In this article, Salma Jennath does a case study on National Legal Services Authority v. Union of India. [(2014) 5 SCC 438]

Coram: K.S. Radhakrishnan, A.K. Sikri, JJ.

Procedural Background

The judgment was delivered in pursuance of a Public Interest Litigation filed by the National Legal Services Authority (NALSA) seeking to address the grievance of the Transgender Community, for short TG community, and praying for a legal declaration of their gender identity other than the binary gender, i.e., male or female. A similar writ petition was also filed by Poojaya Mata Nasib Kaur Ji Women Welfare Society seeking similar reliefs for the Kinnar community.

The community coming within the umbrella term ‘transgender’ suffers tremendous trauma and abuse from the society, as they do not fall under neither of the “socially-accepted genders”. The non-recognition and non-acceptance from the society, which shuns the TG community, causes this community to be side-lined and makes them untouchables.

The non-recognition of their sexual and gender identity is a violation of their various Fundamental and Human Rights, which are protected by the Constitution of India and other international Human Rights documents.

Facts of the Case

Looking back into the history of the country, it can be seen that the Transgender Community was accorded a special and important status. The Hindu mythology, Vedic and Puranic literatures recognised them as the third gender and bestowed them great respect. They played an important role in the royal courts and were considered to have the power to give blessings. This status of the TG community changed after the advent of the British rule in India and the Colonialists treated them in an inhuman manner.

As a direct consequence of the Criminal Tribes Act, 1871, there was an attrition of the status of the TG community as the legislation deemed the entire community as innately criminal. Though there has been marginal improvement in the condition of the TGs, especially after the repeal of the said ‘notorious’ Act, their condition is not far from dismal. There is a need for affirmative action for the upliftment of the community and for the improvement of their social status.

The atrocities faced by TG community, from the citizens as well as the state authorities, in turn, is a violation of their many fundamental rights including those under Articles 14 and 21 of the Constitution.

Reasoning

The main issue in the writ petition was the recognition of gender identities as perceived by the Transgender Community. The judges took into consideration the international legal scenario and the recognition of the rights of the transgender community by international human rights documents as well as human rights courts.

The right to equality and equal treatment of persons is a right recognised by Article 14 of the Constitution. It specifically provides that no ‘person’ shall be discriminated on the basis of sex/gender. Article 14 does not restrict the word ‘person’ and its application only to male or female. The TGs fall within the word ‘person’ and are entitled to equal protection of all laws.

Article 15 provides for affirmative action for the advancement of minority and backward communities. The TGs have been for long denied their rights under Article 15(2). They are shunned from many public places including educational institutions, health care institutes, etc. These rights are not subject to any disability, liability, restriction or condition. Moreover, under Article 15(4) they must be accorded a status of socially and educationally backward class. Additionally, they are also entitled to reservation in the matter of appointment in public and state offices.

One of the most important fundamental rights that is denied to the TG community is their right under Article 19 (1)(a). Article 19 (1)(a) guarantees to citizens the freedom of speech and expression. This right includes the right to expression of one’s self-identified gender. This expression may be done through dress, words, action or behaviour or any other manner.

Article 21 is one of the most extensive fundamental rights provided by the Constitution. More and more rights have been read into the said right to life and personal liberty. Article 21 has within its ambit all those aspects of life, which gives meaning to a person’s life. Life does not mean mere animal existence. It is the right to live with human dignity. It also includes one’s personal autonomy. Expression of oneself according to his self-recognised gender is an aspect of personal autonomy protected under Article 21.

Moreover, recognition of one’s gender identity lies at the heart of the right to dignity. It is a positive right of persons to make decisions about their life, to express themselves in the way they choose and also to do what activities that they choose to do. The judges laid down the Psychological Test as against the Biological Test to identify the gender of a person.

The judges also took into consideration the various human rights provided under the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, the Yogyakarta Principles, etc. in determining the extent of transgender rights. Moreover, the plethora of judgments and legislations in foreign countries recognising the right of the TG community and the acceptance of a special social status in the world convinced the judges that it was high time that India also comes up with progressive measure for the protection of this vulnerable community.

Judgments and Dispositions

The judgment relied upon many foreign decisions laid down by many courts including the English courts, courts of New Zealand, Australia, Pakistan, Malaysia, etc. The judgment provides a timeline of cases and the evolution of the recognition of persons according to the psyche. Initially, the test for determination of a person’s gender, as laid down by Corbett v. Corbett[1]was his/her biological characteristics at birth.

The courts of Australia and New Zealand was in opposition to the Corbett principle and had more liberal principles for gender determination. Later, the test was to see whether the person has undergone surgical and medical procedures that have given the person the physical appearance and features of a person of a specified sex. The New Zealand court in Secretary, Department of Social Security v. “SRA”[2] as of the opinion that gender determination is a purely psychological question, one of self-perception and partly a social question, how society perceives the individual.

