Introduction:
National Legal Services Authority v. Union of India[1] is a Supreme Court (SC) landmark judgment on Recognition of Transgender Rights in India. The case was decided on 15th April 2014 by a bench consisting of Justice K. S. Radhakrishnan and Justice A. K. Sikri. The judgment is concerned about the plight of transgender communities in India. The judgment confers a redressal for the grievances of the Transgender community by providing a legal recognition or legal declaration of the rights of the transgender community because non-recognition of their rights amounts to a violation of Art 14, 15, 19, and 21 of the Constitution of India.[2] Generally, in India, transgender people are deprived out of their basic rights. The transgender community is composed of Hijras, Eunuchs, Siv-Shaktis, Kothis, Aravanis, andJogappas. The story of transgender people is filled with pain, misery, and agony. They are considered untouchables just because they do not fit with the norms of society. Many times they are subjected to physical and mental abuses. They are excluded from society and are denied proper education and other basic needs. The transgender community has faced a lot of gender recognition problems in society. Before, NALSA v. UOI judgment it is difficult for transgender people to get their grievances redressed, due to improper recognition of their legal rights. It is because of this judgment the rights of the transgender community are protected and they are recognized as citizens of India.
Facts:
The case was started with the filling of two writ petitions, to safeguard and protect the rights of the people from transgender communities, brought by ‘National Legal Services Authority (NALSA)’ which was constituted under the National Legal Services Authority Act 1997 and by ‘Poojya Mata Nasib Kaur Ji Women Welfare Society’, a registered association formed for protecting the rights of the ‘Kinnar Transgender community and Lakshmi Narayan Tripathi, who considered himself as a Hijra, approached the court to protect and safeguard his rights so that he and his community will not be discriminated against anymore, was also impleaded in this case.
Issues:
The issues of the case were regarding recognition of gender identity and protection of the rights and interests of transgenders in society. The case was revolved around two particular issues. They are:
- Whether a person who is born as a male, but familiarizes himself as a female, have a right to be recognized as female? The same question pops up when a person has undergone surgery to change his/her sex.
- Whether a person who has not identified himself/ herself either as male or female, can be recognized as transgender?
Petitioner’s Argument:
The arguments of the petitioners were on seeking recognition of transgender rights in society. They argued that non-recognition of transgender rights will amount to a violation of Art. 14, 15, 19, and 21 of the Constitution of India. They further argued that non-recognition of transgender rights led to abuse of individuals from transgender communities and deprivation of civil and human rights. In short, the petitioner seeks redressal against discrimination by recognizing and protecting the rights and interests of trans genders.
Respondent’s Argument:
The respondents argued that the state has set up an Expert Committee to research the issues relating to transgenders. And it also said that the Expert Committee was working forward to sort out the issues faced by the transgenders. The respondents further contended that the committee will also consider the contentions raised by the petitioners, and the various states and union territories in India were working for the betterment of the lives of Trans genders.
Judgment:
The court has upheld the rights and interests of the transgender communities. The court has declared that Hijras, Eunuchs should be treated as transgenders, apart from binary genders. The court also declared that transgenders have the right to decide their genders. The Supreme Court in the present case has relied upon the judgments of foreign courts in New Zealand, Malaysia, Pakistan, Australia, and England. The Supreme Court also has set up some guidelines for Central and State governments to protect the rights and interests of transgenders against discrimination.
The Supreme Court (SC) has directed the Central and State governments to:
- Legally recognize the gender of a person as male, female or trans genders.
- Take all essential steps to treat them as socially and educational oppressed sections of the society and take steps to include them for reservation in educational institutions and public appointments.
- Operate many HIV-Sero Surveillance Centers since many people from transgender communities are facing sexual health issues.
- Provide proper medical care to the trans genders in the hospitals and provide separate public toilets and restroom facilities for trans genders.
- Take measures to create awareness about Trans genders among people so that they will be considered as a part and parcel of society.
- Take measures to frame various social schemes for the welfare and betterment of Trans genders.
- Take measures to protect them from problems like fear, gender dysphoria, social pressure and depression arose due to social stigma
- Take measures to regain their self-respect which they enjoyed once in society.
Analysis:
The word ‘Person’ in Art 14, 15, 19, and 21 of our Indian Constitution is gender-neutral. It denotes everyone irrespective of their gender. The main motto of our Indian constitution is to give equal protection to all without any sort of discrimination. The Part III of our Indian Constitution confers fundamental rights on its citizens and protects all persons irrespective of their genders. Any person whose fundamental rights are violated can get relief under the Constitution of India since it is a violation of their fundamental rights. Therefore, when the rights and interests of trans genders are said to be violated, when they are deprived out of their civil rights, when they are deprived out of their basic human rights and subjected to mental and physical abuse, and when they are deprived out of education, medical aid, and employment, then they can approach the court for redressal because it is a violation of fundamental rights conferred under our Indian constitution and therefore their rights and interests should be protected.
Conclusion:
The judgment delivered by the SC in NALSA V. UOI is a new ray of hope for transgender communities. The judgment of the Supreme Court will pave way for the betterment of the human rights of transgender communities. To conclude, creating awareness about the transgender communities among people by imparting basic education, will surely add more power to the judgment and make society a better place for trans genders to live.
[1] AIR 2014 SC 1863
[2] Art 14- Equality before Law; Art 15- Prohibition of discrimination on grounds of religion, race, sex, caste, or place of birth; Art 19- protection of certain rights regarding freedom of speech, etc.; Art 21- Protection of Life and Personal Liberty.
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