This Article is written by Ashima Gupta student of VIPS, Delhi.
A historic judgment was delivered by the Hon’ble Supreme Court on 15 April, 2014 by a bench comprising of Justice K. S. Radhakrishnan and Justice A. K. Sikri in the case of National Legal Services Authority v. Union of India. This case was a landmark decision for the people who identify themselves as the “third gender”
National Legal Services Authority Of India (NALSA) filed this case to seek legal recognition for people who fall outside the male/female gender binary and who identify as “third gender”. This community has been oppressed and exploited for years and this issue needed to be addressed.
The main issue that was for consideration before the court was whether the people who identify themselves outside the male/female gender binary be legally recognised as “third gender” persons. The Court had to decide that whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution of India.
This was a landmark decision where the Apex Court gave legal recognition “third gender” transgender persons for the very first time and discussed the concept of “gender identity” in detail. The Court also directed the state governments to develop mechanisms to ensure that the rights of the transgender are protected.
According to the Hindu mythology and literature a great degree of respect was bestowed upon the trans-community and there was recognition of the third gender. They played an integral role in the royal courts and it was believed that they had the power to curse.
In ancient literature, the Hijra community has been mentioned a lot of times. It was also considered that they had religious authority and were often sought out for blessings during religious ceremonies.
It was during the British and Colonial period that the status of the transgender community severely deteriorated . The Criminal Tribes Act, 1871 contributed to a large degree in dehumanising of the transgender community. The entire community was deemed innately criminal as a consequence of this Act and this inhumane treatment continued for decades to come.
BACKGROUND OF THE CASE
The NALSA came forward to advocate their cause of getting legal recognition for people by filing Writ Petition No. 400 of 2012. This authority was constituted for the purpose of providing free legal services to the weaker and marginalized sections of the society. A Writ Petition No. 604 of 2013 was also filed by Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, seeking similar reliefs in respect of Kinnar community which is perhaps the most marginalised group in the transgender community.
The main issue before the Court was regarding the legal gender recognition of transgender people, and the lack of legal measures to protect their rights and interests. The pre-existing Indian Law lacked any provision with regards to the rights of transgender people; recognised as the binary genders of male and female. The person’s gender is assigned at birth and would determine his or her rights in relation to marriage, adoption, inheritance, succession, taxation and welfare. the community faced discrimination in various areas of life because of absence of any legislation to protect their interests.
- Whether people who fall outside the male/female gender binary can be legally recognised as “third gender” persons.
- Whether not recognising the rights of non-binary gender identitfies as breach of Fundamental Rights guaranteed by the Constitution of India.
- Whether steps should be taken by the states and
- Whether they should make legislation to protect the interests of the third gender
It was pleaded before the Court that the trans-community is deprived of their basic rights and privileges just because they do not fall under the gender binary and conform to societal norms. The counsel for the petitioner submitted that the transgender persons should be declared as a socially and educationally backward classes of citizens and all benefits available to that class must be extended to them. Learned counsel also submitted that the scope of Right to Dignity under Article 21 of the Constitution of India should be extended to them and it should include the right to choose and express one’s gender identity. Having freedom to express one’s gender identity is an integral part to lead a life of dignity.
Shri Sanjeev Bhatnagar was the learned counsel appearing for the petitioner in Writ Petition No. 604 of 2013 and he focused on the cause and issues faced by the Kinnar community. He submitted that the people of the Kinnar community are the most deprived and marginalised group of transgenders . He asked for legal protection of their rights and identities and also the other socio-economic benefits that should be extended to them.
The States and Union Territories, argued that steps were taken by them to improve the status and condition of people who are part of the transgender community. The State Government said that an “Expert Committee on Issues Relating to Transgender” had been set up and they would seek the petitioners views as part of that process.
The Court considered all these arguments and discussed in depth the position and status of the trans-community. The Court also focused on the Fundamental Rights given under Article 14, 15, 16 and 21 of the Constitution of India and their scope.
LEGAL PROVISIONS DISCUSSED AND THE JUDGMENT
The Court said that the trans-community for years have faced prejudices and discrimination. Acknowledging the discrimination the community has faced in various spheres including healthcare, education and employment, the Court said that this was violative of their basic Fundamental Rights. The Court discussed and interpreted the scope of the basic Fundamental Rights given under Articles 14, 15, 16 and 21 of the Constitution of India.
Article 14 of the Constitution of India states that every person should be entitled to equal protection of laws and equality. It puts a positive obligation on States to ensure equal protection of laws by bringing in the needed social changes. The word used in the Article is person and nowhere does the article limit its applicability to the third gender. Article 14 is framed in gender-neutral terms.
The Court clearly said that the transgender persons fall within the expression ‘person’. They are entitled to the legal protection of laws . They are entitled to equality and protection in all spheres of State’s activity, including healthcare, education, employment as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. Thus, the Right to Equality provided under Article 14 extends to the transgender.
