Author: Malvika Sharma, Law College Dehradun.
Case Name: NALSA V. UNION OF INDIA& Ors
Court: Supreme Court of India
Date: 15 April 2014
Citation: 2014 5 SCC 438
Bench: K.S. Radhakrishnan, A.K. Sikri
Petitioner: National Legal Service Authority
Respondents: Union of India & Ors
INTRODUCTION
On 9 November 1995 under the Legal Service Authority Act 1997, National Service Legal Authority was formed in India. The main motive of constituting a body like NALSA was to provide free aid to all the poor, backward, and marginalized sections of the society.
Our society has only given recognition to two genders in the society, namely- the male and the female gender whereas everyone is aware of the fact that a third gender also constitutes a large part of our population but no recognition has been given to them. The third gender is commonly known as the transgender or the TG community.
The plight and sufferings of this community cannot be explained in words as they have been suffering for a long time now. They’re always the victim of abuse and violence because they don’t fall under the socially accepted gender forms. They’re often treated as untouchables and mostly face humiliation everywhere. They’re considered a burden and people think that they’re of no use to society.
In Hindu mythology and religious texts, the presence of Hijras and other transgender communities can be seen. In Ramayana it has been mentioned that when Lord Ram with Sita and Laxman was heading towards the forest for 14 years to live there he asked his followers, men, and women to now leave them and go back to Ayodhya, his followers also included Hijras and they thought that this order is not for them as they do not belong to the male or female community. Seeing their devotion, Lord Ram was impressed and he gave them the power to bless on auspicious occasions like childbirth and marriages. Their presence can also be seen in Ancient India as several books mention them.
In present times, we have seen cases of them being tortured and maltreated, they also do not enjoy the same fundamental rights as the other citizens do. Keeping all these things in mind and to help this community come out from their intense pain and trauma, a Writ Petition No 400 of 2012 was filed by the National Legal Service Authority of India so that the law recognizes them as the third gender.
Poojaya Mata Nasib Kaur Ji from Women Welfare Society also filed a writ Petition No.604 of 2013 seeking relief for the Kinnar community and Laxmi Narayan Tripathi who is an eminent TG activist also supported this cause.
FACTS OF THE CASE
The main motive of the petitioners to file the petition was to end the exploitation, abuse, and harassment faced by the community. To help them have access to basic facilities like medical, educational, legal, etc. In epics like Ramayana and Mahabharata transgender people like Hijaras and kinnars have been given utmost respect and admiration. It was after the colonial rule in India that their status degraded in society.
The petition by NALSA aims to recognize the gender of the transgender community. Laxmi Narayan Tripathi pleaded before the court to recognize their gender as the third gender so that they also enjoy the rights and freedom which every other citizen of the country does. It was also pleaded that when they’re denied as the third gender it deprives them of their legal rights to choose and practice their sexual orientation.
Gender determination in India is done after the birth of the child and all the other laws governing adoption, marriage, inheritance, succession, welfare is governed whether you’re a male or female. Due to the non-recognition of the third gender, they face discrimination throughout their life. Their Right to live with dignity under Article 21 and equal protection of the law under article 14 has always been violated.
Thus, the petition was filed by NALSA and other petitioners which was clubbed by the Apex court, and a landmark judgment was delivered by the supreme court.
ISSUES INVOLVED
Learned senior counsel appearing for the petitioner highlighted the traumatic experiences of the community and also raised the issue of discrimination faced by the community as they’re treated as outcasts and untouchables. The council also pointed out that discrimination on the grounds of gender cannot be done by the State as it violates Articles 14, 16, and 21 of the Indian Constitution. It was also submitted that transgender community people are the citizens of India and if their gender identity still remains non- recognized it will be violative of their Fundamental Rights.
Learned counsel Shri T. Srinivasa Murthy pleaded to declare the transgender community as a Socially and Educationally backward community and all the benefits available to the socially and educationally backward should be extended to them as well. Article 21 guarantees the right to live with dignity thus to choose one’s gender identity is essential to living a life with nobility. Thus, the community people should have the right of choice to whether opt for male, female or transgender classification.
