there is no specification that this right is for just male or female but ‘person’ so, transgender people are eligible to claim this right in India.
Article 15: Prohibition of discrimination
This article denotes that there should be no discrimination by state on the citizen of India in regard to their religion, caste, sex, race, place of birth, etc. Thus, transgender people being the citizen of India must not be discriminated based on the non-recognition of their gender.
Article 16: Equality of opportunity
According to this article, equality of opportunity is present with all the citizens of India for any kind of legal employment. But, the transgender community face immense discrimination when they go to apply for jobs whit that they are harassed mentally and physically too by the public.
Article 19: Protection of right to freedom and expression
This article denotes that all citizens are entitled for freedom of speech and expression, movement without arms, to settle in any part of India except of Jammu and Kashmir, etc. Here, transgender people were not able to express themselves freely or to move and visit wherever they wanted to within the application of legal boundaries.
Article 21: Protection of life and personal liberty
This article denotes that each and every person have the right to live their life and enjoy personal liberty though, it is limited with the due process of law. But, the transgender community is unable to enjoy this right as they are majorly discriminated on the ground of their gender.
CASE ANALYSIS/CASE LAW
The National Legal Service Authority v. Union of India (2014) is a landmark case that deals with the prominent issue of non-recognition of transgender people in India. The main petitioner of the case was National Legal Service Authority (NALSA) who was later joined by Laxmi Narayan Tripathi and Poojaya mata nasib kaur ji women welfare socity. They argued that many fundamental rights to which they were entitled for were being violated like the article 14,15,16,19 and 21 of the constitution of India. Though, the union of India (respondent) argued that they have formed committees to look after the challenges and discrimination faced by the transgender people and different states have taken suitable actions for the protection and recognition of the same but, it didn’t matter as much.
The judgement of this case was presented by a divisional bench of 2 judges. The 2 judges who heard this landmark case were, Justice K. S. Radhakrishnan and Justice A. K. Sikri. The author of this 64 page long landmark judgement is Justice. K. S. Radhakrishnan and he declared that this reasoning is dependent highly on international law and courts round the globe like that of Australia, New Zealand, etc. Justice Radhakrishnan highlighted in the judgement that, the kind of oppressive and discriminative behavior faced by transgender people in Indian society is unacceptable and societal negligence which needs to change as the transgender people have the equal right to live their life as a person within the traditional gender role. The court via this judgement ordered the government of India to include the option of third gender in all the government identification cards like aadhar card and pan card. With all this the court ruled that there should be establishment of different washrooms for the transgender people and there must be availability of proper medical care facilities for them.
The honorable Supreme court of India established some principles for the protection and upliftment of the transgender community where in the rights for self-determination and the right to personal integrity were determined by the court of law. This judgement helped the transgender community to gain the long lost and over-due acceptance in the constitution of India.
CONCLUSION
The honorable Supreme court via this landmark judgement provided safeguard to the transgender community by giving them the over-due recognition and integration in India. The principles provided and the instructions given to the central government by the apex court has helped this community to retain the fundamental rights with that the central government is needed to take proactive actions for the same. This judgement helped the non-recognized community to be legally recognized and gave them the identity of ‘third gender’ in India.
FAQ’s
Ques 1. Who are transgender people?
Ans 1. Transgender or third gender are the ones who does not recognize themselves as the sex they have.
Ques 2. Distinguish between sex and gender?
Ans 2. The term ‘sex’ signifies the biological traits of an individual which is assigned at the time of birth with some kind of chromosomes, hormones and anatomy while the term ‘gender’ on the basis of male and female signifies the roles, responsibilities and actions of the individual in the society.
Ques 3. Is being a transgender crime?
Ans 3. No, being a transgender or third gender
