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CASE COMMENT: NALSA VS UNION OF INDIA (2014)

AUTHOR- AKANKSHA,GURU NANAK DEV UNIVERSITY, AMRITSAR.

Petitioner -              NALSA( National Legal Services Authority)

Respondents - UNION OF INDIA.              

Dated -15 April 2014

INTRODUCTION

NALSA (National Legal Services Authority) vs Union of India is the landmark Judgement dated 15 April 2014 given by Supreme Court by the bench of judges consisting of Justice K. Radhakrishnan and A.K. Sikri. 

National Legal Services Authority introduced under the Legal Services Act 1997 engages in providing facilities and equal status to weaker sections of society and the people who are disbarred from the social status. This case is concerned with the rights and identity of transgender society. After this judgment transgenders are provided their identity recognition under Article 14, 15, 16, and 22 of the Indian constitution. Transgenders community comprises of Hijras, Eunuchs, Kothis, Jogappas, Shiv-Shakthis etc. 

have to face a lot of problems demand legal status as third gender because they were always side-lined as untouchables in the society. They were always abused at different places of society like railway stations, markets, workplaces, malls. Our society always failed to embrace different gender's identity and should need to change the same.

FACTS OF CASE 

This case concerns the legal recognition of the transgender community, that whether lack of law measures not identifying those half male and females contradicts our constitution. As a gender of the person assigned to him at his birth determines one's right of marriage, life, education, social respect, but due lack of legislative measures this community faced a lot of miss happenings and discrimination. They continuously face violence and sexual assault as they are not recognized as normal genders like men and women.

Two writ petitions are filed by different people by some of the non-governmental organizations and some women's welfare society. National Legal Authority filed first writ petition in 2012. Then Mata Nasib Kaur Ji under women welfare, the registered association also filed a wit petition in 2013 in favor of the Transgender community.

After that, a Hijra named Laxmi Narayan Tripathi who has also got affected through society also got impleaded to put across the cause of the members of the transgender community. Moreover, Tripathy’s life experiences for recognition of their identity as a third gender, over and above male and female is also questioned. He says that non-recognition of the identity of Hijra denies them from the right of equality before law and equal protection of law and right to live freely and also violates Article 21 which provides right to life guaranteed by the Indian constitution.

NALSA further submitted the experiences faced by the members of the TG community that shows up every person of that community has a legal right to decide their sex gender and determine their identity. Then both petitions get filed as they are violating Fundamental rights guaranteed by the Indian constitution and many International Human Rights Councils

LEGAL ISSUES

Whether the kinner community should get the right of equal identification and categorised as third gender community?

Whether their right of Article 14 and 21 are violated by society?

Whether states can make legislation to protect their rights? 

LEGAL COUNSEL FOR BOTH PARTIES

Learned senior counsel for petitioners has submitted that since the TGs are neither treated as male or female nor given the equal gender status, they are being deprived of a variety of the rights and privileges which other persons enjoy as the citizens of this country. Kinners are always kept away from social and cultural participation plus experienced restricted access to basic facilities and public places which the Constitution has guaranteed of every other citizen as equality before law and equal protection of laws. They submitted that this depravation excluded them to enjoy the right of Articles 14, 15, 21 of the Constitution. Further, they are also deprived of the right to contest election, right to vote, employment, to get licenses. 

Shri Sanjeev Bhatnagar appearing for the petitioner in Writ Petition No.604 of 2013, highlighted that Kinners are the most deprived group of transgenders who calls for constitutional rights as well as legal protection for their identity and other socio-economic benefits they are deprived off.

Learned counsel appearing for various States and Union Territories (respondents) who have explained the steps which they have taken to improve the conditions and status of the members of the TG community in their respective States and Union Territories. Laxmi Narayan Tripathy, a Hijra, through a petition supported by an affidavit, highlighted the trauma undergone from Tripathy’s birth. Rather than quoting these words input language, it would be much appropriate to quote the same in Tripathy’s own words.

“That the Applicant has born as a male. Growing up as a child, she felt something different from the boys of her age and was feminine in her own ways. From an early age, she faced repeated sexual harassment, molestation and sexual abuse both, within and outside the family. Due to being different from other groups of members, she kept herself isolated in a small room and had no one to talk tor to express her feelings about her identity. She was abused by everyone as a ‘Chakka’ and ‘Hijra’ regularly.

RULES/LAWS 

There are a plethora of regional variations that are in the use of terms referred to Hijras. To exemplify, Kinners (Delhi) and Aravanis (Tamil Nadu). Hijras may earn through their traditional work: ‘Badhai’ (clapping their hands and asking for alms), blessing new-born babies, or dancing in ceremonies. Whereas Some proportion of Hijras are also engaged in sexual works for lack of other job opportunities, while some may be self-employed or work for non- governmental organizations.” (See UNDP India Report (December, 2010). Every definition of them is briefly explained in the original judgement given by supreme court in 2015.

