NATIONAL LEGAL SERVICES AUTHORITY OF INDIA

V.
UNION OF INDIA

SUBMITTED TO: MR. RAJWANT RAO

(FACULTY: PUBLIC INTEREST LITIGATION)

SUBMITTED BY: PRIYANKA JAIN

ID NO. – MU13BBALLB05

SEMESTER XTH

MATS LAW SCHOOL, MATS UNIVERSITY, RAIPUR (CHHATTISGARH)

 National Legal Services Authority v. Union of India1

Introduction

The judgment was delivered in pursuance of a Public Interest Litigation filed by the National
Legal Services Authority (NALSA) seeking to address the grievance of the Transgender
Community, for short TG community, and praying for a legal declaration of their gender identity
other than the binary gender, i.e., male or female. A similar writ petition was also filed by
Poojaya Mata Nasib Kaur Ji Women Welfare Society seeking similar reliefs for the Kinnar
community.

The community coming within the umbrella term ‘transgender’ suffers tremendous trauma and
abuse from the society, as they do not fall under neither of the “socially-accepted genders”. The
non-recognition and non-acceptance from the society, which shuns the TG community, causes
this community to be side-lined and makes them untouchables.

The non-recognition of their sexual and gender identity is a violation of their various
Fundamental and Human Rights, which are protected by the Constitution of India and other
international Human Rights documents.

Statement of Purpose

I want to research about what is being done by our Judiciary body to authorize legal rights
and fundamental rights to those who never came and considered as any category of sex.

"In India, government regulation plays an important role in the fight against discrimination." Or,
conversely, "Indian government regulation has effect in implementing the laws related to
transgender.”

Facts of the Case

1
AIR 2014 SC 1863
Looking back into the history of the country, it can be seen that the Transgender Community was
accorded a special and important status. The Hindu mythology, Vedic and Puranic literatures
recognised them as the third gender and bestowed them great respect. They played an important
role in the royal courts and were considered to have the power to give blessings. This status of
the TG community changed after the advent of the British rule in India and the Colonialists
treated them in an inhuman manner.

As a direct consequence of the Criminal Tribes Act, 1871, there was an attrition of the status of
the TG community as the legislation deemed the entire community as innately criminal. Though
there has been marginal improvement in the condition of the TGs, especially after the repeal of
the said ‘notorious’ Act, their condition is not far from dismal. There is a need for affirmative
action for the upliftment of the community and for the improvement of their social status.

The atrocities faced by TG community, from the citizens as well as the state authorities, in turn,
is a violation of their many fundamental rights including those under Articles 14 and 21 of the
Constitution.

Reasoning

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 and
the recognition of the rights of the transgender community by international human rights
documents as well as human rights courts. 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 affirmative action for the advancement of minority and backward
communities. The TGs have been for long denied their rights under Article 15(2). They are
shunned from many public places including educational institutions, health care institutes, etc.
These rights are not subject to any disability, liability, restriction or condition. Moreover, under
Article 15(4)2 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 rights that is denied to the TG community is
their right under Article 19 (1) (a)3. 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.
This expression may be done through dress, words, action or behaviour or any other manner.

Article 214 is one of the most extensive fundamental rights provided by the Constitution. More
and more rights have been read into the said right to life and personal liberty. Article 21 has
within its ambit all those aspects of life, which gives meaning to a person’s life. Life does not
mean mere animal existence. It is the right to live with human dignity. It also includes one’s
personal autonomy. Expression of oneself according to his self-recognised gender is an aspect of
personal autonomy protected under Article 21.

Moreover, recognition of one’s gender identity lies at the heart of the right to dignity. It is a
positive right of persons to make decisions about their life, to express themselves in the way they
choose and also to do what activities that they choose to do. The judges laid down the
Psychological Test as against the Biological Test to identify the gender of a person.

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 recognising 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.

Legal Arguments

The petitioners were joined by a number of interveners in the case. The argument was
made that the recognition of only the binary genders of male and female under Indian law

2
INDIA CONST. art. 15, cl. 4.
3
INDIA CONST. art. 19, cl 1. .
4
INDIA CONST. art. 21
and the lack of legal measures to cater for the needs of the represented groups contradicted
a number of constitutional rights including the rights to a dignified life, equality before the
law, non- discrimination and freedom of expression.

The state government pointed out that an “Expert Committee on Issues Relating to
Transgender” had been set up and the petitioners’ views would be sought as part of that
process. Various states and union territories were also represented and argued that they had
taken steps to improve the conditions and status of members of the transgender
community.

Judgments and Dispositions

Decision

NB. The court was constituted of two judges. The leading judgment was given by Judge
K.S. Radhakrishnan, whose judgment was endorsed by Judge A.K. Sikri. However, the
latter also gave a separate opinion providing some additional comments. We summarise
below the leading judgment.

The Court noted that the transgender community (broadly defined by the Court to include
Hijras, eunuchs, Kothis, Aravanis and numerous others) has faced prejudice and
disadvantage since the eighteenth century in India. It acknowledged the discrimination that
transgender people face in areas of life including health care, employment and education,
which often leads to social exclusion. The Court declared that numerous steps were
necessary in order for centre and state governments to comply with the constitutional
rights to life, equality before the law, non-discrimination and freedom of expression.

In reaching its decision, the Court stated that gender identity is an integral part of the
personality and one of the most basic aspects of self-determination, dignity and freedom.
Thus, no one can be forced to undergo medical procedures, including sex reassignment
surgery, sterilisation or hormonal therapy as a requirement for legal recognition of their
gender identity. Psychological gender is to be given priority over biological sex. Rights
have to be protected irrespective of chromosomal sex, genitals, assigned birth sex, or
implied gender role.
The Court considered international human rights Conventions and norms to be significant
for the purpose of interpreting gender identity equality, and used them to shed light on the
interpretation of the Constitution. It stated that the wide discrimination faced by the
transgender community creates a “necessity to follow the international Conventions to
which India is a party and to give due respect to other non-binding international
Conventions and principles” and that any international convention not inconsistent with
the fundamental rights of the Constitution must be read into the national provisions.
Accordingly, it stated that it would recognise and follow the principles in the international
covenants and the Yogyakarta principles.

The Court held that the right to choose one’s gender identity is integral to the right to lead a
life with dignity and therefore falls within the scope of the right to life (Article 21). In this
regard, the Court emphasised the need to read the provisions of the Constitution in line
with present day conditions, based on a factual and social reality that is constantly
changing. Safeguarding the rights of transgender people was especially called for due to
the increasing universal recognition and acceptance of transgender issues. The Court noted
that Article 21 has been broadly interpreted to include all aspects that make a person’s life
meaningful. It protects the dignity of human life, personal autonomy and privacy. As
recognition of one’s gender identity lies at the heart of the right to dignity and freedom, it
must be protected under Article 21 of the Constitution.

With regard to the right to equality before the law (Article 14), the Court recalled that the
state shall not deny “any person” equality before the law or equal protection of the laws.
Article 14, in ensuring equal protection, imposes a positive obligation on the state “to ensure
equal protection of laws by bringing in necessary social and economic changes”.

Article 14 is a right enjoyed by “any person” (similarly, the reference to “citizen” in Article
15 is gender-neutral) and so applies equally to men, women and transgender people, who
do not identify clearly as male or female. Hence, transgender people are entitled to equal
legal protection of the law in all spheres, including employment, health care, education and
civil rights. Discrimination on the grounds of sexual orientation and gender identity impairs
equality before the law and equal protection of the law and violates Article 14.

Articles 15 and 16 prohibit discrimination in certain areas based on a list of grounds,

including sex. The reference to “sex” is to be understood as prohibiting all forms of gender
bias and gender based discrimination, including discrimination against transgender people.
The emphasis put on tackling sex-based discrimination in the Constitution means that
people have a “fundamental right to not be treated differently for the reason of not being in
conformity with stereotypical generalisations of the binary genders”.

Furthermore, Article 15 includes a requirement to take affirmative action for the

advancement of socially and educationally disadvantaged groups. The Court notes that
transgender persons have not been afforded special provisions as envisaged under Article
15(4) for the advancement of the socially and educationally backward. They constitute such
a group and the state is bound to take some affirmative action to remedy the injustice done
to them for centuries.

In addition, the Court stated that expressing one’s gender identity through words, dress,
action or behaviour is included in the right to freedom of expression (Article 19). Privacy,
self-identity, autonomy and personal integrity are fundamental rights protected by Article
19. As gender identity lies at the core of one’s personal identity, gender expression and
presentation, it has to be protected under Article 19(1)(a) of the Constitution. Often the state
and its authorities, either due to ignorance or otherwise, fail to digest the innate character
and identity of transgender persons, which it must do in order to realise their Article 19
rights.

On these bases, the Court upheld transgender persons’ right to self-identify their gender.
The Constitution requires equal treatment of all people regardless of their gender identity
or expression. The Court declared that the Centre and State governments must grant legal
recognition of gender identity as male, female or third gender. A full recognition is to be
given even in the absence of any existing statutory regime. Additionally, the Court
declared that educational, social and health care issues faced by transgender people must
be addressed both at the centre and state government levels.

The court further emphasised on the need for legal recognition of third or transgender identity
and concluded that they belong to a distinct socio-religious and cultural group and must be
considered as a “third gender”, apart from male and female.
Justice K.S. Radhakrishnan, speaking on behalf of the Court, concluded the judgement by
holding that discrimination on the basis of sexual orientation or gender identity includes any
discrimination, exclusion, restriction or preference, which has the effect of nullifying or
transposing equality by the law or the equal protection of laws guaranteed under our
Constitution. In light of the aforementioned, it made various declarations and directions to the
Centre and State Governments:

 Hijras, Eunuchs are to be treated as “third gender”.

