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The Supreme Court's Stand for Transgender Rights in India: National Legal Services Authority v/s Union of India (2014)

The National Legal Services Authority (NALSA) filed a Public Interest Litigation (PIL) in 2012 with the Supreme Court of India to defend and acknowledge the rights of transgender people. The landmark decision was rendered on April 15, 2014, by the Supreme Court of India in the matter of National Legal Services Authority v. Union of India. This verdict was significant since it upheld the freedom of transgender individuals to choose their own gender identification and recognized their rights. Justice K.S.P. Radhakrishnan and Justice A.K. Sikri pronounced this landmark judgement, acknowledging the historic injustice and violation of fundamental rights faced by the TG community.

The ruling recognized transgender people's access to the same fundamental rights as all Indian citizens, as well as their right to freedom to self-identify their gender. The ruling placed a strong emphasis on the necessity of welfare programs, equal opportunities in work and education, protection from discrimination, and legal acceptance of the third gender. Recognizing the transgender community's identity outside of the conventional male-female dichotomy was a major step toward equality and inclusiveness.

The ruling was revolutionary in many ways, particularly in the way it addressed the rights of India's transgender minority. The judgement promoted the complete legal acceptance of transgender people, recognizing their rights to healthcare, work, education, and other opportunities without experiencing prejudice. The TG community in India was given fresh hope and recognition by the ruling, aiming to knock down institutional hurdles and prejudices that had long oppressed and marginalized this minority community.

Understanding the Commencing: Background and Facts
The transgender community-often known to as the third gender-has always occupied a valued and respected place in Hindu mythology & ancient texts. They were regarded as having special talents and occasionally honoured for their spiritual roles and blessings.[1] However, the way the transgender population was viewed and treated drastically changed with the arrival of British colonial power in India.

A particular negative effect was the Criminal Tribes Act, which was imposed in 1871. Due to this legislation's classification of some groups, especially the TG community, as instinctively criminal, these groups have been stigmatized and marginalized. For many years, this unfair categorization led to prejudice & the denial of fundamental rights. Although the Criminal Tribes Act had been revoked, which was a good move, the transgender population was still marginalized and subject to prejudice. It is true that the transgender community's challenges have infringed upon their fundamental rights, including the Indian Constitution's Article 21 (right to life and personal liberty) and Article 14 (right to equality).

National Legal Service Authority, an organization aimed to provide legal assistance to marginalized populations, filed a writ petition in 2012 to bring light to the ongoing abuses of fundamental rights that transgender people face. Concurrently, a petition was filed by the Poojaya Mata Nasib Kaur Ji Women Welfare Society, which claimed remedies for the Kinnar community, an Indian subgroup of transgender people, addressing identical issues.

In addition, a person who identified as a Hijra, Laxmi Narayan Tripathy, entered the lawsuit to represent and defend the rights of the transgender community. Their involvement sought to guarantee that transgender people's opinions and viewpoints were taken into account during the court procedures, as well as to draw attention to the difficulties faced by these people.

The combined efforts of many groups and people brought attention to the dilemma of the transgender community and were crucial in securing the Supreme Court's formal recognition and defense of their rights. The culmination of these petitions and initiatives played a major role in the historic ruling that acknowledged transgender people's rights in India.

Summary of the Landmark Judgement
The Supreme Court of India's 2014 decision in National Legal Services Authority (NALSA) v. Union of India was a significant step towards recognizing the rights and dignity of transgender people. The decision emphasized the need for legal assistance and awareness initiatives to protect the rights of the transgender community and ensure their access to justice.

The court acknowledged that gender identity, defined as the fundamental feeling of being male, female, transgender, or transsexual, is a crucial aspect of existence and emphasized the need to grant third- or transgender-identifying identities legal status. The court concluded that discrimination based on sexual orientation and gender identity should not be exclusion, restriction, or preference that could eliminate or transform legal equality.

