NALSA VS UNION OF INDIA (2014) – Writ Petition (Civil) No 400 of 2012

NALSA VS UNION OF INDIA (2014) – Writ Petition (Civil) No 400 of 2012

Author- Gopa Mahali

Case name: National Legal Service Authority Vs Union of India.

Court: In the Supreme Court of India (Civil Original Jurisdiction)

Citation(s): Writ Petition (Civil) No 400 of 2012

Petitioner: National Legal Service Authority.

Respondent: Union of India and others.

Date of Judgement: 15 April 2014

Bench: Justice K.S. Panicker Radhakrishnan and Justice Arjun Kumar Sikri.

NALSA VS UNION OF INDIA Background:

The transgender communities in India consist of Hijras, Eunuchs, Kothis, Jogappas, Aravanis, Shiv-Shaktis, and many more. In the pre-colonial period, hijras held excessive social status. But following the British regime, their privileges have slowly been eroded. They have increasingly become victims of oppression which totally takes away their dignity and human existence.

Society is considered very inclusive about gender however in the case of transgender they face several discriminations. Their fundamental rights Article 14,15,16,19 and 21 often get violated. They face extreme discrimination in all spheres of society such as for entry into public areas and especially in the area of employment due to non-recognition of identity.

So finally a petition was filed by the National Legal Services Authority who in this case of NASA VS UNION OF INDIA of was the primary petition which provides free legal aid to the underprivileged sections of the society and resorts to solving their grievances.

Facts of the case of NALSA VS UNION OF INDIA:

  • The National Legal Service Authority filed a writ petition No. 400 of 2012.
  • Poojaya Mata Nasib Kaur Ji Women Welfare Society has also preferred writ petition No. 604 of 2013 seeking similar reliefs in respect of kinnar community, TG community.
  • Laxmi Narayan Tripathy who is a renowned Hijra activist also filed a petition so that Transgender can be recognized as a third gender in the eyes of the law other than the binary gender i.e. male and female.
  • The petitions were filed because non-recognition of the transgender community as a separate sexual and gender identity denies them the fundamental rights such as Article 14 and Article 21 which are protected by the Indian constitution.

Issues:

  1. Whether Transgender, who are neither males nor females have the freedom to choose their gender by undergoing the operational procedures and get themselves recognized as male or female as per their choice?
  2. Whether the state should make such legislation to protect their rights by giving them the identification as “third gender”?

Relevant Acts/Sections:

  • Article 14[1]: Article 14 of the constitution states that the state shall not deny any person equality before the law and equal protection of the law. Equality includes the full and equal enjoyment of all rights and freedom. The word ‘person’ includes all human beings and not restricted only to males or females, which means that every person including transgender is also entitled to enjoy the same rights and protection without any discrimination. Any discrimination on the ground of gender identity or sexual orientation for equality or protection before the law is a violation of Article 14 of the constitution.
  • Article 15[2] and 16[3]: Article 15 and 16 of the constitution prohibits discrimination on the ground of sex. Art 15 states that all citizens shall have the equal right to use public places and use the things which are dedicated to the use of the general public. Article 16 states that no person shall be discriminated for employment under the state on the bases of sex. This article prohibits gender-based discrimination. The word sex is not limited to only males and females but also for those communities who consider themselves neither male nor female. Discrimination of sex under art 15 and 16 is a discrimination of gender identity.
  • Article 21[4]: Article 21 is the heart and soul of the Indian constitution which talks about our life and personal liberty. It states that no person shall be deprived of his life and personal liberty. Self-discrimination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the constitution.
  • Section 377[5]: Of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of the Criminal Tribes Act that criminalized all penile- non-vaginal sexual act between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices.

NALSA VS UNION OF INDIA Arguments:

  • Shri Raju Ramachandran, learned senior counsel appearing for the petitioner the National Legal Service Authority, submitted the traumatic conditions faced by the transgender community in India. Learned senior counsel submitted that as because of the non-recognition of identity they faced several discrimination on the ground of education, health care service, to access public places, to contest the election, right to vote, employment, etc, which deprived them of several rights and privileges that are enjoyed by the citizens of this country, discriminating the transgender on the ground of identity is the violation of article 14, 16 and 21 of the constitution.
  • Shri Anand Grover, learned senior counsel appearing for the Intervener, traced the historical background of the transgender, and explained the inhuman manner by which they were treated by the British colonial era. Learned senior counsel submitted that non-recognition of their identity is a violation of the fundamental rights guaranteed to every citizen of this country.
  • Shri T. Srinivas Murthy, learned counsel appearing in I.A. No.2 of 2013, submitted that the transgender community has been declared as a socially and economically backward class, and thus they must enjoy all the privileges that are available to this section of the society. Learned counsel also submitted that the right to choose own gender identity is integral to the right to live a life with dignity.
  • Shri Sanjeev Bhatnagar, learned counsel appearing for the petitioner No. 604 of 2013 submitted that the kinnar community is the most deprived community, and thus constitutional and legal protection should be given for their identity as well as for their rights.
  • Shri Rakesh K. Khanna, learned Additional Solicitor General, appearing for the Union of India, submitted that the problems highlighted by the transgender community is a sensitive issue, and their views should be heard.

