NATIONAL LEGAL SERVICE AUTHORITY Vs UNION OF INDIA AND OTHERS (2014) 5 SCC 438

Author-Paramveer Singh |
College - Panjab University, Chandigarh

 

Important Highlights

CASE NAMENATIONAL LEGAL SERVICE AUTHORITY Vs UNION OF INDIA AND OTHERS
JUDICIAL BODYIn the Supreme Court of India  
CITATION(2014) 5 SCC 438
CASE NO.Writ Petition (Civil) No. 400 of 2012 with Writ Petition (Civil) No. 604 of 2013
PETITIONERNational Legal Service Authority
RESPONDENTUnion of India and Others
BENCHJustice K. S. Radhakrishnan and Justice A. K. Sikri.

Keywords: NATIONAL LEGAL SERVICE AUTHORITY Vs UNION OF INDIA, NALSA VS UNION OF INDIA, NALSA CASE SUMMARY, NALSA JUDGEMENT

Introduction:

This judgment of NATIONAL LEGAL SERVICE AUTHORITY Vs UNION OF INDIA AND OTHERS is Supreme Court’s  Landmark Judgement decided on 15 April 2014 by a bench comprising of Justice K. S. Radhakrishnan and Justice A. K. Sikri.

This Judgement is concerned with seeking remedy or compensation for unfair treatment with the transgender community who seek a legal declaration for their identity and rights in the country as non-recognition of their identities violate their Fundamental rights. The hon’ble supreme court states that non-recognition of their identities violate Article 14,15,16 and 21 of the constitution of India.TG community comprises of Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakti, etc. So they must also be provided each and every right provided to other citizens of India by the Indian Constitution.

They as a Group got to face heaps of issues, abuses relating to their gender, they’re treated as untouchables. to get rid of such untouchability this judgment was passed.

So there is a need to change Our mentality and also we need to accept them as citizens of our country. Their rights must be protected as guaranteed by the constitution same as of other genders like males and females.

Facts of The Case:

  1. An Indian statutory body NALSAS was constituted under the Legal Services Authority Act, 1997, to give legal representation to the excluded sections of society, filed a writ petition with the Supreme Court of India in 2012. The petition was also joined by Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, representing the Kinnar transgender community, and an individual who identified himself as a Hijra.
  2. Laxmi Narayan Tripathi, claimed to be a Hijra, has conjointly moved to effectively express the present condition of the members of the transgender community. Tripathi says that non-recognition of the identity of Hijras, a TG community, as a third gender, completely violates their right guaranteed under Article 14 of the Constitution i.e. the right of equality before the law and equal protection of law and rights guaranteed to them under Article 21 of the Constitution of India.
  3. The transgender community urged that their inability to specific themselves in terms of a binary gender denies them the equal protection of the law and social welfare schemes. They conjointly prayed for legal protection as a backward community, as well as the right to be able to express their self-identified gender in government forms.

Legal issue:

  1. Whether transgender’s, community, will be treated as “third gender
  2. Whether Non-recognition of their gender identity is a violation of their fundamental rights.
  3. whether or not the state ought to build such legislation to guard the rights of TG’s.

Arguments of The Parties:

Argument By the Petitioner

  1. It was claimed by the Petitioner that every TG person should have this option to choose their sex and determine their identity. Counsel has submitted that since the TG are neither treated as male or female nor given the status of the third gender, they’re bereft of several of the rights and privileges, which are enjoyed by other persons as citizens of this country
  2. TG’s are excluded from all social and cultural participation and thus restricted access to education, health care, and public places that deprives them of the constitutional guarantee of equality before the law and equal protection of the law.
  3. The counsel for the petitioner also submitted that the state cannot discriminate against them on the basis of gender, as this will be a complete violation of Article 14, 16, and 21 of the Indian constitution.
  4. Article 14 is the very fundamental right provided by the constitution of India namely the right to equality states that each and every person must be given equality even to the transgender community. Transgender being a citizen of India must be treated equally. Moreover in the instant case leaned counsel herself has faced various discrimination and harassment
  5. Talking about Article 16 of the Indian Constitution this also violates their right, which says that there should be equal opportunities to all citizens and no Person will be discriminated against on the ground of sex, caste, place of birth, and religion, etc. On the Other Hand Transgender’s don’t seem to be given equal job opportunities.
  6. Article 21 another fundamental right provided by the Indian constitution (right to life and personal liberty) This article says that every person has the right to life and personal liberty except procedure established by law. The right to life also includes the right to live with human dignity, So Transgender’s also had every right to live their life in a dignified and respectful way.
  7. According to the petitioners, many international laws are also violated.
  8. The Counsel for Petitioner further submitted that non-recognition of gender identity of the TG Community violates the Fundamental Rights sure to them, who is the citizen of this country.
  9. It was also submitted by the Petitioner that, TG’s ought to be declared as a socially and educationally backward category of citizens and should be consequently ought to give all the advantages.

