National Legal Services Authority v Union of India and Others
By T. Tanya
Jurisdiction: The Supreme Court of India.
Date of Decision: 15 of April 2014
Bench: K.S Radhakrishnan, A.K Sikri
The judgment was delivered in pursuance of Public Interest Litigation filed by the National Legal Services Authority (NALSA). The petition filed by NALSA sought to address the grievance faced by the transgender community.
Since the said community does not come under the normally accepted binary genders (male, female) they are being subjected to discrimination and abuse. As a consequence of their non acceptance by the society the community is being sidelined.
In 2012, the National Legal Services Authority filed a writ petition with the Supreme Court of India on behalf of country’s transgender community. The petition sought a legal declaration of their gender identity than the one assigned to them and that they are entitled to equal recognition of their constitutional rights.
In April 2014, the Supreme Court allowed the petition and held that the right to express one’s identity was an essential part of freedom of expression, and individuals must have the right to express their gender. It directed the government to give legal recognition to the third gender.
BACKGROUND OF THE CASE
The said case is regarding legal gender recognition of transgender people, and whether the lack of legal measures to cater for the needs of persons not identifying clearly as male or female contradicts the Constitution. Pre-existing Indian law only recognized the binary genders of male and female, and lacked provisions with regard to the rights of transgender people.
The Hindu mythology, Vedic and Puranic literatures recognized them as the third gender and treated them with great respect. They played an important role in the royal courts and were considered to have the power to give blessings. It was at the time of British rule the status of the TG community reversed .As a direct consequence of the Criminal Tribes Act, 1871, the said legislation deemed the entire community as innately criminal. Even though the act has been repealed now their present status needs to be improved.
The cruelty faced by TG community, from the society at large, is violative of their many fundamental rights including those under Articles 14 and 21 of the Constitution.
There were two writ petitions filed to protect the rights and identity of the transgender community:
1. NALSA constituted under the Legal Services Authority Act, 1997, filed a writ petition
2. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, has also filed a Writ Petition, seeking similar reliefs in respect of Kinnar community, a TG community.
The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender.
In recognizing the third gender category, the Court validates the applicability of fundamental rights to them as well. Further, non-recognition of third gender in both criminal and civil statutes is discriminatory to the third gender. Regarding the procedure of recognition, the Court merely states that they prefer to follow the psyche of the person and use the "Psychological Test" as opposed to the "Biological Test". They also declare that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one's gender is illegal.
Not only that the Central and State Governments have been directed to take proper measures to provide adequate medical care , provide them separate public toilets and other facilities and have been asked to provide the community social welfare schemes .
Centre and State Governments are asked to take steps to create public awareness so that Transgender people will feel safe and secure and not be treated as untouchables.
The TG community is to be treated as socially and economically backward classes.
RATIONALE ADOPTED BY THE COURT
The main issue in the writ petition was the recognition of gender identities as perceived by the Transgender Community. The judges took into consideration the international legal scenario. The right to equality and equal treatment of persons is a right recognized by Article 14 of the Constitution. It specifically provides that no ‘person’ shall be discriminated on the basis of sex/gender. Article 14 does not restrict the word ‘person’ and its application only to male or female. The TGs fall within the word ‘person’ and are entitled to equal protection of all laws.
Article 15 provides for the development of minority and backward communities. The TGs have been for long denied their rights under Article 15(2). Moreover, under Article 15(4) they must be accorded a status of socially and educationally backward class. Additionally, they are also entitled to reservation in the matter of appointment in public and state offices.
One of the most important fundamental right that is denied to the TG community is their right under Article 19 (1) (a). Article 19 (1) (a) guarantees to citizens the freedom of speech and expression. This right includes the right to expression of one’s self-identified gender.
Article 21 is one of the most extensive fundamental right provided by the Constitution. Life under Article 21 does not mean mere existence alone. It also includes the right to live with dignity. Expression of oneself comes under Article 21.
The judges also took into consideration the various human rights provided under the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, the Yogyakarta Principles, etc. in determining the extent of transgender rights. Moreover, the plethora of judgments and legislations in foreign countries recognizing the right of the TG community and the acceptance of a special social status in the world convinced the judges that it was high time that India also comes up with progressive measure for the protection of this vulnerable community.
The judgment delivered by Radhakrishnan and A.K Sikri made a thorough analysis of the transgender status both in the international as well as Indian scenario. The given judgment also addresses deals regarding the issues and problems faced by the community.
Justice Sikri took into consideration the Directive Principles of State Policy to recognize the duty of the State in taking affirmative action for the upliftment of the community.
The judge has observed that the TG community, along with their right to self-recognition is also deprived of their basic facilities, be it education or medical facilities. They are also being denied of their right to vote, right to own property etc.
A notable point of the judgment was its recognition of the community as socially backward community, thus making them eligible for reservation.
Another remarkable aspect is the special medical attention that is to be given to this community and also directing the Central and State Governments to implement measures to help them provide them a sense of belonging in the society.
The judgment given by the honorable judges did not fail the hopes of the TG community.
The said judgment was a long awaited one and it can be said to be the type of case where faith on the judiciary have been restored. Though the community has been granted legal recognition, their present status till needs to improve. It all comes down to the acceptance of public. They must be educated about the community by organizing seminars or programs regarding transgenders.