NALSA VS UNION OF INDIA Judgement:

This case of NALSA VS UNION OF INDIA resulted in the recognition of transgender persons as a third gender which includes Hijras, Eunuchs, Aravanis, and many more apart from binary gender; they shall also have the right to choose their own identity. The SC also instructed the government to treat them as minorities and expand the reservation in education, jobs, education, etc. 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.

Supreme Court direction Centre and State Government:

  • To grant legal recognition of their gender identity such as male, female or third gender.
  •  To provide the community with various social welfare schemes for their betterment also to create public awareness so that TGs will feel that they are also part of the social life and not be treated as untouchables. There must be proper measures to provide medical care, separate public toilets, and other facilities.

Precedents:

Corbett V. Corbett[6]

The court in English was concerned with the gender of a male to female transsexual in the context of the validity of a marriage. In this case of NALSA VS UNION OF INDIA, the court said that the law should adopt the chromosomal, gonadal, and genital tests, and if all three are congruent, that should determine a person’s sex for the purpose of marriage. Learned Judge expressed the view that any question intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.

Lockhart, J. In Secretary, Department of Social Security V. SRA[7]

It was observed that the development in surgical and medical techniques in the field of sexual reassignment, together with indications of changing social attitudes towards transsexuals, would indicate that generally they should not be regarded as merely of chromosomes, which are purely a psychological question, one of self-perception, and partly a social question, how society perceives the individual.

A.B. V. Western Australia[8]

This case of NALSA VS UNION OF INDIA was concerned with the Gender Reassignment Act, 2000. In that Act, a person who had undergone a reassignment procedure could apply to Gender Reassignment Board for the issue of a recognition certificate. Under Section 15 of that Act, before issuing the certificate, the board has to be satisfied, inter alia, that the applicant believes his or her true gender was the person’s reassigned gender and had adopted the lifestyle and gender characteristics of that gender.

Legislations in other countries on transgender was analyzed

In the International human rights law, many countries have enacted laws for recognizing the rights of transsexual persons, who have undergone either partial/complete SRS, including the United Kingdom, Netherlands, Germany, Canada, etc.

United kingdom has passed the General Recommendation Act 2004, this Act not only provides legal recognition to the acquired gender of a person but also lays down provisions highlighting the consequences of the newly acquired gender status on their legal rights and entitlements in various aspects such as marriage, succession, social security, etc. One of the notable features of the Act is that it is not necessary that a person needs to have undergone or in the process of undergoing an SRS to apply under this act.

In Australia, there are two Acts dealing with gender identity, (i) Sex Discrimination Act, 1984 and (ii) Sex Discrimination Amendment Act 2013 this Act defines gender identity as the appearance or mannerisms or other gender-related characteristics of a person with or without regard to the person designation sex at birth. Act 2013 amends the Sex Discrimination Act, 1984.  

NALSA VS UNION OF INDIA–Analysis:

We can’t ignore the fact that the transgender community in India has faced the violation, torture, humiliation and pain for really long time. They face discrimination in all spheres of their life and completely lost their dignity and human existence. They kept silent and finally through this landmark judgement their condition has improved. This judgement gave them their identity as third gender and revert their rights back.

An important issue that was raised in the judgment was with regard to the validity of the Sex Reassignment Surgery (SRS) from the point of view of Human Rights and the court held it illegal and insisted on the use of the “Psychological test”. The court here emphasized on the Psychological elements of referring to gender than the binary notion of the gender of that person, thereby focusing on the root motive of the trauma of the transgender community in India.

In addition, the court mentioned in aspect revolutionary jurisprudence of other countries such as United Kingdom, Australia, New Zealand, and the United States in the course of recognizing the basic rights of transsexual persons. It located it vital for India to observe international human rights conventions.

The judgment applicability used to be limited totally to “transgender”, and explicitly excluded the Lesbians, Gays, and Bisexual, thereby no longer going in the controversial question of the validity of Section 377 of IPC. With regard to Transgender, each of the people who decide on to transition from their respective genders and the ones who pick out to be diagnosed with the third gender have been included within the ambit of the judgment.

The solely factor the place where the court appears to lack a stance is on Section 377. Through the judgement acknowledge the damage executed by Section 377 to the transgender community; it did not make any orders or pointers related to the same.

Conclusion:

It can be concluded that even though this landmark judgment gave them their identification and revert back their rights but still they have a stigma, nevertheless they face discrimination, still transgender is their guilt, still, people call them “chakka, homo, gay, mamu” they still continued to be transparent. They are the last community to get the rights as Indians and still not even a fraction has been done yet, at the ground it is still the same old story.

Changes are needed to be made and it must come in the curriculum of education. Every person need to be taught about gender and equality and comprehend what is the right then only the changes can come.


[1] The Constitution of India, 1950, Article 14.

[2] The Constitution of India, 1950, Article 15.

[3] The Constitution of India, 1950, Article 16.

[4] The Constitution of India, 1950, Article 21.

[5] Sec377 of INDIAN PENAL CODE, Act No. 45 OF 1860.

[6] [1970]2 AII ER 33

[7] (1993) 43 FCR 299

[8] [2011] HCA 42

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