Case Name: National Legal Service Authority V.

Union of India

Court: Supreme Court of India

Date: 15 April 2014

Citation: 2014 5 SCC 438

Bench: K.S. Radhakrishnan, A.K. Sikri

Petitioner: National Legal Service Authority

Respondents: Union of India & Ors

FACTS OF THE CASE

The main motive of the petitioners to file the petition was to end the exploitation, abuse, and
harassment faced by the community. To help them have access to basic facilities like
medical, educational, legal, etc. In epics like Ramayana and Mahabharata transgender people
like Hijaras and kinnars have been given utmost respect and admiration. It was after the
colonial rule in India that their status degraded in society.

The petition by NALSA aims to recognize the gender of the transgender community. Laxmi
Narayan Tripathi pleaded before the court to recognize their gender as the third gender so that
they also enjoy the rights and freedom which every other citizen of the country does. It was
also pleaded that when they’re denied as the third gender it deprives them of their legal rights
to choose and practice their sexual orientation.

Gender determination in India is done after the birth of the child and all the other laws
governing adoption, marriage, inheritance, succession, welfare is governed whether you’re a
male or female. Due to the non-recognition of the third gender, they face discrimination
throughout their life. Their Right to live with dignity under Article 21 and equal protection of
the law under article 14 has always been violated.

Thus, the petition was filed by NALSA and other petitioners which was clubbed by the Apex
court, and a landmark judgment was delivered by the supreme court.
ISSUES INVOLVED
Learned senior counsel appearing for the petitioner highlighted the traumatic experiences of
the community and also raised the issue of discrimination faced by the community as they’re
treated as outcasts and untouchables. The council also pointed out that discrimination on the
grounds of gender cannot be done by the State as it violates Articles 14, 16, and 21 of the
Indian Constitution. It was also submitted that transgender community people are the citizens
of India and if their gender identity still remains non- recognized it will be violative of their
Fundamental Rights.

Learned counsel Shri T. Srinivasa Murthy pleaded to declare the transgender community as a
Socially and Educationally backward community and all the benefits available to the socially
and educationally backward should be extended to them as well. Article 21 guarantees the
right to live with dignity thus to choose one’s gender identity is essential to living a life with
nobility. Thus, the community people should have the right of choice to whether opt for male,
female or transgender classification.

The other important issues that were raised were:

Whether a person has the right to recognize himself as a male if he’s born as female with
male orientations or vice versa or when a person has undergone surgical procedures to change
his/her sex.

The person of the transgender community who is neither male nor female has the right to be
classified under the Third Gender?

LAWS INVOLVED IN THE CASE

The case of NALSA V. Union of India &Ors involves Domestic as well as international laws
and Conventions.

The Domestic laws include:

Article 14, Article 15& 16, Article 19, and Article 21 of the Indian Constitution.

Article 14 and the Third gender:

No person shall be denied equality before the law or equal protection of law by the state, this
has been stated in Article 14 of the Indian Constitution. It imposes a positive duty on the state
to bring social & economic changes and ensure equal protection of laws. This article doesn’t
restrict its ambit to just males and females, thus, the transgenders/ hijras fall under this and
are entitled to equal protection by law.

Article 15& 16 and the Third gender:

All kind of gender-based discrimination has been prohibited under Article 15 & 16 of the
Constitution. Any kind of discrimination done on ‘sex’ will account for discrimination on the
ground of gender identity. The word sex used in Article 15 & 16 doesn’t only account to the
two binary genders – males and females but also includes those persons who do not keep
themselves under these two categories.

Article 19(1)(a) and the Third gender:

The right to freedom of speech and expression has been guaranteed under Article 19(1)(a).
This also includes one’s right to express his self-identified gender which can be expressed
through words, dress, action, behavior, or any other form. A person cannot be restricted in
showcasing his personal choice of dressing.

In the case of Doe V. Yunits et al1, the right of a person to wear a school dress that matches
her gender identity was upheld by the Superior Court of Massachusetts.
Article 21 and the Third gender

Article 21 has been recognized as the heart and soul of the Indian Constitution as it ensures
the Right to life and Personal Liberty. This fundamental right cannot be violated or be taken
away by the State also except the procedure established by law.

One’s right to dignity, right to privacy, right to personal autonomy, etc. has been ensured and
secured under Article 21 of the constitution. Gender identity’s legal recognition is a part of
right to dignity and freedom guaranteed under the constitution. People of the third community
have every right to live their life in a dignified and noble manner.

In the case of Anuj Garg V. Hotel Association of India2, the court held that personal
autonomy includes- negative as well as positive rights. The negative right includes the right
of not to be subjected to interference by others and the positive right includes making
decisions regarding their life, to be able to express themselves, and to choose which activities
to take part in. The intrinsic part of personal autonomy and self-expression is the self-
determination of gender and it falls under the ambit of Article 21 of the Constitution.
International laws and Conventions
United Nations have been an important and effective body in safeguarding the rights of
sexual minorities which also includes transgender people.

Article 6 of UDHR,1948 and Article 16 of ICCPR, 1966 declare that every person who is
born has the right to live and be protected by law and no authority has the power to deny any
person this right.

