National Legal Service Authority (NALSA) vs Union of India

15th April 2014, marking a rising sun for the country as we welcome a landmark judgment by the appellate court of the nation, the Supreme Court. 

The bench of Justice K.S. Radhakrishnan and Justice A.K. Sikri gave the verdict in the proceeding of the National Legal Services Authority (NALSA) v. Union of India. 

The ruling declared that India recognizes a third gender category and that all the fundamental rights are accessible to them without bias or discrimination. Citizens, too, are given the opportunity to self-determination of gender. 

The judgment gave shelter to the transgender community, who have long faced the issues of abuse, harassment, violence, and torture. The court further said that the non-compliance will ultra vires Articles 14, 15, 16, 19, and 21 of the Indian Constitution.

Historical Background

The concept of transgender is not new, especially in a country like India, which has mythological beliefs related to it. Some of the most glorious ones are- 

1. Ramayan– Lord Rama gave extraordinary powers to Hijras (eunuchs in India) and other transgender people to bless on occasions like childbirth and marriage. 

The benison was provided in response to the instance when Rama asked no one to follow him during his exile for fourteen years with his wife, Sita, and his brother, Lakshman. Everyone left, but Hijras did not, which impressed Rama. 

2. Mahabharat– Aravan, the son of Arjun and Nagakanya, sacrificed himself to Goddess Kali to make Pandavas win the war. However, he put forth a condition to spend his last night as married. No woman agreed to marry him, and then Lord Krishna converted himself into a woman, Mohini. The Hijras from Tamil Nadu call themselves Aravanis, as they consider him their predecessor. 

3. Kamasutra– A text on human sensual behaviour mentions a third gender, ‘Tritiyaprakriti.’ 

4. Islamic Era– Hijras held prominent administrative posts during the times of the Mughal and Ottoman Empires. 

Facts

An Indian statutory body constituted to provide free Legal Services to the weaker sections of society, NALSA filed a writ petition in 2012 (No. 400 of 2012) with the Supreme Court of India. 

Another writ petition in 2013 (No. 604 of 2013) by Poojya Mata Nasib Kaur Ji Women Welfare Society followed the previous writ to protect the rights of the Kinnar (transgender) community. 

Laxmi Narayan Tripathi proclaimed a Hijra and pleaded before the court in the present case. The plea was to recognize their gender identity as a ‘third gender.’ 

It further stated that it prevents them from exercising their legal rights to choose their sexual inclinations as it is against Articles 14 and 21 of the constitution- Rights to equality and equal protection of the law and the right to life with dignity, respectively.

Issues

As stated in the facts, the primary concern of the affirmed case was to raise an issue of ‘Gender Identity.’ The following were the concerns or the issues raised in it- 

1. Are sex and gender the same or different?  
2. Is it necessary to protect the rights and interests of third-gender people?
3. Can a person born male but with a female orientation have the right to identify as female, or vice versa? The same question arises if the person has used the surgery to change sex. 
4. Can someone call themselves a third gender if they do not identify as male or female?

Remedies

1. Sex and Gender are two distinctive concepts. The former refers to the biological attributes, whereas the latter refers to the behaviours, activities, societal and cultural norms. 
2. Protecting the rights and interests of third-gender people is crucial. They have the same fundamental rights as any other citizens of India. 
3. An individual can identify as a gender assigned from the sex through self-identification or surgery. 
4. People who do not identify as male or female have the right to identify as a third gender. 

Arguments On Behalf Of Petitioners

The petitioner claimed they are neither considered male nor female and not even identified as a third-gender person, depriving them of fundamental rights. It thus violates Article 14, the Right to equality; Article 19, the Right to freedom of expression; and Article 21, the Right to Life and Personal Liberty. They require moral support in education, public places, and healthcare. 

The chief contentions raised by the petitioner are as follows- 

1. The community faces discrimination in various spheres of life, including employment and housing. 
2. Binary gender classification lacks the biodiversity of gender identities and their expressions. 
3. The marginalized treatment is a violation of fundamental rights under the purview of the Indian Constitution. 
4. The Indian Government has not taken adequate steps to eliminate the discrimination faced by the third gender, and thus, the court should step in and protect their rights. 

Arguments On Behalf Of Respondent

The Additional Solicitor General, who appeared for the Union of India argues that the state has formed an Expert Committee under the Ministry of Social Justice and Empowerment. The committee will deal with the problems relating to transgender people. 

The chief contentions raised by the respondent are as follows- 

1. The constitution already provides adequate protection for fundamental rights to all its citizens, which includes transgender people as well. 
2. It is not required to provide a third gender category to transgender people as males and females; they can be recognised and represented through the two categories. 
3. The binary gender classification is recognisable from the administrative perspective as a third gender, which will create chaos and problems. 

Decision

The NALSA vs. Union of India case marked a historical landmark judgment by the Supreme Court of India on April 15, 2014. A two-judge bench of Justice K.S. Radhakrishnan and Justice A.K. Sikri gave the verdict. The below-mentioned are the critical observations made by the court. 

• The court differentiated between biological sex and psychological sex as the former is what we have since birth, and the latter is what we identify ourselves as, and both can be different. The court reaffirmed that psychological takes priority over biological.

