IN THE SUPREME COURT OF INDIA
Civil Original Jurisdiction
Writ Petition No. 400 of 2012
Petitioners – National Legal Services Authority
Poojya Mata Nasib Kaur Ji Women Welfare Society
Laxmi Narayan Tripathy
Respondent – Union of India & Others
Citation – (2014) Supreme Court Cases 438
Date of the Judgment – 15th April 2014
Bench – S. Panicker Radhakrishnan and A K Sikri, JJ
15th April 2014, a day which created history in the Indian legal system. On this day a Landmark Judgement was given by the bench comprising of Justice K. S. Radhakrishnan and Justice A. K. Sikri on the case of National Legal Services Authority v. Union of India. This judgment is one made India a nation where gender equality matters as it declared transgender who does not fall under male or female category falls under a ‘third gender’ category. It observed that the basic rights granted under the Constitution of India are going to be equally applicable to all or any including transgender people, and gave them the right of gender identity which originally just comprises of male or female but now also right to choose their sex on third gender category. Since years transgender faced torture, shame, discrimination, hatred, abuse and violence because they were not considered in male or female categories. This judgment is the redress for the grievances of the transgender community who suffered since years. This case observed a legal declaration of their gender identity as part of the democracy of India. It concluded that non-recognition of their gender identity violates Article 14,15,16, 19 and 21 of the Constitution of India.
Transgender people have a strong place in our history. It has to light upon that the concept of Hijras and other transgender’s is not new. In ancient India when Lord Rama was sent to exile from the kingdom for 14 years along with Sita and Lakshman, he asked his followers not to accompany him and he asked all the men and women to return. Hijras, who were one among his followers felt that it has not to be followed by them, which in turn impressed Lord Rama. Lord Rama authorized them with the power to bless felicitous occasions like wedding, childbirth and customs like Bidhai during a marriage.
‘TG community comprises of hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shaktis, etc. The concept of Tritiya Prakriti or napunsaka has also been an integral part of Vedic and Puranic works of literature. The word “napunsaka” has been used to denote the absence of procreative capability.’[i]
In Mahabharata, to make Pandavas win the war, Aravan the son of Arjun and Nagakanya offered himself to submit himself to Goddess Kali for a sacrifice, the only condition that was placed was that he has to spend his last night of life in wedlock. When no woman accepted to marry him, Lord Krishna converted himself in the form of a woman called Mohini. The Hijras of Tamil Nadu contemplate Aravan as their predecessors and call themselves Aravanis.[ii]
Now comes the later part of history wherein Hijras held a significant position in the royal courts. In the Islamic era, especially the Ottomans empire and the Mughal empire, they held prominent positions in the administration. They were authorized to give blessings in religious ceremonies of the State. This comprehensive study was done in the book of Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India, Yoda Press (2006).
The position of the Hijras/transgender people changed drastically during the British colonization wherein this community was criminalized and tortured. They were considered a different community altogether, and they were penalized after they were found.
United Nations and other human rights organizations
In the modern era, the core organization for international human rights treaties and the Yogyakarta Principles recognized the rights of transgender persons under human rights. United Nations finds that the protection and promotion of sexual minorities, including transgender persons, has to be focused upon. “Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of the law against such interference or attacks. The International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations took a project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to the State’s human rights obligations.”[iii]
On the application of International Human Rights Law concerning Sexual Orientation and Gender Identity, the Yogyakarta Principles focuses upon[iv]. Yogyakarta Principles is a set of a broad range of human rights standards and their application to issues of sexual orientation gender identity and rights of LGBTQ are protected here too.
In this, there were two writ petitions filed to protect the rights and identity of the transgender community, which was clubbed by the Apex Court. One writ petition No. 400 of 2012 was filed by NALSA constituted under the Legal Services Authority Act, 1997. The other Writ Petition No. 604 of 2013 was filed by Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association seeking similar reliefs in respect of Kinnar community, a TG community.
Laxmi Narayan Tripathy affirmed to be a Hijra, also pleaded before the Court representing the people of the transgender community and his life sufferings for the recognition of their gender identity as a ‘third gender’. Tripathy pleaded before the Court when they are denied as a third gender, then it deprives them of their legal right to choose and practice their sexual orientation. It violates their right to equality and equal protection of law given under Article 14 of the Constitution and right to live with dignity under Article 21 of the Constitution.
