Author Details:

By- Suryansh Tripathi

CASE BRIEF-

CASE TITLE: National Legal Ser.Auth vs Union Of India & Ors

CITATIONS: 5 SCR 119

DATE OF JUDGEMENT: 15 April,2014

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

PETITIONER: National Legal Service Authority

RESPONDENT: Union of India and Ors.

INTRODUCTION:

Indian society has historically demonstrated a lack of gender awareness, which is evident not only in societal attitudes but also in the legislation in force. There is a pressing need for targeted laws and provisions to protect the rights of individuals who do not identify strictly as male or female. The experiences of those often labeled as transgender are marked by ongoing suffering, hardship, and distress. Their failure to conform to socially accepted norms has resulted in both the infringement of their rights and the persistence of physical and psychological violence against them. Often marginalized, they find themselves excluded from various aspects of social, religious, and political life.

In India, the rights of these individuals primarily stem from various Articles of Part III of the Constitution, due to the absence of dedicated legislation to ensure their protection. In contrast, at the international level, their rights are recognized and detailed in several legal frameworks, including 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 the Protection of Human Rights, and the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.

BACKGROUND OF THE CASE:

Two writ petitions were submitted to uphold and safeguard the rights of individuals within the transgender community. The first was initiated by the National Legal Services Authority, established under the Legal Services Authority Act of 1997, and is identified as writ petition no. 400 of 2012. This was soon followed by another petition, numbered 604 of 2013, filed by Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered organization advocating for the rights of the Kinnar (transgender) community. Additionally, Laxmi Narayan Tripathi, who identifies as Hijra, also sought the court’s intervention and was included in the ongoing case. He contended that his rights, as protected under Articles 14 and 21, were being violated due to his identity as a hijra, emphasizing the need for legal intervention to prevent discrimination against him and others in his community.

ISSUES INVOLVED IN THE CASE:

•The central themes of the ongoing petitions focus on issues related to gender identity and the essential protections needed to uphold the rights and interests of those who identify as part of the third gender.

•Another critical question addressed is whether individuals assigned male at birth but who identify as female have the right to be recognized as female, a similar inquiry applies to those who undergo surgical procedures to change their sex.

• Additionally, the petitioners have raised the issue of whether individuals who do not identify strictly as male or female are entitled to be classified under a “third gender.”

PETITIONER’S ARGUMENT:

The petitioners, represented by their legal counsel, passionately contended that the notion of binary genders undermines fundamental rights, including the Right to Equality (Article 14), the Right to Life and Personal Liberty (Article 21), and the Freedom of Expression (Article 19). They emphasized that the prevalence of binary gender norms further victimizes and marginalizes those who do not identify strictly as male or female. Additionally, they argued that the failure to recognize a third gender infringes upon the basic human dignity of these individuals, effectively ostracising them and relegating them to the fringes of society through no fault of their own.

RESPONDENT’S ARGUMENT:

In contrast, the respondents maintained that the state had established an “Expert Committee on Issues Relating to Transgender” tasked with evaluating a range of perspectives to enhance the quality of life and dignity for transgender individuals. They further asserted that the Committee would also take the into account to develop on the matter. Additionally, various states and union territories claimed to have implemented numerous measures aimed at improving the lives of the transgender community.

JUDGEMENT OF THE CASE:

The ruling was issued by a bench of two judges, Justice K.S. Radhakrishnan and Justice A.K. Sikri, on April 15, 2014, with Justice Sikri offering a separate opinion and additional remarks, the court drew upon a variety of decisions from international jurisdictions, including those from New Zealand, Australia, Malaysia, Pakistan, and England. The judges differentiated between biological sex and psychological sex, asserting that gender identity should not be determined solely by biological factors, but rather should prioritize psychological identity. The court emphasized that all provisions of international conventions, including the Yogyakarta Principles, must be adhered to as long as they align with the fundamental rights enshrined in Part III of the Indian Constitution. It affirmed that transgender individuals are included under the protections of the Constitution and are entitled to its guaranteed rights. Article 14 assures equality for “any person,” thereby encompassing men, women, and transgender individuals, who are also entitled to equal legal protection. Transgender individuals are entitled to the same rights as others in areas such as employment, healthcare, education, and civil rights. The court found that discrimination based on sexual orientationand gender identity constitutes a violation of the principle of equality before the law as stated in Article 14. Furthermore, the court highlighted that transgender individuals possess the right to freedom of expression under Article 19, allowing them to express themselves through speech, attire, and behavior as they choose. They are also entitled to live with dignity, as protected by Article 21. The ruling mandated that both the State and Central governments must formally recognize transgender individuals in a legal context, facilitating their access to education and healthcare free from discrimination.

Additionally, the court defined hijras and eunuchs as part of the “third gender.” It issued several directives to both the Central and State governments, including the establishment of dedicated HIV Zero- Surveillance Centres, provision of separate public restrooms, and ensuring appropriate medical care for transgender individuals in hospitals.