• The court noted that “transgender is an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.” 

• The court guaranteed fundamental rights to all under Articles 14, 15, 19, and 21. 

1. Article 14 states, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Thus, transgender people, too, are entitled to the same opportunities for employment, education, and other civil rights. Discrimination on the grounds of gender identity violates Article 14 as it represents inequality before the law and unequal protection of the law. 
2. Article 15 (2) states, “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any restriction.” The court asserted that the third gender people are equally legally entitled to access public places. 
3. Article 15 (4) states, “The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens.” Article 16 (4) states, “Nothing in this article shall prevent the State from making any provision for the reservation of appointment in favour of a backward class of citizens.” It asked the government to treat them as a socially and economically backward class (SEBC) so the state government could extend reservations to them in public employment and educational institutions. 
4. Article 19 (1) (a) provides all citizens the freedom of speech and expression. Thus, under this provision, privacy, self-identity, personal integrity, and autonomy are safeguarded. 
5. article 21 states, “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” Thus, discriminating against the third gender will violate the Fundamental Right.  

Utilizing these constitutional provisions, the court unequivocally repudiated all delusory norms by extending constitutional rights and equality to the third gender. 

• The court took to international instruments to get a grip on the applicability of the right to privacy. There was no specific legislation to deal with the third gender identity with the domestic laws. 

1. Article 12 of The Universal Declaration of Human Rights says, “No one shall be subjected to arbitrary interference with his privacy,” and 
2. Article 17 of The International Covenant on Civil and Political Rights mentions, “No one shall be subjected to unlawful interference with his privacy,” was cited

• After scrutinizing various cases from many other foreign countries, like Australia, Malaysia, and The United Kingdom, the following judgment gave its verdict. International conventions inclusive of Yogyakarta Principles, a set of principles in international human rights law concerning sexual identity, must be followed and aligned concerning the fundamental rights undertaken by the constitution in Part III. 

For instance,

1. The Sex Discrimination Act of 2013 in Australia, and  
2.  The Gender Recognition Act of 2004 in the United Kingdom, and 
3. Transsexual Law, 1980 in Germany, prevents discrimination based on gender identity. Corbett v. Corbett and Attorney-General v. Othahuhu Family Court were disregarded due to their importance to biological tests, whereas, the division bench asserted the need for psychological tests.

•  It declared that Hijras and other transgender people would formally be entitled as the ‘third gender’ and not be coerced to fit into the male or female category but gave a fair opportunity to choose among them.
• The court asked the Expert Committee to examine the judgment and implement their recommendations within six months. 

Directions

The further were the directions given by the Supreme Court to the Government- 

• Granting the right to people to self-identify as male, female, or third gender. 
• Treating them as SEBC and providing reservations in educational and job opportunities. 
• Ensuring access to healthcare, housing, and education without discrimination or marginalization. 
• Establishing separate public washrooms
• Providing medical care in hospitals 
• Creating public awareness and welfare schemes for the third gender to eradicate the biases against them.
• Addressing mental health problems, such as gender dysphoria, societal pressure, and anxiety. 
• Operating separate HIV Centers as they face several sexual health issues 

Critical Analysis

The fact that the court provided immense relief to the transgender community, who were still not given equal status regarding the binary genders, cannot be overlooked. The exclusion of transgender people from societal participation is a paramount human rights issue. 

However, there are shortcomings in the judgment as well. A few of them are listed below-

• Discrepancy regarding gender and sex- The court did not clarify the distinction between gender and sex and, instead, confused between the two by referring to male and female as gender, not sex. 
• Usage of the term: “Transgender people”- The court generalized the word by referring to it as transgender people, and it stands inadequate in the present realm of LGBTQIA+ 
• Lack of specific legislative measures-Transgender people should get equal rights in every aspect, like any ordinary man or woman, such as using public dormitories. To ensure the exact multiple domains backed it. 

However, it failed to foresee that it also requires establishing separate prison cells for the third gender, considering the always heightened crimes against the third gender people in jails, myriads of times by the uniformed persons. 

Instead, it asked the government to take various measures to address the issue. The orders and directions issued by the court were so broad and vague that their disobedience would be tough to challenge. 

• No timeframe- The court directed the government to ensure that the rights of the third gender are protected and that they are not victimized or prejudiced in society. However, the court needed to provide an adequate time frame, which led to procrastination and non-compliance by the governments, and the stipulated guidelines to date are yet to be framed. 

Conclusion

The judgment emerged as a new source of optimism for the transgender community, which has endured existence discrimination and social injustice in silence for a long time. 

It would be unrealistic to assume that the judgment will completely transform how society perceives and treats transgender individuals. 

Nonetheless, it marks the commencement of rectifying the historical injustices transgender people have faced for centuries.

The judgment acknowledged the third gender, and it also upheld the validity of fundamental rights to them. It also directed the state to uplift them socially and economically by providing welfare schemes and reservations. 

It helped raise awareness about the non-binary gender and propelled modification to address their issue and accept them as a part of the societal community.

This article has been contributed by Priyal Bansal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow.