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Case - Important SC Judgements for UPSC

NALSA Case - Important

SC Judgements for UPSC

Many Supreme Court judgements have

changed the face of Indian polity and society.
These landmark SC judgements are very
important segments of the UPSC syllabus. In this
series, we bring to you important SC judgments
explained and dissected, for the benefit of IAS
aspirants. In this article, you can learn all about
the NALSA case (2014). Get a list of landmark SC
judgements for the UPSC exam in the linked
article.

NALSA Case (2014) UPSC Notes:-

Download PDF Here

NALSA Case
Case Summary – National Legal Services
Authority Vs Union of India

Introduction

India as a society has always lacked gender

awareness, and the same is reflected not only in
the general attitude of the society but the law of
the land too. Specific legislation and provisions
are needed that will safeguard the rights of the
individuals who do not identify as either male or
female. The story of people who are generally
referred to as transgender is a story of perpetual
pain, misery, and agony. Just because they do
not fit with the “norms” that society has
generally accepted, they have had to face not
only the denial of rights but also constant
physical and mental violence. They are
considered to be outcasts and kept far away
from participation in various societal activities
be they social, religious, or political.

In India, the rights of these individuals

mainly arise out of various Articles of Part
III of the Constitution due to the lack of
specific legislation to safeguard their
rights.

However, at the international level, their

rights are well established in various
international legal documents which
include the International Covenant on Civil
and Political Rights (ICCPR), the Universal
Declaration of Human Rights (UDHR), the
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT), the Convention for
Protection of Human Rights, the
Yogyakarta Principles and Fundamental
Freedoms (European Convention of
Human Rights).

Background

Two writs were filed to protect and safeguard

the rights of individuals that belong to the
transgender community.

1. The National Legal Services Authority,

which is constituted under the Legal
Services Authority Act, 1997, filed a writ
petition (writ petition no. 400 of 2012).

2. It was followed by another writ petition

(No. 604 of 2013) which was filed by Poojya
Mata Nasib Kaur Ji Women Welfare
Society, a registered association for the
protection of the rights of the Kinnar
(Transgender) community.

3. Laxmi Narayan Tripathi, who considered

himself to be Hijra, also approached the
court and was also impleaded in the
present case. He claimed that being a
hijra, his rights as guaranteed by Article 14
and 21 were being denied and the Court
had to intervene so that he and other
members of his community are not
discriminated against anymore.

Issues involved

At the core of the current petitions were

the issues that revolved around gender
identity and the protections that were
necessary to safeguard the rights and
interests of persons who identify
themselves with the third gender.

Another question was whether a person

who is born male but has female
orientation has the right to be identified as
a female; the same question arises when
an individual uses surgery to change
his/her sex.

One more issue that the petitioners raised

was whether a person who does not
identify either as a male or a female has
the right to be categorized in a “third
gender”.

Petitioners’ arguments

The petitioners through their counsels

vehemently argued that the concept of binary
genders strikes at the core of the Right to
Equality (Article 14), Right to Life and Personal
Liberty (Article 21), and Freedom of Expression
(Article 19). The normalization of binary genders
has further victimized and alienated individuals
that do not identify with either of the genders.
They further argued that due to non-
identification as the third gender, the basic
human dignity of such individuals is violated
which marginalizes them and forces them to
live on the fringes of society for no fault of theirs.

Respondents’ arguments

The respondents, on the other hand, argued that

the state had set up an “Expert Committee on
Issues Relating to Transgender” which is
considering all kinds of opinions to help
transgender individuals live a more prosperous
and dignified life. They also contended that the
Committee will also consider the views of the
petitioners so that a more robust policy is
framed in this respect. Several states and union
territories argued that they have taken a
significant number of steps for the betterment
of the lives of the transgender community.

NALSA Case Judgement

The judgement was delivered by a two-judge
bench comprising of Justice K.S. Radhakrishnan
and Justice A.K. Sikri on 15th April 2014 although
Justice Sikri gave a different opinion with some
additional comments.

The court in its landmark judgement relied

on various judgements from foreign courts
like New Zealand, Australia, Malaysia,
Pakistan, and England.

The Court made a distinction between

Biological sex and Psychological sex.

The Court said no to gender identification

based on biological sex and gave full
importance to identification based on
psychological sex.

The Court ruled that all provisions in the

international conventions including the
Yogyakarta Principles must be recognized
and followed provided they align with the
fundamental rights guaranteed by Part III
of the Constitution.

The Court held that transgenders fall

within the purview of the Indian
Constitution and thus are fully entitled to
the rights guaranteed therein.
Article 14 guarantees equality to “any
person” which means man, woman,
and transgender, and as such, they
are also guaranteed equal
protection of the law.

They have equal rights in

employment, health care, education,
and civil rights.

Discrimination on the grounds of

sexual orientation and gender
identity represents inequality before
the law and unequal protection of
the law and violates Article 14.

The Court further added that

transgender individuals have
freedom of expression under Article
19 whereby they can talk, dress, act,
and behave in a manner they like.

They also have a right to live a life of

dignity under Article 21.

The Court held that the State and Central

governments must grant transgenders full
recognition in the eyes of the law so that
they can get education and healthcare
without being subjected to any kind of
discrimination.

The Court also decided that Hijras,

Eunuchs are to be treated as the “third
gender”.

It made various declarations and

directions to the Centre and State
Governments such as to operate separate
HIV Zero-Surveillance Centres, provision
for separate public toilets, and
appropriate medical care in hospitals for
transgenders.

Frequently Asked Questions

about National Legal Services
Authority (NALSA) vs Union of
India Case

Q1 What is the function of NALSA?

The principal objective of NALSA is to provide

free and competent legal services to the
weaker sections of the society and to ensure
that opportunities for securing justice are
not denied to any citizen by reason of
economic or other disabilities, and to
organize Lok Adalats for amicable
settlement of disputes.

Q2 What was the judgement of the NALSA

case?

The NALSA case judgement led to the

recognition of transgender people as the
‘third gender’ by the Supreme Court of India,
affirming that the fundamental rights
granted under the Constitution of India will
be equally applicable to them, and gave
them the right to self-identification of their
gender as male, female or third gender.

Conclusion

This judgement came as a fresh ray of hope for

the transgender community who have long
suffered in silence in the face of large scale
discrimination and social injustice. We cannot
be naive to believe that this judgement will
change the way society treats transgender
individuals but it is a start to right the wrongs
that have taken place against transgenders for
centuries together. As for giving transgenders
equal rights in our socio-religious and socio-
political activities, there is a very long way to go;
for now despite this judgement they are still
either propping in the mainstream society or
outcasts that live on the fringes.

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