Dated: 15th April, 2014
Bench of Judges: Justice K.S. Radhakrishnan, Justice A.K. Sikri
Petitioners: National Legal services Authority (primary petitioner), Poojaya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan Tripathi
Respondents: Union of India and Others
A writ petition (Writ petition no. 400 of 2012) was filed by the National Legal Services Authority (NALSA), an Indian Statutory organ, which was established under the Legal Services Authority Act of 1987.
Another writ petition (Writ petition No. 604 of 2013) was filed by Poojya Mata Nasib Kaur Ji Welfare Society, a registered organization serving the Kinnar community.
Laxmi Narayan Tripathi, who depicted himself as a Hijra, also came to trial and argued that since he is a Hijra, his rights are being denied under Article 14 and 21 of the Indian Constitution, and that the Court must intervene to guarantee that he and other members of the transgender community are not biased.
Transgender people in India face pervasive bigotry, prejudice, brutality, and other aspects of stigma. Stigmas like these hinder opportunities and access to services in a multitude of vital spheres such as employment, welfare, education, and so on, impacting the fundamental rights and mental well-being of transgender people. Due to prejudice based on gender identity or expression, transgender people experience the brunt of social and economic exclusion.
There is no acknowledgment of their identities, nor is there any right or entitlement to receive a certificate of identification as a “third-gender” as verification of recognition by the appropriate state authorities. Adoption, marriage, inheritance, succession, taxes, and health are all based on a person’s gender, which is decided at birth. However, the identity of transgender individuals was not determined, this culminated in the filing of the petition in the Honorable Supreme Court of India seeking gender reorganization of transgender people. The transgender community urged that since they are unable to portray themselves in terms of binary gender, they are deprived of equitable legal and social security.
Shri Raju Ramachandran, a senior counsel appearing for the plaintiff – the National Legal Services Authority – emphasized the unpleasant emotions that members of the transgender community have had and contended that any member of that community has a constitutional entitlement to choose their sex orientation and to uphold and evaluate their identity.
- The Court had to determine if individuals who don’t fit into the male/female gender binary can be legitimately categorized as “third gender”,
- Whether the non-recognition of their gender identity is an infringement of their fundamental rights.
- Whether a person born as a male but with a mostly female inclination (or vice versa) has a right to be treated as a female, the same concern occurs when a person undergoes sex surgery.
Article 14: Article 14 of the Indian Constitution guarantees equality before the law and equal protection under the law. “The State shall not refuse to any citizen within the territories of India equality before the law or equal protection of the laws,” it states. The Indian Constitution codifies the constitutional rights of its people, which are described in Part III of the Constitution. The right to equality is one such right, which is guaranteed under Articles 14 to 18. Article 14 explicitly guarantees equal protection under the law, implying a constructive statutory duty to guarantee equal protection under the law by implementing requisite social and economic modifications, ensuring that all, including transgender individuals, receive equal protection under the law and no one is denied of it. Since Article 14 does not narrow the term “person” to binary genders, transgender people who are otherwise male nor female are also entitled to legal protection under the law in all fields of government operations, including work, welfare, and education, as well as equal civil and citizenship rights as any other citizen of the country.
Article 15 and 16: Discrimination against Indians on the grounds of religion, race, caste, sex, or place of birth is forbidden under Article 15 of the Indian Constitution while Article 16 provides equal opportunity to all people in matters relating to employment of the backward classes in the public sector. Both aspects of gender inequalities and sexism are forbidden under these Articles. It is critical to note that the term “sex” defined under Articles 15 and 16 also extends to individuals none of whom are male or woman biologically. India is a signatory to some worldwide conventions and declarations, which, whilst mixed with the Indian Constitution, obligate the authorities to acknowledge transgender people’s fundamental rights and offer them with same opportunities. Articles 15(2) to (4) and 16(4), when interpreted in conjunction with the Directive Principles of State Policy and various foreign instruments of which India is a member, advocate for social inclusion, which the transgender individuals can only acquire if services and opportunities are expanded to them so that they can live in fairness and on an equal footing with other genders.
Article 21: Article 21 of the Indian Constitution states that no one shall be deprived of his life or personal liberty except by the procedures specified by law. The human right to equality includes the recognition of one’s gender identity. Gender, as previously described, is an intrinsic component of one’s identification. As a result, statutory affirmation of gender identity is a part of our Constitution’s right to equality and liberty.
The historical context of the third gender identity in India was traced including their prominence in Hindu mythology, Vedic and Puranic works of literature, and their conspicuous position in Islamic royal courts, among other things. The repealed Criminal Tribes Act of 1871 was also mentioned, which described the brutal treatment they suffered during the British colonial era.
Section 377 of the Indian Penal Code: According to Section 377, whoever knowingly engages in carnal intercourse against the order of nature with any man, woman, or animal shall be punishable by life imprisonment, or by confinement of any description for a period not exceeding ten years, and shall also be convicted to a penalty. Before the enactment of the Criminal Tribles Act, 1871, which prohibited all penile-non-vaginal sexual practices between males, including anal and oral sex, Section 377 secured a place in the Indian Law, 1860, at a time when transgender people were still usually identified with the prescribed sexual acts. It was imperative to resurrect this section to secure transgender people’s freedom, equitable protection of their rights, and the right to live their lives with dignity, as guaranteed by the aforementioned Articles.