The court recognised that gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. They opined that guarantee to equality and non-discrimination on the ground of gender identity is increasing and gaining acceptance worldwide and that it can also be applied in India.

Transgender people are oppressed and are faced with discrimination in the field of health care, employment, education, etc. The court referred to Part 21 of the United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment, wherein it is stated that States are obliged to protect all persons regardless of sexual orientation or transgender identity. The court acknowledged the absence of legislation in the country and the necessity to follow the International Conventions.

The Court held that TGs are entitled to affirmative action as guaranteed under Article 15(4) and also to reservation in the matter of appointment. State is bound to take affirmative action to give them due representation in public services.

The court further emphasised on the need for legal recognition of third or transgender identity and concluded that they belong to a distinct socio-religious and cultural group and must be considered as a “third gender”, apart from male and female.

Justice K.S. Radhakrishnan, speaking on behalf of the Court, concluded the judgement by holding that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution. In light of the aforementioned, it made various declarations and directions to the Centre and State Governments:

• Hijras, Eunuchs are to be treated as “third gender”.
• TGs have the right to decide their self-identified gender.
• Take steps to treat TG as socially and educationally backward classes of citizens in cases of admission in educational institutions and for public appointments.
• Governments to operate separate HIV Zero-Surveillance Centres.
• Governments to seriously address the problems faced by TGs.
• Provision for separate public toilets and appropriate medical care in hospitals.
• Governments to frame various social welfare schemes for the betterment of TG.
• Governments to create public awareness so that TGs will not be treated as untouchables.
• Take measures to regain the respect and place of TG in the society which they once enjoyed.

Critical Analysis

The judgment delivered by Radhakrishnan, J, made a detailed analysis of the transgender status, not only in the international sphere but also in the Indian legal and cultural history. On the one hand, the judgment addresses various issues and problems faced by the community but on the other, certain obvious and important issues were superficially addressed.

The concurring opinion delivered by Sikri, J is almost as elaborate as the main judgment and defines the rights of the TG community in a jurisprudential light. The learned judge made a detailed analysis of Kantian criterion of justice, Aristotle’s equalitarian theory and Locke’s conception of individual liberties. Giving due respect to these theories, the learned judge dismissed them as irrelevant in the present scenario. He has rightly done so, as all the theories are biased opinions of their thinkers, belonging to a different society and at a different time.

While agreeing to the reasoning put forth by his learned brother, Justice Sikri took into consideration the Directive Principles of State Policy to recognize the duty of the State in taking affirmative action for the upliftment of the community.

The learned judge recognised the intricate web of rights associated with the recognition of persons according to self-recognised gender. The TG community, along with their right to self-recognition is deprived of educational facilities, medical facilities, the right to vote, the right to own property, the right to marry, the right to a formal identity, etc. The individuals of the TG community are deprived of these basic human rights that are recognised everywhere in the world.

The judgment does not provide a long term and extensive solution the problems faced by trans genders. It merely gives a cursory glance at these problems. The judges provide no descriptive or comprehensive guidelines.

The TG community being a sensitive and vulnerable community should be given special treatment that are meted out to the women in India. Special provisions of counselling and interrogation should also be provided to the ‘third gender’ and not merely individuals who recognise themselves as females. While the issue of separate public toilets was addressed by the judgment, the need for separate detention facilities were not taken into consideration. One of the biggest problems faced by the TG community is atrocity and cruelty meted against them by the police force of the country; adequate measures to address this major problem must be taken up by the wings of government.

Moreover, the issue of sexual intercourse though given a perfunctory glance was not looked deep into. Though it was not a direct issue in the writ petition, this is an issue that is inextricably linked with the rights of the TG community. The Yogyakarta Principles, which were relied upon by the judges, was not accepted in its true letter and spirit. Paragraph 22 of the judgment is a detailed reproduction of these principles. These principles clearly call for an amendment of criminal law of the country so that their sexual and reproductive rights are not affected. However, since this issue was already decided by the Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation and Ors.[3], upholding S. 377 of the Indian Penal Code, an opinion should have been made by the learned judges highlighting the importance of sexual relations for persons in enjoying a dignified and meaningful life.

An appreciable factor of the judgment was its recognition of the TG community as a socially and educationally backward community. Such classification, which acts as a positive discrimination, is a much-needed action for the upliftment of the community.

Another significant aspect is the special medical attention that is sought to be given to this community. Also, the measures to provide them a sense of belonging in the society by educating the society as well as the community is a laudable solution put forth by the judgment.

This judgment was a long awaited one not only by the transgender community but also by human rights workers. The TG community became the new ‘untouchables’ and the cruelties sustained by them one too many. This was a first step to the amelioration of a community, marginalised and abused, and for too long a time.

[1] (1970) 2 All ER 33

[2] (1993) 43 FCR 299

[3] (2014) 1 SCC 1