In the Supreme Court of India Civil Original Jurisdiction Case No. Writ Petition No. 400 of 2012 Petitioner National Legal Services Authority Respondent Union of India & Ors. Date of the Judgment 15th April, 2014 Bench S. Panicker Radhakrishnan Justice, A K Sikri Justice
Background
Political background
National Legal Services Authority was formed on 9th November 1995 under the authority of the Legal Services Authorities Act, 1987. Its purpose is to provide free services to eligible candidate and to organize Lok Adalat for speedy resolution of cases. The Chief Justice of India is patron in chief of NALSA while second seniormost judge of Supreme Court of India is Executive Chaiman. There is a provision for similar mechanism at state and district level also headed by Chief Justice of High Court and chief judges of District Court repectively. The prime object of NALSA is speedy justice cases and reucing the burden of judiciary.
NALSA was the primary petitioner. It had been constituted with the primary objective of providing free legal aid services to the advantaged sections of Indian society. Other Petitioners were Pooja Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathi, a renowned Hijra activist.
Lakhshmi served on the boards of several NGO’s which conduct LGBT activist work. In 2002 she became president of the NGO DAI Welfare Society, the first registered and working organization for eunuchs in South Asia. In 2007 she started her own organization, Astitva. She is also the first transgender who has attended Asia Pacific and spoken about Transgender issues.
International Background
In the European Union, a 1996 decision of the European Court of Justice in P v S and Cornwell County Council provided protections from employment discrimination related to “gender reassignment”. The United Kingdom formalized this EU decision when it passed the 1999 Sex Discrimination Regulations. This law provides protections for transgender people “intending to undergone gender reassignment” and applies to any stage of employment. South Africa and many states and territories of Australia also prohibit discrimination against transgender people. Businesses that operate in these countries are prohibited, and could be held liable for, discrimination against or harrassment of transgender employees.
The right to equality and non-discrimination are core principle of Human rights enshrined in UN Charter. The UDHR are unequivocal: “All human beings are born free and equal in dignity and rights”. The rights of LGBT are also protected here.
In June, 2011, the United Nations General Assembly, in a series of resolution has called on states to ensure the protection of the right to life of all persons under their jurisdiction and to investigate promptly and throughly all killing including those motivated by the victim’s sexual orientation and gender identity .
In June, 2011, the United Nations Human Rights Council became the first UN intergovernmental body to adopt a wide ranging resolution on human rights, sexual orinetation and gender identity.
Judicial Background
The right to treat equality and equal treatment of persons is a right recognized by Article 14 of the Constitution. It specifically provides that no ‘Person’ shall be discriminated on the basis of Sex/gender. TG’s do fall within equal protection of ‘Person’.
The same way Article 15, 19(1)(a) and Article 21 of the Constitution are also protecting the rights of the TG’s. The Hon’ble Apex Court provided rights to TG’s with the help of these constitutional provisions. Judiciary played a ver important role to recognize the position and recognizing the rights of TG’s.
Facts
1. In Indian history of our country, Transgenders Community was accorded a secial and important status. The Hindu mythology, Vedic and Puranic literature recognized them as the Third Gender and bestowed them with great respect. They played a very important role in the royal courts and also were considered to have a great power to give blessings and curse.
2. Lord Rama, in the epic Ramayana, was leaving for the forest upon being banished from the kingdom for 14 years, turn around to his followers nd asks all the “men and women” to return to the city. Among his followers, the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people on auspicious occassions like childbirth and marriage, and also at inaugural functions which, it is believed set the stage for the custom of badhai in which hijra sing, dance and confer blessings.
3. Aravan, the son of Arjun and Nagakanya in Mahabharta, offer to be sacrified to goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war, the only condition that he made was to spend the last night his life in matrimony. Since no women was wiling to marry one who doomed to be killed, Krishna assumes the form of a beautiful women called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis.
4. Thos respectful status of TG’s Coomunity has been changed after British rule in India and colonialist treated them in an inhumane manner.
5. After British rule also the same was followed in India and not treated like humane manner.
6. The Petition is filed in the Hon’ble Supreme Court to recognize the gender of Transgenders. The gender of a person is determined from his or her birth and rest things like adoption, marriage, inheritance, succession, taxation and welfare are determined accordingly. But the gender of Transgenders are not determined yet, hence, the same is filed seeking recognition of gender for Transgenders.
Issues Raised
1. Non recognition of their gender indentity is a violation of their fundamental rights.
2. Whether TGs have this freedom to choose their gender.
3. Whether the state should make such legislations to protect the rights of TG’s.
Arguments
Petitioner’s Argument-
- It was claimed by the Petitioner that every TG person should have this option to choose their sex and determine their identity. Counsel has submitted that since the TG are neither treated s maleor female, nor given the status of third gender, they are deprived of many of the rights and privileges which other person enjoy as citizens of this country. TG’s are deprived of all social and cultural participation and hence restricted access to education, health care and public places which deprives them of the constitutional guarantee of equality before law and equal protection of laws.
- They also highlighted that the state can not discriminate them on the ground of gender, violating Article 14, 16 and 21 of the Constitution of India.