Argument By the Respondent

To improve the condition of the transgender community all the specific steps taken by the state are explained by the respondent. Respondent claims that there must be a community and an organization made by the government for society.

Learned counsel also pointed out that, a Committee, called “Expert Committee on Issues relating to Transgender”, has been constituted under the aegis of the Ministry of Social Justice and Empowerment, to conduct an in-depth study of the problems relating to transgenders.

NALSA Judgement:

To safeguard and shield the rights of the transgenders bonded within the constitution of  India, it had been declared that:

  1. Hijras, Eunuchs, aside from binary gender, Should be treated as “third gender”.
  2. Transgender persons’ right to decide their self-identified gender is additionally  upheld.

Precedents:

Corbett v. Corbett, In this case, the court observed that the biological sexual constitution of a person is by birth. The natural development of organs of the alternative sex or by medical or surgical means cannot be changed at any cost. This means any operative intervention should be ignored.

Further in the case of R v. Tan also applied the principle given in Corbett v. Corbett. Under this case the court upheld the conviction which was imposed on Gloria greaves ( post-operative male to female transexual), continues being in law as a man,

A.B. v. Western Australia, In this case, the court considers the gender assignment act 2000. In this Act, concerning the issue regarding a recognition certificate that person has to go through a reassignment procedure. For that, this has to apply to the gender reassignment board. As per section 15 of this Act, the board has to be satisfied that the person believed her true gender. And has adopted the features of that gender.

National Human Rights Commission vs. State of Arunachal Pradesh, In this case, the court beautifully expressed that our country is governed by the rule of law. Indian constitution has given certain rights to citizens where everyone is equal before the law and equal protection of the laws.

Critical Analysis– NALSA Vs Union of India:

Well, we cannot ignore the actual fact that the TG community for long has faced many problems and suffered unbearable pain, humiliation, and torture. The transgender community was extremely excluded from Participation in society, and this is a major human right issue. They kept quiet and suffered but with the help of this judgment, finally, the condition of the transgender community has been improved. The impact of this judgment was not only in India but throughout the world. India follows democracy and democracy includes everyone irrespective of their caste, Sex and Religion, etc. Each and every person should be treated equally and should get equal protection of the law.

The court was constituted of two judges. In this judgment, Directions  To the Central and State Governments has been Issued by the court to grant legal recognition of gender identity whether it be male, female, or third-gender.

It was held by the Hon’ble Supreme Court that they believe that transgenders must be provided equal rights as provided to other citizens. They also have a right to equality in the community and must be treated equally. The Hon’ble Supreme court also found that the Applicant throughout her life faced various serious discrimination because of her gender identity.  It has been clear to the Applicant that the non-recognition of the identity of transgender persons by the state  leads to violation of most of the rights which are guaranteed to them by the  Indian constitution

Looking into the view by the learned counsel for the petitioner court states that Transgender people are oppressed and are faced with discrimination in the field of health care, employment, education, etc. in this view they must be provided equal rights in society. Further, The Court held that TGs are entitled to affirmative action as guaranteed under Article 15(4) and also to the reservation in the matter of appointment. The Hon’ble court declares that the State is bound to take affirmative action to give them due to representation in public.

However, some flaws are also there within this judgment. Transgender is an umbrella term for all the individuals whose personal identity is totally different from the gender given to them at birth, and in the case of India, there are a variety of identities, such as Kothi, Transman, etc. isn’t clearly printed in the judgment.

The Yogyakarta Principles weren’t accepted in its true spirit and letter. The issue of sexual intercourse too wasn’t looked deep into. The necessity for separate detention facilities wasn’t taken into thought. It conjointly doesn’t check on the atrocities by the Transgender community by the police who don’t listen and solve the grievances of the TG community. So the judgment does not seem to be a long-term and extensive solution to the problems faced by the transgender community.

CONCLUSION:

The judgment given by the Hon’ble Supreme Court was a life-changing incident for the TG community.

By giving this judgment the Supreme Court has restored the faith in the judiciary of the people. The community which was not given their rights and were considered as impure have been given their right by the government. Although legal recognition to the transgender community has been granted their present status still needs to improve. It all comes all the way down to the acceptance of the public.

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