National Legal Services Authority v. Union of India & Ors

Name:National Legal Services Authority v. Union of India & Ors

Citation: AIR 2014 SC 1863, (2014) 5 SCC 438, 2014 INSC 275  

Court: Supreme Court of India,

Bench composition: 2-judge bench, Justice K.S Panicker Radhakrishnan and Justice Arjan Kumar Sikri

Date: April 15, 2014.

Introduction

The transgender community is not a modern phenomenon but has a strong historical presence across different cultures and societies including the Mahabharata and the Jain texts. The historical role of TG community is discussed in detail in the work of Gayatri Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India.”[1]

However, with the onset of British colonialism, the TG community was criminalized and punished under statutes like the Criminal Tribes Act, 1871. In Queen Empress v. Khairati[2], a transgender person was arrested and prosecuted under Section 377 of IPC which penalised all penile- non-vaginal sexual acts between persons, including anal sex and oral sex associated with the transgender persons.

Facts of the case

The Transgender community (or the TG community) is a highly marginalized and often overlooked section of people in our society. They are ridiculed and looked down at public places and are deprived of even the basic rights including the right to vote, contest elections etc. They are ousted from their homes, face frequent molestation, sexual harassment and abuse even within their family.

The National Legal Services Authority (NALSA) is a statutory body established to ensure free and competent legal services to the marginalized communities and to make justice accessible to all irrespective of their socio-economic conditions. In the light of the sufferings faced by the TG community, NALSA joined by transgender activists like Lakshmi Narayan Tripathi filed a Public Interest Litigation for the recognition and the amelioration of the transgender community.

Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.[3]

In light of the continued discrimination and absence of legal recognition, the petitioners approached the Supreme Court seeking constitutional protection and recognition of transgender persons as a “third gender”.

Legal Issues

The following are the legal issues which are considered by the court:

1. Whether transgender persons have the right to legal recognition of their gender identity under the Constitution of India.
2. Whether non-recognition of transgender persons violates Fundamental Rights under Articles 14, 15, 16, 19, and 21.
3. Whether gender identity and self-identification are protected under the right to dignity, autonomy, and personal liberty.

Arguments presented

• Petitioner’s arguments – The petitioners relied upon various international human rights instruments protecting sexual minorities, including the Universal Declaration of Human Rights, 1948 and the International Covenant on Civil and Political Rights, 1966 (ICCPR). Reference was also made to the Yogyakarta Principles relating to sexual orientation and gender identity. The petitioners criticised the principle laid down in Corbett v Corbett[4] that a person’s legal sex is determined solely on the basis of biological characteristics at birth. Reliance was further placed on legislations and developments in various countries recognising the rights of transgender persons, including the Gender Recognition Act, 2004 in the United Kingdom, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 in Australia, and European Union legislations. The petitioners argued that the growing acceptance of transgender rights in international law should also be recognised in India. The transgender population face multiple forms of oppression which is clear from the UNDP Report on “Hijras/transgenders in India: HIV Human Rights and Social Exclusion” which states that the HIV Human Immunodeficiency Virus and Sexually Transmitted Infections (STI) is now increasingly seen in Hijras/transgenders population[5].
• Respondent’s arguments – The Union of India did not seriously dispute the rights claimed by the petitioners. The respondents submitted that steps were already being taken for the welfare of transgender persons, including the constitution of an Expert Committee to examine issues relating to their social, educational and economic conditions. It was further submitted that certain State Governments had initiated welfare measures for the transgender community.

Court’s Reasoning and Analysis

In the proceedings of the case, K.S Panicker Radhakrishnan and Justice Arjan Kumar Sikri observed that the Indian law generally recognizes only the binary genders – male and female assigned to an individual at the time of birth whereas international conventions and norms recognize the concept of gender equality. Article 253 of the Constitution along with the directive principles under Article 51 empowers the Parliament to make legislations in conformity with international conventions or treaties.

The Court also pointed out that Article 14 ensures the “right to equality” to every “person” including male, female or transgenders. Articles 15 and 16 prevent discrimination including the ground of ‘sex’. The freedom of expression guaranteed by Article 19(1)(a) also includes one’s right to expression of his self-identified gender which can be expressed through dress, action, behaviour or other forms. The right of identification and expression of one’s gender also falls under the right to life and dignity assured by Article 21 of the Constitution. Thereby, the court addressed the first and the second issue.

The Court addressed the third issue by citing the Anuj Garg v. Hotel Association of India[6],  which held that personal autonomy under Article 21 includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in.

The Court also acknowledged that some states like Tamil Nadu has taken welfare measures to safeguard the TG community. The Court preferred to follow the “psychological test” rather than the “biological test” in determining the gender of an individual. It had been recognised that the non-recognition of transgender population led to the oppression and discrimination they had to face in the society and that the individuals should be granted the “right of choice” in every aspect of their life including one’s gender.

The Court referred case of State of Karnataka v. Rangnatha Reddy[7] which laid down socio- cultural changes are the source of the new values. The Court also recognized human beings as the valuable asset of the society and that they cannot be forced to accept their biological gender and suppress their psychological sex. The bench asserted that even though there have been marginal improvements in the socio-economic conditions of the TGs, they still face multiple forms of oppression in various fields including health care, employment, education etc.

Hence the honourable judges firmly opined to recognise transgender community as a “third gender” thereby assuring the enjoyment of their rights and freedoms and eradication of the social stigma on transgenderism. There is a need for a new and dynamic meaning of law with the inclusion of rights of TGs as well. In this process, the first and foremost right is to recognize TGs as ‘third gender’ in law as well.