- They also submitted that non-recognition of gender idntity of the TG Community violates the FR’s guaranteed to them, who are the citizen of this country.
- It was also submitted by the Petitioner that TG’s should be declared as a socially and educationally backward classes of citizens and must be accordingly should provide them all the benfits available.
- Petitioner also submitted that she herself faced many major discriminations in her life. Society and even state has treated them like criminals.
- It is the duty of the state to make such legislations to protect the rights of the TG’s.
Respondent’s Argument-
- Respondent explained all the specific steps taken by the state to improve the condition of a TG.
Judgment
We have referred exhaustively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of “Sex identity gender” of persons and “guarantee to equality and no-discrimination” on the ground of gender identity and expression is incresing and gaining acceptance in international law and, therefore, be applied in India as well.
They were really concerned with the grievances of the members of TG’s Community who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayers is that non-recognition of their gender identity violates Article 14 and 21 of the Constitution of India.
The Hon’ble court found that the Applicant has faced various serious discrimination throughout her life because of her gender identity. It has been clear to the Applicant that the complete non-recognition of the idntity of Hijra/ transgenders persons by the state has resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution of India.
Hijra are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since Hijra do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutinal ” third gender”. TG also includes persons who intend to undergo Sex Re Assignment Surgery or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They also called as transsexual persons.
In Corbett v. Corbett, 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, gondal and genital tests and if all three are congruent, that should determine a person’s sex for the purpose of marriage. 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 changed either by the natural develpment of organs of the opposite sex or by medical or surgical means. Later, in R v. Tan, the court of Appeal applied corbett approach in the context of criminal law. The Court upheld convictions which were imposed on Gloria Greaves, a post-operative male to female transsexual, still being in law, a man.
A.B. v. Western Austrlia was a case concerned with Gender Assignment Act, 2000. In that Act, a person who had undergone a reassignment procedure could apply to Gender Reaasignment Board for the issue of a recognition certificate. Under Section 15 of that Act, before issuing the certificate, the Board had to be satisified, inter alia, that the applicant believed his or her true gender was the person’s reassigned gender and had adopted the lifestyle and gender characteristics of that gender. Majority of Judges agreed with Lockhart, J. In SRA that gender should not be regarded merely as a matter of chromosomes, but partly a psychological question, one of self-perception, and partly a scoial question, how society perceives the individual.
The court has referred exhusively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of “sex identity gender” of persons, and “guarantee to equality nd non- discrimination” on the ground of gender identity or expression is increasing and gaining in international law and, therefore, be applied in India as well.
In Dattatraya Govind Mahajan vs. State of Maharashtra (AIR 1977 SC 915) this Court observed: “Our Constitution is a tryst with destiny, preamble with luscent solemnity in the words ‘Justice – social, economic and political.’ The three great branches of Government, as creatures of the Constitution, must remember this promise in their fundamental role and forget it at their peril, for to do so will be a betrayal of chose high values and goals which this nation set for itself in its objective Resolution and whose elaborate summation appears in Part IV of the Paramount Parchment. The history of our country’s struggle for independence was the story of a battle between the forces of socio-economic exploitation and the masses of deprived people of varying degrees and the Constitution sets the new sights of the nation…..Once we grasp the dharma of the Constitution, the new orientation of the karma of adjudication becomes clear. Our founding fathers, aware of our social realities, forged our fighting faith and integrating justice in its social, economic and political aspects. While contemplating the meaning of the Articles of the Organic Law, the Supreme Court shall not disown Social Justice.”
In National Human Rights Commission vs. State of Arunachal Pradesh (AIR 1996 SC 1234), This Court observed:
“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws.”
We, therefore, declare:
1. Hijras, Eunuchs, apart from binary gender, be treated as “Third gender” for the purpose of safeguarding their rights under Part III of the Constitution and the laws made by the Parliament and the State Legislature.
2. TG persons’ right to declare their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
3. We direct the Centre and the State Government to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
4. Center and State has directed to establish special Hiv cells for TG’s.
5. Center and State Government should take proper measures to provide medical cae to TG’s in the hospital and also provide them separate public toilets and other facilities.
6. Centre and State Goverment should take proper measures to provide medical care to TG’s in the hospitals and also provide them separate public toilets and other facilities.
7. Center and State should take steps for framing varios social welfare scemes for their betterment.
8. Center and State should take steps to create public awaeness so that TG’s will feel that they are also part and parcel of the social life and be not treated as untouchables.
Case comment
God has made different people to balance the earth. TGs are also have their natural feeling created by god. Neither it is a diseaese nor modern impact but it si feeling to some special people by god. These people are as normal as any other human being but unfortunately society traets them like aliens, impact of western culture, animals etc. They do face various bad and tragic experies every second and still they only give blessings to others. Even after recognition and ratification of various human rights, they are fighting every single secong to get accepted in this society. We should treat them with love, respect and provide them all opportunities available to any other person. Discrimination and abusive language against them is the worst example of violation of basic fundamental and human rights. It is a huge shame on humanity.
Edited by Shuvneek Hayer
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