The other important issues that were raised were:
Whether a person has the right to recognize himself as a male if he’s born as female with male orientations or vice versa or when a person has undergone surgical procedures to change his/her sex.
The person of the transgender community who is neither male nor female has the right to be classified under the Third Gender?
LAWS INVOLVED IN THE CASE
The case of NALSA V. Union of India &Ors involves Domestic as well as international laws and Conventions.
The Domestic laws include:
Article 14, Article 15& 16, Article 19, and Article 21 of the Indian Constitution.
Article 14 and the Third gender:
No person shall be denied equality before the law or equal protection of law by the state, this has been stated in Article 14 of the Indian Constitution. It imposes a positive duty on the state to bring social & economic changes and ensure equal protection of laws. This article doesn’t restrict its ambit to just males and females, thus, the transgenders/ hijras fall under this and are entitled to equal protection by law.
Article 15& 16 and the Third gender:
All kind of gender-based discrimination has been prohibited under Article 15 & 16 of the Constitution. Any kind of discrimination done on ‘sex’ will account for discrimination on the ground of gender identity. The word sex used in Article 15 & 16 doesn’t only account to the two binary genders – males and females but also includes those persons who do not keep themselves under these two categories.
Article 19(1)(a) and the Third gender:
The right to freedom of speech and expression has been guaranteed under Article 19(1)(a). This also includes one’s right to express his self-identified gender which can be expressed through words, dress, action, behavior, or any other form. A person cannot be restricted in showcasing his personal choice of dressing.
In the case of Doe V. Yunits et al1, the right of a person to wear a school dress that matches her gender identity was upheld by the Superior Court of Massachusetts.
Article 21 and the Third gender
Article 21 has been recognized as the heart and soul of the Indian Constitution as it ensures the Right to life and Personal Liberty. This fundamental right cannot be violated or be taken away by the State also except the procedure established by law.
One’s right to dignity, right to privacy, right to personal autonomy, etc. has been ensured and secured under Article 21 of the constitution. Gender identity’s legal recognition is a part of right to dignity and freedom guaranteed under the constitution. People of the third community have every right to live their life in a dignified and noble manner.
In the case of Anuj Garg V. Hotel Association of India2, the court held that personal autonomy includes- negative as well as positive rights. The negative right includes the right of not to be subjected to interference by others and the positive right includes making decisions regarding their life, to be able to express themselves, and to choose which activities to take part in. The intrinsic part of personal autonomy and self-expression is the self-determination of gender and it falls under the ambit of Article 21 of the Constitution.
International laws and Conventions
United Nations have been an important and effective body in safeguarding the rights of sexual minorities which also includes transgender people.
Article 6 of UDHR,1948 and Article 16 of ICCPR, 1966 declare that every person who is born has the right to live and be protected by law and no authority has the power to deny any person this right.
Article 17 of ICCPR ensures that no unlawful attack or interference should be done to the privacy, family, home, correspondence or to honor or reputation and that everyone has the right to be protected under law against such attacks.
A coalition of human rights organizations which included the International Commission of Jurist and the International Service for Human Rights developed a set of International Legal Principles to check out the Human Rights violation based on sexual identity and sexual orientation.
From 6- 9 November 2006, a group of experts in Yogyakarta, Indonesia adopted the Yogyakarta Principles on the use of international human rights law in connection to sexual orientation and gender identity. In brief, the Yogyakarta Principles as adopted are as follows:
Principle 1: THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS
Principle 2: THE RIGHT TO EQUALITY AND NON-DISCRIMINATION
Principle 3: THE RIGHT TO RECOGNITION BEFORE THE LAW
Principle 4: THE RIGHT TO LIFE
Principle 6: THE RIGHT TO PRIVACY
Principle 9: THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION
Principle 18: PROTECTION FROM MEDICAL ABUSES
Principle 19: THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION
CEDAW (Convention on Elimination of all Forms of Discrimination Against Women), Discrimination in employment has been prohibited under Article 11, European Convention of Human Rights which sought to Protection of Human Rights and fundamental freedom, Article 8&14 which ensures Right to respect for private and family life and non-discrimination respectively and lastly, the Vienna Convention on Law of Treaties Article 31 & 32.
JUDGEMENT OF THE CASE
It was a division bench and the judgment was given by Justice K.S. Radhakrishnan and Justice A.K. Sikri. Though the leading judgment was given by Justice Radhakrishnan Justice A.K. Sikri also opined his view on the case.
The court looked into the judgments that were delivered by the court of foreign countries namely- Malaysia, Pakistan, New Zealand, and English courts as well.
Firstly, In the case of Corbett V. Corbett3, the English Court had to deal with the gender of a male to female transsexual in the context of marriage validity. The learned judge demonstrated his view that the biological sexual constitution of a person is fixed at the time of his birth and that any operative intervention should be ignored and it cannot be changed by medical or surgical means.
This principle derived in the Corbett Case by the English Court was not supported by the courts in other countries like New Zealand, Australia, etc. And was also criticized by medical professionals.
In the case of Re Kevin4, an Australian case, the court held that for the purpose of marriage to determine the sex of an individual was no ‘Formulaic Solution’. Matters like a person’s life experience and self-perception were relevant and needed to be considered.
Looking into these landmark cases the supreme court also delivered a landmark judgment. It was held that:
The right to self-determination has been provided by Article 21 and thus the gender to which a person belongs has to be decided by the person concerned. The court said that gender identity is an integral part of a person’s individual dignity and is the key to ‘personal autonomy’ and ‘self-determination.’ Therefore, Hijras/ Eunuchs have to be considered as the Third Gender, over and above the binary genders under Constitution and law.
The court rejected the ‘Biological Test’ and adopted the ‘Psychological Test’ for the determination of gender and sex of a person. Article 14, 15, 16, 19, and 21 will not exclude Hijaras from its ambit.
The expression used in Article 14 is ‘person’, in Article 15 & 16 has used the words like ‘sex’ and ‘citizen’, and Article 21 mentions ‘person’. The court upheld that all these expressions will not just stick to the two binary genders but will also cover in it the Transgender community and various directions were laid down by the court to safeguard the interest of the trans people.
Justice A.K. Sikri completely agreed with the decision of Justice K.S. Radhakrishnan and gave his views on the case, he remarked that equality in International Human Rights law is based upon two principles namely- non-discrimination and reasonable differentiation. He explained that when common public facilities are outside the reach of the Transgender Community it leads to denial of rights. In a nutshell, it means embracing the belief in positive rights and reasonable accommodation.
The SC also directed the Centre and the State to:
Legally recognize the third gender as it has recognized the male and female gender.
To take effective steps and treat them as socially and educationally backward and provide them with benefits
To establish and operate different HIV surveillance centers for trans people as they face several sexual issues.
To take measures and construct public toilets for the transgender community and provide them with medical care.
To frame such schemes which help them to come out of their age back sufferings.
To create public awareness so that trans people also consider themselves as a part of this society.
Help them regain their respect and status in the society which they once enjoyed in India.
CONCLUSION
On 15 April 2014, a landmark judgment was delivered by the Supreme Court of India in the case of NALSA V. Union of India & Ors. This decision changed the lives of all those people who fall under the Transgender community as the law gave them the status of ‘Third Gender’ in society.
The judgment came like a ray of hope for this community as they have been suffering for a long time now. This judgment sought to improve the living condition of these people; it finally gave them the legal status of ‘third gender’ in society. They can now enjoy each and every right which all the other citizens of India can.
It is still a long run for this community as we still see them suffering and being victims of abuse and harassment all over. But this judgment has somehow helped them to come out of all this and live a dignified life.
REFERENCES
- 2000 WL33162199 (Mass. Super.)
- (2008) 3 SCC 1
- (1970) 2 All ER 33
- (2001) Famca 1074
- https://indiankanoon.org/doc/
National Legal Service Authority V. Union of India
Author: Malvika Sharma, Law College Dehradun.
Case Name: NALSA V. UNION OF INDIA& Ors
Court: Supreme Court of India
Date: 15 April 2014
Citation: 2014 5 SCC 438
Bench: K.S. Radhakrishnan, A.K. Sikri
Petitioner: National Legal Service Authority
Respondents: Union of India & Ors
INTRODUCTION
On 9 November 1995 under the Legal Service Authority Act 1997, National Service Legal Authority was formed in India. The main motive of constituting a body like NALSA was to provide free aid to all the poor, backward, and marginalized sections of the society.
Our society has only given recognition to two genders in the society, namely- the male and the female gender whereas everyone is aware of the fact that a third gender also constitutes a large part of our population but no recognition has been given to them. The third gender is commonly known as the transgender or the TG community.
The plight and sufferings of this community cannot be explained in words as they have been suffering for a long time now. They’re always the victim of abuse and violence because they don’t fall under the socially accepted gender forms. They’re often treated as untouchables and mostly face humiliation everywhere. They’re considered a burden and people think that they’re of no use to society.
In Hindu mythology and religious texts, the presence of Hijras and other transgender communities can be seen. In Ramayana it has been mentioned that when Lord Ram with Sita and Laxman was heading towards the forest for 14 years to live there he asked his followers, men, and women to now leave them and go back to Ayodhya, his followers also included Hijras and they thought that this order is not for them as they do not belong to the male or female community. Seeing their devotion, Lord Ram was impressed and he gave them the power to bless on auspicious occasions like childbirth and marriages. Their presence can also be seen in Ancient India as several books mention them.
In present times, we have seen cases of them being tortured and maltreated, they also do not enjoy the same fundamental rights as the other citizens do. Keeping all these things in mind and to help this community come out from their intense pain and trauma, a Writ Petition No 400 of 2012 was filed by the National Legal Service Authority of India so that the law recognizes them as the third gender.
Poojaya Mata Nasib Kaur Ji from Women Welfare Society also filed a writ Petition No.604 of 2013 seeking relief for the Kinnar community and Laxmi Narayan Tripathi who is an eminent TG activist also supported this cause.
FACTS OF THE CASE
The main motive of the petitioners to file the petition was to end the exploitation, abuse, and harassment faced by the community. To help them have access to basic facilities like medical, educational, legal, etc. In epics like Ramayana and Mahabharata transgender people like Hijaras and kinnars have been given utmost respect and admiration. It was after the colonial rule in India that their status degraded in society.
The petition by NALSA aims to recognize the gender of the transgender community. Laxmi Narayan Tripathi pleaded before the court to recognize their gender as the third gender so that they also enjoy the rights and freedom which every other citizen of the country does. It was also pleaded that when they’re denied as the third gender it deprives them of their legal rights to choose and practice their sexual orientation.
Gender determination in India is done after the birth of the child and all the other laws governing adoption, marriage, inheritance, succession, welfare is governed whether you’re a male or female. Due to the non-recognition of the third gender, they face discrimination throughout their life. Their Right to live with dignity under Article 21 and equal protection of the law under article 14 has always been violated.
Thus, the petition was filed by NALSA and other petitioners which was clubbed by the Apex court, and a landmark judgment was delivered by the supreme court.
ISSUES INVOLVED
Learned senior counsel appearing for the petitioner highlighted the traumatic experiences of the community and also raised the issue of discrimination faced by the community as they’re treated as outcasts and untouchables. The council also pointed out that discrimination on the grounds of gender cannot be done by the State as it violates Articles 14, 16, and 21 of the Indian Constitution. It was also submitted that transgender community people are the citizens of India and if their gender identity still remains non- recognized it will be violative of their Fundamental Rights.
