NALSA v. Union of India

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

Court Name: The Supreme Court of India

Date of Judgement: 15 April 2014

Citation: AIR 2014 SC 1863

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

Section/Act Name: Article 21 in The Constitution Of India 1949

Article 14 in The Constitution Of India 1949

Article 19(1)(a) in The Constitution Of India 1949

The Legal Services Authorities Act, 1987

Summary of Facts: In 2012, the National Legal Services Authority (NALSA) constituted under the Legal Services Authorities Act, 1987, to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes filed a social interest litigation asking for several directions from the Supreme Court, including granting of equal rights and protection to transgender persons; inclusion of a third category in recording one’s sex/gender in identity documents like the election card, passport, driving license and ration card; and for admission in educational institutions, hospitals, amongst others. In 2013, this matter was tagged together with a petition filed in the Supreme Court by the Poojaya Mata Nasib Kaur Ji Women’s Welfare Society, an organization working for kinnars, a transgender community. The Lawyers Collective had filed an intervention, on behalf of Ms. Laxmi Narayan Tripathy, a Hijra/transgender activist, seeking recognition of self-identified gender of persons, either as male/female/third gender, based on their choice.

Issues Raised: Whether non-recognition of diverse gender identities violates Articles 14 and 21 of the Constitution of India?

Contentions of the petitioner:

1.      It was contended by the petitioner that every person of the transgender community has a legal right to decide their sexual orientation and to espouse and determine their identity. It was also submitted that since the Transgender Persons (TGs) are neither treated as male or female nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprive them of the Constitutional guarantee of equality before the law and equal protection of laws.

2.      Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licenses, etc. and, in effect, treated as an outcast and untouchable. Learned senior counsel also submitted that the State cannot discriminate against them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India.

3.      The transgender persons have to be declared as socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders. Learned counsel also submitted that the right to choose one’s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India. Learned counsel, therefore, submitted that, subject to such rules/regulations/protocols, transgender persons may be afforded the right of choice to determine whether to opt for male, female, or transgender classification.

Contentions of the Respondent:

Shri Rakesh K. Khanna, learned Additional Solicitor General, appearing for the Union of India, submitted that the problems highlighted by the transgender community is a sensitive human issue, which calls for serious attention. He pointed out that, under the aegis of the Ministry of Social Justice and Empowerment (for short “MOSJE”), a Committee, called “Expert Committee on Issues relating to Transgender”, has been constituted to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to MOSJE. It was also submitted that due representation would also be given to the applicants, appeared before this Court in the Committee, so that their views also could be heard.

Judgment: The court has observed that Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which includes Hijras/Eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female.

In this 115 page landmark judgment, the Supreme Court traced the history of the Transgender Community in context of India. It observed:

“12. TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts. The Concept of tritiya prakrti or napunsaka has also been an integral part of vedic and puranic literatures.”

The onset of the colonial rule marked instances of great discrimination and trauma for the transgender community. During the British rule, legislation was enacted to supervise the deeds of Hijras/TG community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offenses’. The Act provided for the registration, surveillance, and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both.

Further, the court exhaustively relied on various judicial pronouncements and legislations in the international arena to highlight the fact that the recognition of “sex identity gender” of persons, and “guarantee to equality and non-discrimination” on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, be applied in India as well.

UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES – ON GENDER IDENTITY AND SEXUAL ORIENTATION

“21. United Nations has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons. Article 6 of the Universal Declaration of 17 Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation and that everyone has the right to protection of the law against such interference or attacks.”

Another important reference pointed out was a detailed study conducted by the United Nations Development Program (UNDP – India) It submitted a report in December 2010 on Hijras/transgenders in India: “HIV Human Rights and Social Exclusion”. The Report stated that the HIV Human Immunodeficiency Virus and Sexually Transmitted Infections (STI) is now increasingly seen in Hijras/transgenders population.

ARTICLE 19(1)(a) of the Indian Constitution and Transgenders

The court also recognized the right of “self- determination” to the transgender persons. The freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing, etc. Therefore:

“66. Gender identity, therefore, lies at the core of one’s personal identity, gender expression, and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India.”

The operative part of the judgment

129. We, therefore, declare: (1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. (2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female, or as third gender. (3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments. (4) Centre and State Governments are directed to operate separate HIV Serosurvellance Centres since Hijras/ Transgenders face several sexual health issues. (5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal. (6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities. (7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. (8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables. (9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life

Effect of the Judgement:

Constitutionality of Section 377 IPC

On 6th September 2018, a five-judge Bench unanimously struck down Section 377 of the Indian Penal Code, to the extent that it criminalized same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court upheld provisions in Section 377 that criminalize non-consensual acts or sexual acts performed on animals. (Navtej Singh Johar vs. UOI; Akkai Padmashali vs. UOI)

Transgender Persons (Protection of Rights) Act, 2019

Given the 2014 judgment, the parliament introduced a series of bills addressing the rights of transgender people. The most recent one was introduced in July 2019, following which; it came to be known as the Transgender Persons (Protection of Rights) Act, 2019. The Act has received a negative response from the transgender community as it nullifies the NALSA judgment in their view. The new law is not only inadequate, but they have also claimed, it will also reverse the gains made to secure the rights of transgender people.

In recent news, The Karnataka High court has ordered an issue of notice to the Union government as Ondede, a public charitable trust working extensively with the transgender community in the State and others have filed a PIL petition questioning the constitutional validity of a series of provisions of the Transgender Persons (Protection of Rights) Act, 2019.

The petitioners have termed Sections 4,5,6,7, 12(3), 18(a) and 18(d) of the Act as violative of the fundamental rights of the equity before law, the prohibition of discrimination on grounds of religion, race, sex or place of birth, the equality of opportunity in matters of public employment, and the protection of life and personal liberty guaranteed respectively under the Articles, 14,15, 16 and 21 of the Constitution.

Personal Comment: The judgment is no doubt a progressive step in the history of Indian legislation and part of our collective constitutional heritage. Nevertheless, it still is ambiguous and contradicting certain definitions and the first one being “who is a transgender”. The court has made vague interpretations of the term and has not attempted to broaden the scope of the term. For instance,  Hijra is a cultural community that falls under the umbrella term “transgender” but not all transgender are hijras.

It is not clear in the judgment whether hijras have the option to choose women or third gender status based on what they prefer? To avail of benefits like OBC reservations in jobs and education, would it be compulsory for trans women to get third gender identities? The process is not clear and neither is whether they have a choice. Gender identity is a broad spectrum and failure to recognize the diverse groups and their choices will not give proper effect to the legislation.

The distinction between sexual orientation and gender identity is brushed upon in the judgment but Indian society lacks the mindset to discuss sex at home. In the formative years of a child, all kinds of hormonal changes and confusion occur and a free and safe environment is a must for the child to breathe so training in gender sensitization should be encouraged to parents. There is also the pressing issue of lack of representation of the transgender community in the parliament. It is also very important that the rules/ methods and procedures of the implementation of the gender laws be simple and straightforward. This is because the bureaucracy, in particular, has never had suitable training on gender issues or sex education.