As stated by the facts, it is implied that the petitions substantially raise an issue of “Gender Identity”, which is the primary issue. “It has two facets:
(a) Whether a person who is born as a male with predominantly female orientation (or vice versa), has a right to get himself to be recognized as a female as per his choice more so, when such a person after having undergone the operational procedure, changes his/her sex as well;
(b) Whether transgenders (TGs), who are neither males nor females, have a right to be identified and categorized as “third gender”?”[v]
- Article 14: The Article guarantees “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[vi] This Article ensures equal protection of rights. Therefore, it becomes the duty of the State to bring the essential changes in the social, economic and political spectrum. Thus the transgender/ Hijras must also be not denied equal protection of their rights too. To uplift them and to enforce their protection of rights, the necessary changes in all spheres must be taken whether social, political and economical. Also, it is not restricted to the word ‘person’, and its application is only to male or female. It is thus concluded that Hijras/transgender persons who are neither male/female fall within the ambit of expression ‘person’ and, hence, entitled to legal protection of laws in all subsets of State activity, including economic, social and political rights, as enjoyed by any other citizen of this country.
- Articles 15 and 16: Under these Articles, prohibits all forms of gender bias and gender-based discrimination. The discrimination on the ground of ‘sex’ which is done with Hijras/ transgender is invocation of their fundamental rights granted under Articles 15 and 16. Discriminating transgender based on their gender identity in any form falls under violation of these Articles. It has to be understood that the expression ‘sex’ used in Articles 15 and 16 also includes people who neither male nor female and is not just limited to the biological sex of male or female. India is a party to various international conventions and declaration whereby when they are read with the Constitution of India, it abides the State to protect the rights of Transgender and provide them equal status as of others.
- Article 21: This Article of the Constitution of India guarantees the right to life and to live with dignity. It is read as “Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[vii] Right to life is one of the essential fundamental rights which the State in any situation is not empowered to take that away from anyone provided the procedure established by law. Therefore, Article 21 falls under the Golden Triangle Rule, which every law has to pass through. It provides the widest amplitude of rights. Recognition of one’s gender identity also forms the intrinsic part of the fundamental right to dignity. Gender constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition and backing of gender identity is, therefore, an essential part of the right to dignity and freedom guaranteed under our Constitution.
- Section 377 of the IPC: Under this Section in Indian Penal Code, 1860, the sexual orientation or the sexual practices between the transgender was penalized. It was stated that it was needed to revive such a Section to provide the transgender equality, equal protection of their rights and a right to live with dignity as guaranteed by the above Articles.
- National Human Rights Commission vs. State of Arunachal Pradesh[viii] – It was observed under this case that Rule of law not just exists in public order but also it is the way of social life which seeks to provide a balance between the human rights, social needs of people and different rights of the society. Its purpose is to provide to live with dignity and development of the society along with the development of an individual keeping their rights and dignity in view.
- Corbett v. Corbett[ix]– “The Court in England was concerned with the gender of a male to female transsexual in the context of the validity of a marriage. Ormrod, J., in that case, took the view that the law should adopt the chromosomal, gonadal and genital tests and if all three are congruent, that should determine a person’s sex for marriage. The learned Judge expressed the view that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.”[x]
- New Zealand in Attorney-General v. Otahuhu Family Court[xi] – It was observed that when a transgender has undertaken a surgery, that person cannot practice the same sex, he or she originally belonged to.
To protect the rights of transgender under the assurance given in the Constitution of India, it was declared that:
- Hijras, Eunuchs, apart from binary gender should be categorized under “third gender according to guarantee in part III of the Constitution.
- Transgender was sustained with the ‘right to decide their self-identified gender’ and the State has to protect their legal recognition of their gender identity under ‘third gender’.
- It directed the government to develop mechanisms to protect the rights and take steps for the welfare of “third gender”/transgender persons.
This case made history and is a landmark decision which brought a ray of light in the life of transgender as it was a major legal step to make a change towards the torture faced by one that section of society which was no different and still faced discrimination, since years. It was observed the ‘third gender’ identity and upheld the fundamental rights of the LGBTQ community in India. The judgement also directed State to take steps to uplift them economically and secure transgender persons’ rights in all forms whether economic, social, medical, educational or political and bring welfare schemes for them. This one such case that shows that history holds an apology to
[i] National Legal Services Authority v. Union of India, (2014) 5 SCC 438: 2014 SCC OnLine SC 328 at page 463
[ii] M.Michelraj, Historical Evolution of Transgender Community in India, Asian Review of Social Sciences Vol. 4, No. 1 (2015), pp. 17-19.
[iii] National Legal Services Authority v. Union of India, (2014) 5 SCC 438: 2014 SCC OnLine SC 328 at page 465
[v] National Legal Services Authority v. Union of India, (2014) 5 SCC 438: 2014 SCC OnLine SC 328 at page 493
[vi] The Constitution of India
[viii] AIR 1996 SC 1234
[ix] 1971 P 83 : (1970) 2 WLR 1306 : (1970) 2 All ER 33
[x] National Legal Services Authority v. Union of India, (2014) 5 SCC 438: 2014 SCC OnLine SC 328 at page 472
[xi] (1995) 1 NZLR 603