Article 17 of ICCPR ensures that no unlawful attack or interference should be done to the
privacy, family, home, correspondence or to honor or reputation and that everyone has the
right to be protected under law against such attacks.

A coalition of human rights organizations which included the International Commission of

Jurist and the International Service for Human Rights developed a set of International Legal
Principles to check out the Human Rights violation based on sexual identity and sexual
orientation.

From 6- 9 November 2006, a group of experts in Yogyakarta, Indonesia adopted the

Yogyakarta Principles on the use of international human rights law in connection to sexual
orientation and gender identity. In brief, the Yogyakarta Principles as adopted are as follows:

Principle 1: THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS

Principle 2: THE RIGHT TO EQUALITY AND NON-DISCRIMINATION

Principle 3: THE RIGHT TO RECOGNITION BEFORE THE LAW

Principle 4: THE RIGHT TO LIFE

Principle 6: THE RIGHT TO PRIVACY

Principle 9: THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION

Principle 18: PROTECTION FROM MEDICAL ABUSES

Principle 19: THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION

CEDAW (Convention on Elimination of all Forms of Discrimination Against Women),

Discrimination in employment has been prohibited under Article 11, European Convention of
Human Rights which sought to Protection of Human Rights and fundamental freedom,
Article 8&14 which ensures Right to respect for private and family life and non-
discrimination respectively and lastly, the Vienna Convention on Law of Treaties Article 31
& 32.

JUDGEMENT OF THE CASE

It was a division bench and the judgment was given by Justice K.S. Radhakrishnan and
Justice A.K. Sikri. Though the leading judgment was given by Justice Radhakrishnan Justice
A.K. Sikri also opined his view on the case.

The court looked into the judgments that were delivered by the court of foreign countries
namely- Malaysia, Pakistan, New Zealand, and English courts as well.

Firstly, In the case of Corbett V. Corbett3, the English Court had to deal with the gender of a
male to female transsexual in the context of marriage validity. The learned judge
demonstrated his view that the biological sexual constitution of a person is fixed at the time
of his birth and that any operative intervention should be ignored and it cannot be changed by
medical or surgical means.
This principle derived in the Corbett Case by the English Court was not supported by the
courts in other countries like New Zealand, Australia, etc. And was also criticized by medical
professionals.

In the case of Re Kevin4, an Australian case, the court held that for the purpose of marriage to
determine the sex of an individual was no ‘Formulaic Solution’. Matters like a person’s life
experience and self-perception were relevant and needed to be considered.
Looking into these landmark cases the supreme court also delivered a landmark judgment. It
was held that:
The right to self-determination has been provided by Article 21 and thus the gender to which
a person belongs has to be decided by the person concerned. The court said that gender
identity is an integral part of a person’s individual dignity and is the key to ‘personal
autonomy’ and ‘self-determination.’ Therefore, Hijras/ Eunuchs have to be considered as the
Third Gender, over and above the binary genders under Constitution and law.

The court rejected the ‘Biological Test’ and adopted the ‘Psychological Test’ for the
determination of gender and sex of a person. Article 14, 15, 16, 19, and 21 will not
exclude Hijaras from its ambit.

The expression used in Article 14 is ‘person’, in Article 15 & 16 has used the words like
‘sex’ and ‘citizen’, and Article 21 mentions ‘person’. The court upheld that all these
expressions will not just stick to the two binary genders but will also cover in it the
Transgender community and various directions were laid down by the court to safeguard the
interest of the trans people.

Justice A.K. Sikri completely agreed with the decision of Justice K.S. Radhakrishnan and
gave his views on the case, he remarked that equality in International Human Rights law is
based upon two principles namely- non-discrimination and reasonable differentiation. He
explained that when common public facilities are outside the reach of the Transgender
Community it leads to denial of rights. In a nutshell, it means embracing the belief in positive
rights and reasonable accommodation.

The SC also directed the Centre and the State to:

Legally recognize the third gender as it has recognized the male and female gender.

To take effective steps and treat them as socially and educationally backward and provide
them with benefits

To establish and operate different HIV surveillance centers for trans people as they face
several sexual issues.

To take measures and construct public toilets for the transgender community and provide
them with medical care.
To frame such schemes which help them to come out of their age back sufferings.

To create public awareness so that trans people also consider themselves as a part of this
society.

Help them regain their respect and status in the society which they once enjoyed in India.

CONCLUSION
On 15 April 2014, a landmark judgment was delivered by the Supreme Court of India in the
case of NALSA V. Union of India & Ors. This decision changed the lives of all those people
who fall under the Transgender community as the law gave them the status of ‘Third Gender’
in society.

The judgment came like a ray of hope for this community as they have been suffering for a
long time now. This judgment sought to improve the living condition of these people; it
finally gave them the legal status of ‘third gender’ in society. They can now enjoy each and
every right which all the other citizens of India can.

It is still a long run for this community as we still see them suffering and being victims of
abuse and harassment all over. But this judgment has somehow helped them to come out of
all this and live a dignified life.