ARTICLE 15 AND ARTICLE 16
Articles 15 and 16 prohibits discrimination of all kinds against any citizen.Under Articles 15 and 16, discrimination on the ground of “sex” is explicitly prohibited. Any form of gender discrimination and bias is prohibited under these Articles. Upon reading the provisions it’s clear that the Constitution makers intended to eliminate any kind of sex and gender discrimination on the basis of sex and the intention was to prevent a differential treatment of people who don’t conform to the set gender norms and stereotypes. It is important to understand that the biological aspects and attributes and gender constitute two different components of sex. Biological characteristics include genitals and secondary sexual features. The gender attribute, on the other hand , is the psychological or emotional sense of sexual identity and character.
The Court held that “sex” does not only mean biological attributes like genitalia chromosomes and the secondary sexual characteristics but also includes “gender” which is based on one’s self-perception. Thus, the Court held that discrimination on the ground of “sex” also includes discrimination which is based on gender identity.
Article 21 of the Constitution of India talks about Right to Life and provides for protection of life and personal liberty. It states that no person should be deprived of his life or personal liberty. Right to life is one of the most basic Fundamental Rights. It cannot even be taken away by state authority. Our Constitution grants certain set of rights to every human being and certain other rights are conferred on the citizens. The Court interpreted the word ‘dignity’ broadly. The Court said dignity includes the diversity in self-expression which allows a person to lead a dignified life. The Court said that gender identity is a Fundamental Right to dignity under Article 21.
The Court also took in account various international judgments to shed light on the sex and gender complexities. The Court also relied on the Yogyakarta Principles. The Yogyakarta Principles are a set of guidelines that addresses a wide range of international human rights standards. These are principles related to gender identity and sexual orientation.
Thus, the Court held that transgender persons were entitled to Fundamental Rights guaranteed under Articles 14, 15, 16, 19(1)(a) and 21 of the Constitution of India. The Court in addition to this also acknowledged the trauma that they go through because of being treated as an outcast by society. Even their own families don’t accept them and they are exploited and tortured just because they don’t fall under the society created gender norms. The Court gave several directions to the state government to ensure that rights of trans people are protected.
SUPREME COURT DIRECTIONS TO UNION AND STATE GOVERNMENT
- The Court directed that steps must be taken to protect their interests and they should be considered as socially and educationally backward classes of citizens and all kinds of reservation for public appointments and admission in educational institutions should be extended to them.
- The Court also considered the societal pressure and public shaming they face. The Court said that the problems that are being faced by the Hijras/Transgenders like fear, shame, social pressure, social stigma , depression and suicidal tendencies should be strictly addressed. It’s immoral and illegal to insist for SRS for declaring one’s gender.
- The Court also directed that separate HIV Sero-surveillance Centres should be set up for the Hijras/ Transgenders since they face several sexual health issues.
- Measures should be taken to provide proper medical care to trans people in the hospitals and they must be provided separate public toilets and other facilities.
- The Court directed that social welfare schemes must be framed for their betterment.
- The Court also emphasised on the need for public awareness and directed that steps must be taken to spread awareness so that trans people feel like they are also a part of the society and they should not be treated like they are outcasts or untouchables,
- The Court directed that measures should be taken to restore their respect and place in the society.
This is a very important and a much needed judgment for the protection of the rights of a community that has been exploited, oppressed and treated inhumanly for the longest time by the society and sometimes even by their own families. The judgment that was delivered by Radhakrishnan, J, extensively discussed the status of the transgender community not only in the international sphere as well as in the Indian legal and cultural history. Various legal aspects and the Fundamental Rights of the transgender community was discussed in the judgment. The appreciable factor of the judgment was that it recognised the transgender community as a socially and educationally backward community.
However, the judgment does not provide a long term solution to the problems faced by transgenders. It merely gives a cursory glance at these problems. Proper mechanism for counselling and interrogation should be provided to the ‘third gender’. They go through a great deal of stress and trauma. Not only are they mistreated by society, they are also abused by their families. Awareness is needed in society. People must be educated about the concepts of gender identity and sexual orientation. Sex education is needed to make people more aware and liberal. Nonetheless, this was a long awaited judgment as it recognised the rights of the transgender community and gave them the status and respect that was much required.
- B. v. Western Australia  HCA 42; 244 CLR 390; 85 ALJR 1233; 281 ALR 694; 46 Fam LR 1
- Corbett v. Corbett; 280 Ga. 369, 628 S.E.2d 585 (2006)
- Sridevi Nambiar, A Brief History Of Hijra, India’s Third Gender, January 1, 2017 https://theculturetrip.com/asia/india/articles/a-brief-history-of-hijra-indias-third-gender/
- Niyati Acharya, NALSA Union of India, March 15, 2019; (2014) 5 SCC 438 https://lawtimesjournal.in/nlsa-vs-union-of-india/
- The Yogyakarta Principles; https://yogyakartaprinciples.org/
- National Human Rights Commission v. State of Arunachal Pradesh; AIR 1996 SC 1234