Judgement and Ratio Decidendi

In the light of the above facts mentioned and the precedents cited, the Apex Court ruled that transgender communities such as the Hijras, Eunuchs would be treated as a “third gender” apart from the binary gender of male and female for the protection of the rights and freedoms of the TGs. Direction was also given to the centre and the state governments to grant legal recognition to their gender identity.

The bench resolved the first issue by stating that as per the values of equality, dignity and liberty guaranteed under Articles 14, 15, 16, 19 and 21, the transgender population had the right to legal recognition of their gender identity under the Constitution of India. This subsequently resolved the second issue and enunciated that non-recognition of transgender persons violates Fundamental Rights under Articles 14, 15, 16, 19, and 21. The precedent cited in Anuj Garg v. Hotel Association of India[8] that personal autonomy under Article 21 includes positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in, dealt with the third issue asserting that gender identity and self-identification are protected under the right to dignity, autonomy, and personal liberty.

The Court also gave directions and guidelines for the promotion of the liberty and interests of the TG community such as treating them as socially and economically backward class, operating separate HIV surveillance centres, separate toilets, proper medical care and welfare schemes.

The ratio decidendi of the case is that transgender persons have a constitutional right to self-identify their gender identity and are entitled to equal protection under Articles 14, 15, 16, 19 and 21 of the Constitution. The non-recognition of transgender persons violates their rights to equality, dignity, autonomy and personal liberty.

Critical Analysis

This judgement is the first major judgement to legally recognize transgender persons as a “third gender” in India. This expanded the constitutional protections and safeguards beyond the male-female gender and introduced the concept of inclusivity. Provisions of law were given a progressive dimension such as Articles 14, 15, 16, 19 and 21 to incorporate gender inclusivity. The court upheld the principle of individual autonomy by preferring psychological sex or self- identified gender rather than forcing the biological sex determined at the time of birth. The decision relied on Yogyakarta principles and international principles bringing Indian constitutional law closer to global legal framework.

The TG population was granted social and legal recognition and gave visibility and constitutional legitimacy to them. This decision greatly influenced the later judgements such as Navtej Singh Johar v. Union of India[9] which decriminalised consensual same-sex relations under Section 377 and K.S Puttaswamy v. Union of India[10] which established right of privacy as a fundamental right. Many welfare measures were introduced by the State such as reservations, healthcare, separate public facilities and welfare schemes.

However, we have to admit the gap between judgement and its implementation. Most of these measures are still poorly implemented or perhaps not implemented at all. No matter how inclusive the law evolved, the social stigma and discrimination continue to exist in the society.

The main strength of this judgement is that it opted for a human centric approach, placing dignity, autonomy and identity at the centre of constitutional rights. It adapted the principle of “transformative constitutionalism” thereby adapting the Constitution to social realities. The meaning of equality was expanded to incorporate all kinds of gender identities.

However, the court issued broad directions but did not create strong enforcement mechanisms. The court declared transgender persons as socially and educationally backward but the practical framework remained unclear. Even while recognising “third gender”, the judgement still partly operated within traditional gender categories.

Despite certain practical limitations in implementation, the judgement remains to be a milestone in Indian jurisprudence that recognised the dignity, autonomy and identity of transgender persons in India.

Conclusion

The NALSA v. Union of India[11] is a landmark decision in Indian constitutional jurisprudence which recognised transgender persons as a “third gender”. The decision enhanced the conditions of the TG community and laid down the principles of self-determination and autonomy. Articles 14, 15, 16, 19 and 21 were given a wider interpretation upholding the values of equality and freedom of choice enshrined in the Constitution. This decision created a social impact rather than mere legal recognition. However, with the continuing gaps in implementation and social stigma, there remains a need for an effective enforcement and awareness. Nevertheless, the judgement remains a foundational step towards achieving inclusivity, equality and recognition for the transgender community in India. 

Reference(S):

1. National Legal Services Authority v Union of India (2014) 5 SCC 438
2. Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (University of Chicago Press 2005)
3. Queen-Empress v Khairati (1884) ILR 6 All 204 (All HC)
4. Constitution of India
5. Corbett v Corbett [1970] 2 All ER 33
6. Anuj Garg v Hotel Association of India (2008) 3 SCC 1
7. State of Karnataka v Ranganatha Reddy AIR 1978 SC 215
8. Navtej Singh Johar v Union of India (2018) 10 SCC 1
9. K S Puttaswamy v Union of India (2017) 10 SCC 1

[1] Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (University of Chicago Press 2005)

[2] Queen-Empress v Khairati [1884] ILR 6 All 204 (All HC)

[3] National Legal Services Authority v Union of India [2014] 5 SCC 438 [11]

[4] Corbett v Corbett [1970] 2 All ER 33.

[5] National Legal Services Authority v Union of India (2014) 5 SCC 438 [45]

[6] Anuj Garg v Hotel Association of India (2008) 3 SCC 1 [34] – [35]

[7] State of Karnataka v Ranganatha Reddy [1978] AIR SC 215

[8] Anuj Garg v Hotel Association of India (2008) 3 SCC 1 [34] – [35]

[9] Navtej Singh Johar v Union of India (2018) 10 SCC 1.

[10] K S Puttaswamy v Union of India (2017) 10 SCC 1

[11] National Legal Services Authority v Union of India (2014) 5 SCC 438.