The court cited Part 21 of the UN Convention[2] against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment, which states that states must protect all individuals, including transgender individuals. The court also determined that transgender individuals have the right to reservation in appointment and affirmative action, as specified by Article 15(4).[3] The government was directed to ensure affirmative action aimed at uplifting the transgender population, including equal healthcare and job opportunities.

Analysis of the Judgement
Intro- Justice K.S. Radhakrishnan & Justice A.K. Sikri were the two-judge bench that heard this case. The judgement comprises Justice Radhakrishnan's opening the findings regarding society's moral shortcomings in embracing various gender identities and manifestations, as well as Justice Sikhri's recognition of the challenging task of transitioning between genders. While Justice Sikri had a different judgement or viewpoint on some areas of the case, both justices agreed on the majority of the ruling on transgender rights. It is imperative to underscore the substance of Paragraph 53 as stated in the judgement: "Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions". [4]

Transgender persons encounter systemic oppression and prejudice in several domains of life, encompassing healthcare and work. Given the lack of specific legislation inside the country, the Court deemed it necessary to maintain the aforementioned international conventions. The Supreme Court of India gave thoughtful consideration to the international point of view, declarations, covenants, conventions, reports, and the Yogyakarta Principles, in addition to the historical background of transgender people and the problems faced by them.

To further emphasize the worldwide agreement on recognizing and defending the rights of transgender people, the ruling also looked at a number of international treaties, declarations, and conventions, including those made by the United Nations. The ruling was based on several international court rulings, including those in England, Australia, New Zealand, Malaysia, Pakistan and other countries. The ruling offers a chronology of events and the development of psyche-based person recognition. According to Corbett v. Corbett,[5] an individual's gender was first determined by their biological traits at birth.

Justice A.K. Sikri, in agreement with Justice S.K. Radhakrishnan, emphasized that as part of the framework of international human rights law, the concept of equality is grounded upon two interconnected principles: non-discrimination & reasonable differentiation. The concept of Non-discrimination seeks to ensure that every individual possesses equal opportunities for utilizing their rights and freedoms without any kind of prejudice or bias. Discrimination occurs when individuals are unjustly deprived of equal possibilities for involvement.

Justice K.S. Radhakrishnan further clarified that sexual orientation and gender identity are two distinct notions throughout his remarks. One of the most important components of life is one's gender identity, which is defined as an individual's innate feeling of being male, female, transgender, or transsexual. However, a person's persistent romantic, emotional, and/or physical attraction towards another person is referred to as their sexual orientation.
  1. Cases Referred by the SC
    In Corbett v. Corbett[6], the English court ruled that determining a person's sex for marriage should involve chromosomal, gonadal, and genital tests. If all three aspects align, that would define a person's sex for marriage purposes. The judge argued that an individual's biological sexual constitution is fixed at birth and cannot be changed through natural development or medical procedures.

    This stance faced opposition in New Zealand and Australia, particularly from the medical profession. In Attorney-General v. Otahuhu Family Court[7] in New Zealand, Justice Ellis acknowledged the impact of surgical intervention on a transsexual individual's ability to function in their original sex.

    The European Court of Human Rights analyzed the case of Christine Goodwin v. United Kingdom[8], which claimed violations of provisions under the Convention for the Protection of Human Rights and Fundamental Freedoms (1997). The case focused on the legal standing of transsexual individuals in the UK, including their treatment in work, social security, retirement benefits, and marriage. The individual, who had a persistent inclination to wear female attire from a young age, underwent aversion therapy and was diagnosed as transsexual in the mid-1960s. Despite being married to a woman and having four children, she had a disparity between her sensed gender identity and her physical body. This case highlighted the rights-related concerns faced by transsexual individuals in the UK.