Reference cases: The following are some international rulings the Supreme Court took into consideration:
- Corbett v Corbett
- National Human Rights Commissions v State of Arunachal Pradesh
- Christine Goodwin v United Kingdom
- Attorney General v Otahuhu Family Court
- Dattatraya Govind Mahajan v State of Maharashtra
- Universal Declaration of Human Rights 1948: The fundamental equality of all members of the human family is the foundation of democracy, liberty, and harmony in the world,’ states the Universal Declaration. It asserts that human rights are fundamental, meaning that they apply to all, regardless of who they are or where they live.
- International Covenant on Civil and Political Rights 1966: The International Covenant on Civil and Political Rights (ICCPR) of the United Nations aims to ensure civil and political rights. The General Assembly of the United Nations endorsed it on December 19, 1966, and it came into effect on March 23, 1976.
- International Covenant on Economic, Social, and Cultural Rights 1966: Human rights in the economic, social, and cultural spheres are protected by the International Covenant on Economic, Social, and Cultural Rights. On December 16, 1966, the United Nations General Assembly approved it. On June 18, 1992, Switzerland ratified the Convention.
- Yogyakarta Principles: The Yogyakarta Principles are a series of guidelines for how international human rights legislation can be applicable to subjects of gender and sexuality. The Guidelines provide universal international legal norms that all countries shall adhere to. They see a world in which all individuals born independent and equal in dignity and rights are able to exercise their valuable birthright.
- The United Nations Convention against Torture (CAT): The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) mandates signatory nations to support actions to eradicate torture within their borders and to make any acts of torture illegal.
The Court constituted of two judges observed that the transgender community broadly defined by the Court as Hijras, Eunuchs, Kothis, Aravanis, and others has experienced persecution and detriment in India since the eighteenth century. It recognized transgender people’s inequality in fields such as health care, housing, and schooling, which also contributes to social isolation. Gender identity is an intrinsic part of one’s personality and one of the most fundamental facets of self-determination, integrity, and rights, according to the Court. As a result, no person should be required to perform surgical treatments such as sex reassignment surgery, sterilization, or hormone treatment in order for their gender identification to be legally recognized. Consequently, the court ruled that the federal and state governments must take a number of measures to ensure that the basic rights to life, equality before the law, and due process are upheld. The State shall not deny to ‘any person’ equality before the law or equal protection of the laws within the jurisdiction of India,” according to Article 14. “Transgender individuals who are neither male nor female fall within the term ‘person’ and, therefore, entitled to legal security of laws in all fields of State operation,” the Court concluded. It also maintained that the prohibitions on prejudice against any resident, even on the basis of sex, in Articles 15 and 16 extend equally to transsexual people. The term “sex” in the papers “is not only limited to biological sex of male or female, but meant to cover people who believe themselves to be neither male nor female,” as per the Court. The Supreme Court ruled that the right to freedom of speech guaranteed by Article 19(1) (a) of the Constitution contains one’s right to express his self-identified gender. The freedom to decide one’s sexual identity is fundamental to the right to live a dignified life, according to the Court, and therefore comes under the context of Article 21, i.e. right to life.
Furthermore, the court clarified that Hijra are not men by way of genetics, and they are not women mentally, despite having no female reproductive organ and no menstruation. Hijra are neither men nor women, and appear to be an institutional “third gender” since they are unable to reproduce as either men or women. Individuals who aspire to have Sex Re Assignment Surgery (SRS) or who have had SRS to suit their biological sex with their gender orientation in order to become male or female are often classified as transgender persons and are regarded as transsexuals.
As a result, the Supreme Court ruled that:
- The right of transgender people to declare their self-identified gender is also protected, and the federal and state governments are required to recognize their sexual identity as male, female, or third gender.
- Besides the binary gender, transgender people should be classified as “Third gender” in order to protect their rights under Part III of the Indian Constitution and laws enacted by the Parliament and State Legislatures.
- The court ordered the federal government and the state government to recognize the transgender persons as economically and educationally disadvantaged individuals, and to grant them all forms of reservation of enrollment to educational institutions and for public appointments.
- Necessary actions to improve a variety of social care systems should be taken by the Centre and State.
- The Centre and state governments should take appropriate steps to provide TGs with medical care in hospitals, as well as separate public toilets and other amenities.
Conclusion: The case of Nalsa v Union of India was certainly a significant landmark decision that gave a glimmer of hope to the futures of transgender people, as it was a massive legal step against eliminating the oppression endured by a group of people who had been discriminated against for years. For the first time in India, the ‘third gender’ identity was recognized, and the LGBTQ community’s constitutional rights were defended. This landmark decision is one such example of how history owes transgender people an apology. It cannot be anticipated that this verdict would transform the way everybody within society views the transgender people, but it is a step toward undoing the wrongs that have been committed against transgender people for decades. There is also a long lot of room for improvement in terms of granting transgender people equal treatment in our socio-religious and socio-political activities; for the time being, despite this judgement, they are either ordinary citizens or misfits who live on the periphery.