 TGs have the right to decide their self-identified gender.
 Take steps to treat TG as socially and educationally backward classes of citizens in cases
of admission in educational institutions and for public appointments.
 Governments to operate separate HIV Zero-Surveillance Centres.
 Governments to seriously address the problems faced by TGs.
 Provision for separate public toilets and appropriate medical care in hospitals.
 Governments to frame various social welfare schemes for the betterment of TG.
 Governments to create public awareness so that TGs will not be treated as untouchables.
 Take measures to regain the respect and place of TG in the society which they once
enjoyed.

Critical Analysis

The judgment delivered by Radhakrishnan, J, made a detailed analysis of the transgender status,
not only in the international sphere but also in the Indian legal and cultural history. On the one
hand, the judgment addresses various issues and problems faced by the community but on the
other, certain obvious and important issues were superficially addressed.

The concurring opinion delivered by Sikri, J is almost as elaborate as the main judgment and
defines the rights of the TG community in a jurisprudential light. The learned judge made a
detailed analysis of Kantian criterion of justice, Aristotle’s equalitarian theory and Locke’s
conception of individual liberties. Giving due respect to these theories, the learned judge
dismissed them as irrelevant in the present scenario. He has rightly done so, as all the theories
are biased opinions of their thinkers, belonging to a different society and at a different time.
While agreeing to the reasoning put forth by his learned brother, 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 learned judge recognised the intricate web of rights associated with the recognition of
persons according to self-recognised gender. The TG community, along with their right to self-
recognition is deprived of educational facilities, medical facilities, the right to vote, the right to
own property, the right to marry, the right to a formal identity, etc. The individuals of the TG
community are deprived of these basic human rights that are recognised everywhere in the
world.

The judgment does not provide a long term and extensive solution the problems faced by trans
genders. It merely gives a cursory glance at these problems. The judges provide no descriptive or
comprehensive guidelines.

The TG community being a sensitive and vulnerable community should be given special
treatment that are meted out to the women in India. Special provisions of counselling and
interrogation should also be provided to the ‘third gender’ and not merely individuals who
recognise themselves as females. While the issue of separate public toilets was addressed by the
judgment, the need for separate detention facilities were not taken into consideration. One of the
biggest problems faced by the TG community is atrocity and cruelty meted against them by the
police force of the country; adequate measures to address this major problem must be taken up
by the wings of government.

Moreover, the issue of sexual intercourse though given a perfunctory glance was not looked deep
into. Though it was not a direct issue in the writ petition, this is an issue that is inextricably
linked with the rights of the TG community. The Yogyakarta Principles, which were relied upon
by the judges, was not accepted in its true letter and spirit. Paragraph 22 of the judgment is a
detailed reproduction of these principles. These principles clearly call for an amendment of
criminal law of the country so that their sexual and reproductive rights are not affected.
However, since this issue was already decided by the Supreme Court in the case of Suresh
Kumar Koushal v. Naz Foundation and Ors5 upholding S. 377 of the Indian Penal Code, an
opinion should have been made by the learned judges highlighting the importance of sexual
relations for persons in enjoying a dignified and meaningful life.

An appreciable factor of the judgment was its recognition of the TG community as a socially and
educationally backward community. Such classification, which acts as a positive discrimination,
is a much-needed action for the upliftment of the community.

Another significant aspect is the special medical attention that is sought to be given to this
community. Also, the measures to provide them a sense of belonging in the society by educating
the society as well as the community is a laudable solution put forth by the judgment.

This judgment was a long awaited one not only by the transgender community but also by human
rights workers. The TG community became the new ‘untouchables’ and the cruelties sustained
by them one too many. This was a first step to the amelioration of a community, marginalised
and abused, and for too long a time.

5
CIVIL APPEAL 10972 OF 2013
 Conclusion
In this case the following law has been taken into consideration. The matter carried a lot of
weightage with controversies, revolution and honor and pride of transgender. Hence considering
the facts and all the scenarios of the movements the Hon’ble Supreme Court of India has come
up with this tremendous landmark judgment.

Domestic Law

 The Constitution of India: Article 14 (equality before law), Article 15 (non-

discrimination), Article 16 (equality of opportunity in matters of public
employment), Article 19 (freedom of expression), Article 21 (right to life)

International Law

 International Covenant on Civil and Political Rights (ICCPR) Article 6 (right to

life), Article 7 (prohibition of torture or cruel, inhuman or degrading treatment),
Article 16 (recognition before the law), Article 17 (right to private and family life)
 Universal Declaration of Human Rights (UDHR) Article 6 (right to life)
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) Article 2, Yogyakarta Principles, Principles 1 (universal
enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right
to recognition before the law), 4 (right to life), 6 (right to privacy), 9 (right to
treatment with humanity while in detention), 18 (protection from medical abuses)

Also referred to (albeit not directly)

 Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) Articles 11 (discrimination in employment) and 24 (commitment of
State parties)
 Convention for Protection of Human Rights and Fundamental Freedoms
(European Convention of Human Rights), Article 8 (right to respect for private
and family life) and 14 (non-discrimination)
 Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of
International Conventions)