Title: This is a case which gave given us the third gender columns where ever we fill the gender this is not other than the landmark case which gave recognition to the transgender people in the society.

Case Name: NALSA v Union of India

Citation: (2014) SCC 438

Court: Supreme Court of India, Civil Original Jurisdiction

Judge: Justice Mr.K. S. Radhakrishnan and Mr. A. K. Sikri

Decided On: 15th April 2014

Petitioner: National Legal Services Authority, Poojaya Mata Nasib Kaur Ji Women Welfare Society, Laxmi Narayan Tripathy

Respondent: Union of India and others

Case Laws

o   Queen Empress v. Khairati (1884) ILR 6 All 204,

o   Suresh Kumar Koushal and another v. Naz Foundation and others [(2014) 1 SCC 1]

o   Corbett v. Corbett (1970) 2 All ER 33

o   R v. Tan (1983) QB 1053, 1063-1064

o   AttorneyGeneral v. Otahuhu Family Court (1995) 1 NZLR 603

o   Re Kevin (Validity of Marriage of Transsexual) (2001) Fam CA 1074

o   R v. Harris & McGuiness (1988) 17 NSWLR 158

o   Githa Hariharan (Ms) and another v. Reserve Bank of India and another (1999) 2 SCC 228

o   R.D. Upadhyay  v. State of Andhra Pradesh and others (2007) 15 SCC 337

o   People’s Union for Civil Liberties  v. Union of India and another (2005) 2 SCC 436

o   Vishaka and others v. State of Rajasthan and Others (1997) 6 SCC 241

Brief facts of the Case :

1.A petition was filed by NALSA, Poojaya Mata Nasib Kaur Ji Women Welfare Society, Laxmi Narayan Tripathy in the Supreme Court of India for the recognition of the Third gender

2. It is usually seen that as transgender, Hijras/Eunuchs who are not natural male and female they are deprived of all the basic rights like right to vote, aadhar card etc

3. Because they are not recognized as a third gender they were facing a lot of trouble.

4. So the petition was being filed so that transgender can have a recognition in the society and can enjoy the perks of all the benefits provided by the government to the citizens of the country.

Nalsa : National Legal Service Association which is constituted under the Legal Services Authority Act, 1997 and provides for free legal aid services for the weaker and other marginalized sections of the society.

Issues

            Ø  Whether transgender individuals should be recognized as a third gender and given legal protection under the Indian Constitution?

            Ø  Whether the discrimination faced by transgender individuals in various spheres of life is a violation of their fundamental rights?

Contention of the petitioner

o   The counsel appearing on the behalf of the petitioner highlighted the various traumatic experiences faced by the transgender people.

o   They are deprived of all the basic legal rights and even they do not have participation in the society because they have limited access to health and education.

o    the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchables and the constitution does not allows such kind of discrimination under article 14 to 21.

o   They highlighted there existence since the vedic era, during British time when the Criminal Tribes Act was repealed it showed that there were the existence of the Transgender community and even U.N Bodies have recognized the transgender community.

o   They should be recognized as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders.

 Contentions of the Respondent

        o   The matter related to Transgender is a very sensitive issue and a committee regarding this is already been constituted namely called “Expert                             Committee on Issues relating to Transgender”, for in depth study regarding the matter related to transgender.

        o   Transgender community is given due representation to the community before the committee

        o   Hence the matter related to transgender has been countinously been looking by the Government of India.

 Ratio of the Court

                                    o   Article 14 has provided for the right to equality to all the persons of India regardless of their genders

o   Non recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. And also leads to Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.

o   The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.

o   TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to any disability, liability, restriction or condition in regard to access to public places. 

o   TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC.

o    State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied.

o   Trans genders are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.

o   The SC is of the opinion that that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.

o   Article 21 of right to life and personal liberty should be given to each human being irrespective of their gender.

o   Supreme Court pointed out that the historical presence of the third gender in this country as well as in the neighbouring countries. 

o   Articles 14, 15, 16, 19 and 21,indicats, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex.

o   Supreme Court does not accepted  Corbett principle of “Biological Test”, rather they preferred  the psyche of the person in determining sex and gender and prefer the “Psychological Test” instead of “Biological Test”

o   Supreme Court concluded that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.

 Held

                                        Supreme Court allowed the petition and recognized the Transgender Community as the Third Gender.