Learned counsel Shri T. Srinivasa Murthy pleaded to declare the transgender community as a Socially and Educationally backward community and all the benefits available to the socially and educationally backward should be extended to them as well. Article 21 guarantees the right to live with dignity thus to choose one’s gender identity is essential to living a life with nobility. Thus, the community people should have the right of choice to whether opt for male, female or transgender classification.
The other important issues that were raised were:
Whether a person has the right to recognize himself as a male if he’s born as female with male orientations or vice versa or when a person has undergone surgical procedures to change his/her sex.
The person of the transgender community who is neither male nor female has the right to be classified under the Third Gender?
LAWS INVOLVED IN THE CASE
The case of NALSA V. Union of India &Ors involves Domestic as well as international laws and Conventions.
The Domestic laws include:
Article 14, Article 15& 16, Article 19, and Article 21 of the Indian Constitution.
Article 14 and the Third gender:
No person shall be denied equality before the law or equal protection of law by the state, this has been stated in Article 14 of the Indian Constitution. It imposes a positive duty on the state to bring social & economic changes and ensure equal protection of laws. This article doesn’t restrict its ambit to just males and females, thus, the transgenders/ hijras fall under this and are entitled to equal protection by law.
Article 15& 16 and the Third gender:
All kind of gender-based discrimination has been prohibited under Article 15 & 16 of the Constitution. Any kind of discrimination done on ‘sex’ will account for discrimination on the ground of gender identity. The word sex used in Article 15 & 16 doesn’t only account to the two binary genders – males and females but also includes those persons who do not keep themselves under these two categories.
Article 19(1)(a) and the Third gender:
The right to freedom of speech and expression has been guaranteed under Article 19(1)(a). This also includes one’s right to express his self-identified gender which can be expressed through words, dress, action, behavior, or any other form. A person cannot be restricted in showcasing his personal choice of dressing.
In the case of Doe V. Yunits et al1, the right of a person to wear a school dress that matches her gender identity was upheld by the Superior Court of Massachusetts.
Article 21 and the Third gender
Article 21 has been recognized as the heart and soul of the Indian Constitution as it ensures the Right to life and Personal Liberty. This fundamental right cannot be violated or be taken away by the State also except the procedure established by law.
One’s right to dignity, right to privacy, right to personal autonomy, etc. has been ensured and secured under Article 21 of the constitution. Gender identity’s legal recognition is a part of right to dignity and freedom guaranteed under the constitution. People of the third community have every right to live their life in a dignified and noble manner.
In the case of Anuj Garg V. Hotel Association of India2, the court held that personal autonomy includes- negative as well as positive rights. The negative right includes the right of not to be subjected to interference by others and the positive right includes making decisions regarding their life, to be able to express themselves, and to choose which activities to take part in. The intrinsic part of personal autonomy and self-expression is the self-determination of gender and it falls under the ambit of Article 21 of the Constitution.
International laws and Conventions
United Nations have been an important and effective body in safeguarding the rights of sexual minorities which also includes transgender people.
Article 6 of UDHR,1948 and Article 16 of ICCPR, 1966 declare that every person who is born has the right to live and be protected by law and no authority has the power to deny any person this right.
Article 17 of ICCPR ensures that no unlawful attack or interference should be done to the privacy, family, home, correspondence or to honor or reputation and that everyone has the right to be protected under law against such attacks.
A coalition of human rights organizations which included the International Commission of Jurist and the International Service for Human Rights developed a set of International Legal Principles to check out the Human Rights violation based on sexual identity and sexual orientation.
From 6- 9 November 2006, a group of experts in Yogyakarta, Indonesia adopted the Yogyakarta Principles on the use of international human rights law in connection to sexual orientation and gender identity. In brief, the Yogyakarta Principles as adopted are as follows:
Principle 1: THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS
Principle 2: THE RIGHT TO EQUALITY AND NON-DISCRIMINATION
Principle 3: THE RIGHT TO RECOGNITION BEFORE THE LAW
Principle 4: THE RIGHT TO LIFE
Principle 6: THE RIGHT TO PRIVACY
Principle 9: THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION
Principle 18: PROTECTION FROM MEDICAL ABUSES
Principle 19: THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION
CEDAW (Convention on Elimination of all Forms of Discrimination Against Women), Discrimination in employment has been prohibited under Article 11, European Convention of Human Rights which sought to Protection of Human Rights and fundamental freedom, Article 8&14 which ensures Right to respect for private and family life and non-discrimination respectively and lastly, the Vienna Convention on Law of Treaties Article 31 & 32.
