National Legal Services Authority V. Union of India & ORS.

National Legal Services Authority v. Union of India & Ors.

Full Case Name:- National Legal Services Authority v. Union of India & Ors.

Decided on:- 15 April, 2014

Citation:-  AIR 2014 SC 1863

Judges Involved:- K.S. Radhakrishnan and A.K. Sikri

Issues Raised:-

  1. Whether persons who fall outside the male/female gender binary can be legally recognized as “third gender” persons.
  2. Whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution of India.

Introduction:-

In the history of India, Transgenders community had a important status. The Hindu mythology, Vedic and Puranic Literature recognized them as the Third Gender and give them great respect. They played a very important role in the royal courts and also have a great power to give blessings. There has been a long standing tradition of Kinnars coming to Weddings or a Child’s birth to give blessings. In fact, they are given a large amount of money and a lot of ceremonial gifts because their stature is considered similar to God itself and thus, their blessings are believed to be quite pure and effective.

But in modern society, the people are doing untouchability and gender unequality with the transgender persons. The right to equality and equal treatment of persons is a right guaranteed under Article 14 of the Constitution of India. And Article 15 provides that No person shall be discriminated on the basis of sex/gender. Transgender’s do fall within equal protection of person. The same way Article 21 of the Constitution also protects the rights of the Transgenders. The people are directly violated the Human Rights of the third gender persons. For prohibiting this unequality, an NGO and a transgender person filed a writ petition before the Supreme Court of India.

Also Read: Maneka Gandhi V. Union of India – Analysis

Facts:-

National Legal Services Authority of India (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free legal aid services to the weaker sections of the society.[1] A statutory body (NALSA) filed a writ petition before the Supreme Court of India. A non- governmental organization was joined with the petition which is representing the Kinnar transgender community, and an individual who identified himself as a Hijra.

The term Hijra means intersex people or transgender people. In India people also refer them as Kinnar. The Hijras are officially recognized as the third gender by the government of Pakistan and Bangladesh. Hijras have a recorded history in the Indian subcontinent from antiquity onwards as suggested by the Kama Sutra period.

The Indian lawyer and author Rajesh Talwar has written a book highlighting the human rights abuses suffered by the community titled ‘The third sex and human rights.’ Few employment opportunities are available for the hijras.

The petition sought a legal declaration of the gender identity than one assigned at the time of birth and that non recognition of their gender identity violates articles 14 and 21 of the Indian Constitution. The community urged that their inability to express themselves a binary gender denies them the equal protection of laws and social welfare schemes. They also prayed for legal protection as a backward community and the right to able to express their self- identified gender in government forms.

Judgement;-

The historical background of the transgender community was discussed and the Supreme Court recognized that gender identity and sexual orientation include transgenders and that each person self defined sexual orientation and gender identity is integral to their personality. The right to equality is the basic right of all the human beings. [2]

The Supreme Court directed the center and state government to take step to treat them as socially and economically backward classes of citizens and extend all kinds of reservation for the admission in educational institutions and for public appointments. Operate separate HIV Siro Surveillance Centers since transgenders face several sexual health issues. Address the problems being faced by transgenders such as fear, shame, depression, suicidal tendencies, social pressure, etc. To take steps for making various social welfare schemes for their betterment. To take steps to create public awareness so that TGs will feel that they are also the part of the social life and not to be treated as untouchables.

Also Read: M.C. Mehta v. Union of India and Ors.

Critical Analysis:-

The Supreme Court was passed a Landmark Judgement on 15 April 2014, on the matter of protection of the fundamental rights of the Transgenders community. This judgement plays an important role in the life of the third gender persons who did not have a better identification of themselves. The judgement also protects the basic human rights of the third gender persons. Before this judgement, they did not have the identification of themselves as well as they were treated as untouchably, they did not have human rights like right to marry, right to vote, right to claim formal identity through a passport or ration card, right to own property, etc.

The petition of this case was raised a issue that whether persons who fall outside the male/female gender binary can be legally recognized as “third gender” persons. It was recognized by the Supreme Court that that gender identity and sexual orientation include transgenders and that each person self defined sexual orientation and gender identity is integral to their personality. The right to equality is the basic right of all the human beings.

This petition was also raised another issue that whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution of India. The Supreme Court discussed the historical background of transgender community and said that this is the basic human rights of every individual and ‘individual’ includes every person irrespective of caste, gender, religion and sex.

The Supreme Court directed the State Government to take such steps for the welfare of the transgender community in all ways such as:

  • To treat them as socially and economically backward classes of citizens and extend all kinds of reservation for the admission in educational institutions and for public appointments.
  • Operate separate HIV Siro Surveillance Centers since transgenders face several sexual health issues.
  • Address the problems being faced by transgenders such as fear, shame, depression, suicidal tendencies, social pressure, etc.
  • To take steps for making various social welfare schemes for their betterment.
  • To take steps to create public awareness so that TGs will feel that they are also the part of the social life and not to be treated as untouchables.

Conclusion:-

This was taken a great step by the Supreme Court for the better life not only of the transgender community but also of the community who differs from the general notions of the society. This judgement is also an important milestone in furthering the cause against section 377 of Indian Penal Code. The judgement is creating the public awareness with regards to the rights of the transgender community and make them feel as a part of the society.

 

Tulsi Arya

(Writer, The Legal State)

 

[1] NALSA

[2]  “supreme court recognizes transgenders as ‘third gender. Times of india. 15 april 2014. Retrieved 15 april 2014.

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