National Legal Services Authority and Union of India (2014)
National Legal Services Authority and Union of India (2014)
- This case was filed by the National Legal Services Authority of India (NALSA) to legally recognize persons who fall outside the male/female gender binary, including persons who identify as “third gender”.
- The transgender community face a lot of humiliation and disgrace in the present times.
- They are not allowed medical, educational facilities, etc.
- They are exploited and harassed by people.
- All these are violations of the fundamental rights of our country and several International Human rights documents which are given above.
- This eventually led to the filling of the petition.
- By virtue of the same, laws governing marriage, adoption, inheritance, succession, taxation, and welfare were all governed by whether or not you are male or female. Interestingly, this determination of gender is always done at birth.
- It is due to this lack of legal provisions for persons of the third gender that they faced discrimination across various walks of life.
- Thus the case came before the court when a Public Interest Litigation was filed by the National Legal Services Authority followed by other petitioners as well.
Historical Background Of Transgenders
- The concept of Hijras and other transgender’s is not a new concept. They were recognized in ancient India as well.
- Lord Rama, when in exile with Sita and Lakshman from the kingdom for 14 years, turns around his followers and asks all men and women to leave them alone and return back to the city. Among the followers, Hijras were also there who did not feel that they should follow this order. Lord Rama was very impressed by this and gave them the power to bless on auspicious occasions like childbirth and marriage.
- Transgender’s which include Hijras, Kothis; Aravanis have a very strong presence in Hindu mythology and other religious texts.
- The onset of colonial rule changed everything from the 18th century onwards.
- Early European travelers showed that they showed disgust by the sight of Hijras and could not understand why they were given so much respect in the royal courts and other institutions.
- In the second half of the 19th century, the British colonial administration tirelessly tried to criminalize the Hijra community and deny them civil rights.
- Hijras were considered to be separate caste or tribe in different parts of India by the colonial administration. The pre-partition stage changed the conditions of the transgender community.
- The Court had to decide whether persons who fall outside the male/female gender binary can be legally recognised as “third gender” persons.
- It deliberated on whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution of India.
- It referred to an “Expert Committee on Issues Relating to Transgender” constituted under the Ministry of Social Justice and Empowerment to develop its judgement.
International laws Violation
There are many international laws as well which are being violated according to the petitioners which are as follows
- International Covenant on Civil and Political Rights (ICCPR).
- Article 6 (right to life).
- Article 7 (prohibition of torture or cruel, inhuman or degrading treatment).
- Article 16 (recognition before the law),
- Universal Declaration of Human Rights (UDHR)
- Article 6 (right to life)
- Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 6 (right to privacy), 4 (right to life), 9 (right to treatment with humanity while in detention), 6 (right to privacy), 18 (protection from medical abuses)
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Articles 11 (discrimination in employment) and 24 (commitment of State parties)
- Convention for Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights), Article 8 (right to respect for private and family life) and 14 (non-discrimination)
- Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International Conventions)
Judgement | National Legal Services Authority and Union of India (2014)
- It was a divisional bench. The judgment was given by Justice K.S. Radhakrishnan and Justice A.K Sikri. However, Justice A.K Sikri gave a separate opinion with some additional comments.
- The judgment relied on many courts of foreign countries such as courts of Malaysia, Pakistan, New Zealand, Australia, and English courts as well.
- The Court recognised that third gender persons were entitled to fundamental rights under the Constitution and under International law. Further, it directed state governments to develop mechanisms to realise the rights of “third gender”/transgender persons.
- The Court held that transgender’s falls within the purview of the Indian Constitution and therefore should enjoy all the rights of the Constitution.
- Article 15 requires the improvement of socially and educationally disadvantaged groups. The Court said that transgender has not been able to enjoy the provisions as under Article 15(4) for the advancement of the socially and educationally backward. They constitute such a group and the state is bound to take some proper action to remedy the injustice done to them for centuries.
- The Court stated that a person’s right to show or express gender identity through words, dress, action or behavior is included in Article 19 (right to freedom of expression). Privacy, self-identity, autonomy, and personal integrity are fundamental rights protected by Article 19.
- The Court also held that the Transgender community has the right to Article 21. They have the right to live a dignified life and enjoy personal liberty.
- The Court declared that the Centre and State governments must grant recognition of gender identity as male, female or third gender in the eyes of the law. It was observed that transgender’s require full recognition in the eyes of the law. They should get to enjoy health care, education, etc.
- By this judgment, all government documents such as ration card, passports, etc. would recognize third gender. The Court also held that the transgender’s are citizens of India and are fully entitled to get the benefit of all schemes and programs launched by the Government irrespective of their population.
- The Court held that public awareness programs were required to tackle stigma against the transgender community. It also directed the Central and State Governments to take several steps for the advancement of the transgender community, including:
- Making provisions for legal recognition of “third gender” in all documents
- Recognising third gender persons as a “socially and educationally backward class of citizens”, entitled to reservations in educational institutions and public employment.
- Taking steps to frame social welfare schemes for the community
Significance | National Legal Services Authority and Union of India (2014)
- This is a landmark decision because it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender persons in India. The judgement also directed Central and State governments to take proactive action in securing transgender persons’ rights.