JUDGEMENT OF THE CASE
It was a division bench and the judgment was given by Justice K.S. Radhakrishnan and Justice A.K. Sikri. Though the leading judgment was given by Justice Radhakrishnan Justice A.K. Sikri also opined his view on the case.
The court looked into the judgments that were delivered by the court of foreign countries namely- Malaysia, Pakistan, New Zealand, and English courts as well.
Firstly, In the case of Corbett V. Corbett3, the English Court had to deal with the gender of a male to female transsexual in the context of marriage validity. The learned judge demonstrated his view that the biological sexual constitution of a person is fixed at the time of his birth and that any operative intervention should be ignored and it cannot be changed by medical or surgical means.
This principle derived in the Corbett Case by the English Court was not supported by the courts in other countries like New Zealand, Australia, etc. And was also criticized by medical professionals.
In the case of Re Kevin4, an Australian case, the court held that for the purpose of marriage to determine the sex of an individual was no ‘Formulaic Solution’. Matters like a person’s life experience and self-perception were relevant and needed to be considered.
Looking into these landmark cases the supreme court also delivered a landmark judgment. It was held that:
The right to self-determination has been provided by Article 21 and thus the gender to which a person belongs has to be decided by the person concerned. The court said that gender identity is an integral part of a person’s individual dignity and is the key to ‘personal autonomy’ and ‘self-determination.’ Therefore, Hijras/ Eunuchs have to be considered as the Third Gender, over and above the binary genders under Constitution and law.
The court rejected the ‘Biological Test’ and adopted the ‘Psychological Test’ for the determination of gender and sex of a person. Article 14, 15, 16, 19, and 21 will not exclude Hijaras from its ambit.
The expression used in Article 14 is ‘person’, in Article 15 & 16 has used the words like ‘sex’ and ‘citizen’, and Article 21 mentions ‘person’. The court upheld that all these expressions will not just stick to the two binary genders but will also cover in it the Transgender community and various directions were laid down by the court to safeguard the interest of the trans people.
Justice A.K. Sikri completely agreed with the decision of Justice K.S. Radhakrishnan and gave his views on the case, he remarked that equality in International Human Rights law is based upon two principles namely- non-discrimination and reasonable differentiation. He explained that when common public facilities are outside the reach of the Transgender Community it leads to denial of rights. In a nutshell, it means embracing the belief in positive rights and reasonable accommodation.
The SC also directed the Centre and the State to:
Legally recognize the third gender as it has recognized the male and female gender.
To take effective steps and treat them as socially and educationally backward and provide them with benefits
To establish and operate different HIV surveillance centers for trans people as they face several sexual issues.
To take measures and construct public toilets for the transgender community and provide them with medical care.
To frame such schemes which help them to come out of their age back sufferings.
To create public awareness so that trans people also consider themselves as a part of this society.
Help them regain their respect and status in the society which they once enjoyed in India.
CONCLUSION
On 15 April 2014, a landmark judgment was delivered by the Supreme Court of India in the case of NALSA V. Union of India & Ors. This decision changed the lives of all those people who fall under the Transgender community as the law gave them the status of ‘Third Gender’ in society.
The judgment came like a ray of hope for this community as they have been suffering for a long time now. This judgment sought to improve the living condition of these people; it finally gave them the legal status of ‘third gender’ in society. They can now enjoy each and every right which all the other citizens of India can.
It is still a long run for this community as we still see them suffering and being victims of abuse and harassment all over. But this judgment has somehow helped them to come out of all this and live a dignified life.
REFERENCES
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