    The European Court of Human Rights has ruled in Van Kuck v. Germany,[9] where the applicant argued that German courts' refusal to reimburse her for gender reassignment procedures violated her right to a fair trial and constituted discriminatory treatment. The court cited Articles 6, 8, 13, and 14 of the 1997 Convention for the Protection of Human Rights and Fundamental Freedoms. The court emphasized the importance of personal identity in interpreting rights and reaffirmed its commitment to protecting the rights of transsexual persons, promoting personal growth and preserving their physical and moral well-being.

    In the case of National Human Rights Commission vs. State of Arunachal Pradesh, it was observed that the Rule of Law concept goes beyond the mere preservation of public order. It embraces the fundamental aspects of social life, with the objective of achieving a balance between the rights of individuals, the requirements of the community, and the rights of society as a whole. The primary objective of this endeavor is to promote and enable a life characterized by dignity, as well as to cultivate social advancement while ensuring the protection of individual rights and dignity.
     
  2. Violation of Fundamental Rights
    According to Justice K.S Radhakrishnan, it is imperative to interpret Article 51 of the Directive Principles of State Policy [11]in connection with Article 253 of the Constitution.[12] If Parliament enacts legislation that conflicts with international law, it is imperative for Indian courts to prioritize the execution of Indian law over international law. Nevertheless, in the absence of contradictory legislation, Indian domestic courts would maintain and abide by the fundamentals of international law.

    Article 14 [13]of the Indian Constitution guarantees equality before the law and equal protection of laws. However, the lack of recognition of Hijras/transgender individuals leads to exclusion from legal safeguards, making them vulnerable to mistreatment, aggression, and sexual abuse. This discrimination affects their opportunities for work, education, and healthcare. The lack of designated restroom facilities and sexual assault exacerbate these issues. Discrimination based on sexual orientation or gender identity undermines the principle of equality and infringes on equal protection.

    Articles 15 and 16[14]of the Indian Constitution prohibit sex-based discrimination, aiming to reduce gender prejudice and eliminate discriminatory practices. The founders prioritize the right to be free from sex discrimination, particularly for transgender individuals. However, they often face denials of rights, including freedom from handicap, liability, and public limitations. Affirmative action is crucial to address historical injustices and protect individual rights. Proactive state actions are needed to ensure adequate representation for transgender individuals and promote social equality.
Article 19(1)[15] of the Indian Constitution guarantees fundamental rights to citizens, with the State having the authority to limit their exercise. However, these rights are limited to Indian citizens. The personality of transgender persons is frequently assessed based on their behavior and appearance, and it is not within the State's authority to impose restrictions or intrusions on their inherent nature. Government bodies frequently have difficulties in acknowledging the innate essence and self-perception of transgender individuals. Transgender persons possess intrinsic rights such as privacy, self-identity, autonomy, and personal integrity. It is the duty of the State to safeguard and acknowledge these rights.

The provision outlined in Article 21[16] ensures the safeguarding of an individual's "personal autonomy." The case of Anuj Garg v. Hotel Association of India[17] emphasized the notion that personal autonomy involves the entitlement to be free from external interference and the right of people to exercise agency in making life choices, expressing themselves, and selecting their pursuits.

Gender self-determination is a fundamental part of personal autonomy and self-expression, embracing individual freedom as protected by Article 21 of the Constitution of India. The acknowledgment of an individual's gender identity is crucial for sustaining the idea of human dignity. Gender is a crucial aspect of a person's self-perception and substantially impacts the formation of their total identity. Recognizing gender identity within the legal system is an essential component of the fundamental rights to dignity and freedom guaranteed by our Constitution.

The Court laid a strong focus on the fundamental concept of upholding human dignity and freedom, which lies at the heart of the Convention. It has been asserted that in the present-day context, the recognition of transsexual people claims to personal development, comprehensive physical and moral well-being, similar to that of other members of society, shouldn't pose as a controversial issue requiring further clarification.

