Important Supreme Court Judgments: National Legal Services Authority and Union of India (2014)

Introduction

India has always had a dearth of gender consciousness, which is reflected not only in the general attitude of the population but also in the law of the state. Individuals who do not identify as either male or female require specific legislation and safeguards to protect their rights. The story of persons who are labelled as transgender is one of constant suffering, sorrow, and despair. They have been subjected to not only denial of rights but also constant physical and emotional violence simply because they do not conform to society's "norms." They are regarded as outsiders and are prohibited from participating in a variety of societal activities, including social, religious, and political ones. They are not only seen as untouchables, but also as a scourge on the civilization in which they live.

• Due to a lack of particular law to protect these persons' rights in India, their rights are mostly derived from several Articles of Part III of the Constitution.

• Their rights, however, are well established at the international level, with 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 and Fundamental Freedoms (European Convention of Human Rights).

Factual Background of the Case

• Two writs of habeas corpus have been filed to preserve and uphold the rights of transgender people.

• A writ petition was filed by the National Legal Services Authority, which was established under the Legal Services Authority Act of 1997. (writ petition no. 400 of 2012).

  It was followed by a writ petition (No. 604 of 2013) filed by Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered organisation dedicated to the preservation of Kinnar (Transgender) rights.

• Laxmi Narayan Tripathi, a self-described Hijra, also approached the court and was charged in the current case. He claimed that as a hijra, his rights under Articles 14 and 21 were being denied, and that the Court was required to act so that he and other members of his community would no longer be discriminated against.

Issues

• The difficulties surrounding gender identification and the safeguards that were required to protect the rights and interests of people who identify as third gender were at the heart of the current petitions.

• Another dilemma was whether a person born male but with a female orientation has the right to be labelled as a female; a similar question arises when a person has sex surgery.

   

• Another question addressed by the petitioners was whether a person who does not identify as either a man or a woman has the right to be classified as a "third gender."

NALSA Case Decision

• On April 15, 2014, a two-judge bench comprised of Justice K.S. Radhakrishnan and Justice A.K. Sikri handed down their decision, albeit Justice Sikri expressed a distinct perspective with some additional remarks.

• The court relied on a number of international court decisions, including those from New Zealand, Australia, Malaysia, Pakistan, and England, in reaching its momentous decision.

   

• A distinction was recognized by the Court between biological and psychological sex.

   

• Gender identification based on biological sex was rejected by the Court, while identification based on psychological sex was given first priority.

• All provisions of international treaties, including the Yogyakarta Principles, must be recognized and followed if they are consistent with the fundamental rights guaranteed by Part III of the Constitution, according to the Court.

   

• The Court ruled that transgender people are covered by the Indian Constitution and hence have full access to the protections it provides.

   

• Article 14 provides equality to "every individual," which includes men, women, and transgender people, as well as equal legal protection.

   

• In terms of employment, health care, education, and civil rights, they are treated equally.

   

• Discrimination based on sexual orientation and gender identity is a violation of Article 14 since it results in uneven treatment before the law and unequal protection under the law.

   

• The Court also stated that transgender people have the right to freedom of expression under Article 19, which allows them to speak, dress, act, and conduct in whatever way they like.

• Article 21 also gives them the right to a dignified life.

   

• The Supreme Court ruled that state and federal governments must give transgender people full legal status so that they can get education and healthcare without facing discrimination.

   

• The Court also decided to recognise Hijras and Eunuchs as the "third gender."

   

• It issued a number of pronouncements and directives to the federal and state governments, including the establishment of separate HIV Zero-Surveillance Centers, the provision of separate public bathrooms, and adequate medical care for transgender people in hospitals.

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