The Court emphasized that the current situation, in which post-operative transsexual individuals find themselves in an ambiguous or interim condition that is not clearly recognized as either male or female, is no longer deemed acceptable or justifiable. This statement highlights the pressing necessity to recognize and protect the rights of transgender persons, while also emphasizing the importance of avoiding their placement in an uncertain or marginalized social status.

Conclusion:
The Supreme Court has upheld transgender community rights, ensuring legal recognition, protection from discrimination, and compliance with global efforts to defend marginalized populations. The ruling mandates the inclusion of a third gender category in official documents like ration cards and passports. Transgender individuals, regardless of population size, are granted Indian citizenship and can participate in government projects and programs. The Election Commission of India has launched initiatives to simplify voter registration.

The Supreme Court plays a crucial role in advocating for a socially inclusive approach to safeguard the rights of the transgender population. Its decisions, particularly the NALSA judgement, set a legal precedent by acknowledging the rights of transgender individuals to determine their own gender identity, establishing the groundwork for the incorporation of a third gender classification in official records. The Court also emphasized the need to safeguard marginalized people by taking into account global perspectives and adhering to international human rights norms.

Justice Radhakrishnan's statement brought attention to social biases and unfair treatment experienced by the transgender community, advocating for a change in perspective and accepting diverse gender identities. The Court's actions have practical implications for policy-making, such as mandating the inclusion of a third gender category in official documents and initiatives by organizations like the Election Commission of India. The Supreme Court's position has acted as a catalyst for wider cultural transformation, increasing awareness of the difficulties faced by the transgender community and promoting acceptance and understanding of various gender identities.

Backlash
The TG community has faced long-term suffering, abuse, and isolation, but a recent verdict has brought significant improvements to their situation. This ruling raises human rights concerns as it violates democratic principles of equal participation and involvement for all individuals, regardless of their diverse characteristics. The principles of equality and protection under the law are essential for global rule of law.

However, the judgement has significant deficiencies. The provided statement lacks clarification in terms of the vast variety of transgender identities that exist in India, including but not limited to Kothi and Transman. The lack of involvement has been brought to attention by commentators and collectives, such as Orinam.

Gee Imaan Semmalar characterizes the judgement as "confusing," since it combines different transgender identities and categorizes all Hijras as belonging to a common 'third gender' category.[18] In addition, Dutta brings attention to a paradox within the judgement, as it seems to support the notion of self-identification while simultaneously supporting the use of more extensive psychological tests.

The judgement highlights the challenges in examining sexual orientation and gender identity in Indian homes, emphasizing the need for a secure, inclusive environment. It also highlights the underrepresentation of transgender individuals in parliamentary institutions and the need for streamlining gender legislation implementation processes. The bureaucracy needs more training on gender issues and sex education.

End-Notes:
  1. M. Michelraj, Historical Evolution of Transgender Community in India, Asian Review of Social Sciences Vol. 4, No. 1 (2015), pp. 17-19
  2. UN Convention, Part 21
  3. Constitution of India, Art. 15(4)
  4. National Legal Services Authority v. Union of India (2014) 5 SCC 438
  5. Corbett v. Corbett 1971 P 83
  6. Idib
  7. Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603
  8. Christine Goodwin v. United Kingdom, (2002) 35 EHRR 18
  9. Van Kuck v. Germany Application No. 35968/97
  10. National Human Rights Commission vs. State of Arunachal Pradesh AIR 1996 SC 1234
  11. Directive Principles of State Policy, Art. 51
  12. Constitution of India, Art. 253
  13. Constitution of India, Art. 14
  14. Constitution of India, Art. 15, 16
  15. Constitution of India, Art. 17(1)
  16. Constitution of India, Art. 21
  17. Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1
  18. Shreya Ila Anasuya, 'Over Two Years After Landmark Judgment, Transgender People Are Still Struggling', The Wire (2016), available at: https://thewire.in/gender/over-two-years-after-landmark-judgment-transgender-people-are-still-struggling (last visited on November 22nd, 2023).

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