· International laws - . Article 1 of the Universal declaration on Human Rights, 1948, states that all human-beings are born free and equal in dignity and rights. Article 3 states that everyone has a right to live freely with security. Article 6 of the International Covenant on Civil and Political Rights, 1966 and Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights provides that no one shall be subjected to torture.

· Article14 of Indian constitution instituted that State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom and provide equal protection to all before law.

Article 15 states that the State shall not discriminate against any citizen on the ground of sex and gender to have access to shops, public restaurants and places of public entertainment or use of wells and bathing areas. The article also provided requirement of taking affirmative action for the advancement of any socially and educationally backward classes. In addition Article16 provide equal opportunities of work for every citizen no matter what gender he /she belongs to and no discrimination on basis of sex, gender, birth etc.[Para 59 of The judgement]

Article 21[i]is the heart of constitution as it provides every person right to life. It also provides” Protection of life and personal liberty” –which means that, No person shall be deprived of his life or personal liberty except according to the procedure established by the law.” Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right.

Foreign judgement/ Legislations considered by Supreme Court

Many countries like USA, Britain, Australia, Canada have given recognition to rights of other genders under International Human rights. In Australia Sex Discrimination Act 1984 was replaced by Sex Discrimination Act 2013 which defines whether gender identity can be decided by way of medical examination or not. 

Article 6 of theUniversal Declaration of Human Rights, 1948 and Article16 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 must be protected by law. 

In Attorney General v. Otahuhu Family Court [5](1995)New Zealand, it is held that once a transsexual person goes under surgery, he or she is no longer able to operate in his/ her original sex. It was held that there is adequate test where it should be decided, the person has undergone surgical and medical procedures.

Under Corbett vs Corbett (1970)[ii], the Court in England was concerned with the gender of a male to female transmission in the context of the validity of a marriage. In that case the law is of view that legislation should adopt the chromosomal and genital tests and if all of them comes identical, that should determine a person’s sex for the purpose of marriage.

LEGAL RECOGNITION OFTRANSGENDERS

Gender identity refers to a person’s internal sense of being male, female or a transgender. for example Hijras do not identify neither a female because of their lack of reproductive capability. This difference makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender” commonly renowned as kinner. But the definition of transgender as so far doesn’t includes Gay, Lesbian, Kinners, Hijras, Kothis, Shivshaktis etc.

Hijras are biological males who reject their ‘masculine’ identity and to identify themselves neither as women nor men so they are “in-between man and woman.

Kothis are heterogeneous group. ‘Kothis’ can be described as biological males who show varying degrees of ‘famines. Some proportions of Kothis have bisexual behaviour and get married to a woman.

Shiv-Shakthis are considered as males who are particularly close to a goddess and have feminine expression. Usually, they are inducted by senior gurus, who teach them the norms, customs, and rituals.

Indian law while giving the judgement take views of international laws , cases held there for gender equality and many other international conventions. Legislation of other countries are also Considered while dealing with rights of transgenders.

OBITOR DICTA OF CASE

It was declared by two bench judges that the rights of transgenders and kinners guaranteed under Indian Constitution are enjoyed by them with due respect to them as provided to every citizen of this society. Secondly, they declared all the Hijras and transgender as third gender. In addition, gays, lesbians, Kothis, Shivshaktis are not covered under transgenders.

Legal recognition of transgender – the court decided that how the actual procedure of recognition takes place. In that regard court said they should prefer the psychological test rather than biological test. They also declared that Sex reassignment surgery illegal for changing gender.

Directions to Central and State Governments:

· Supreme court directed state and central government to grant legal identity to these people as third gender.

· Operations like HIV centres are also to be established under as they faced a lot off sexual assault and misbehavioral health issues.

· Also directed them to treat them as educational and socially backwards people and provide equal reservation to them in field of work and job opportunities.

· Any act done against them in respect to any bullying, harrassment and sexual abuse is treated to be an offence under Indian Penal code.

· Proper establishment of medical facilities and also provide them separate toilets and restrooms.

· Engaging themselves in other activities like camps organised for public awareness of their identity as they are also a part of society and not be treated as untouchables.

· Framing of organisations and NGOs and other welfare programs to get people aware of their rights.

Conclusion:

National Legal Services Authority v. Union of India is a landmark decision made by judges of the Supreme Court of India, which declared transgender people as a 'third gender', by assuring that the fundamental rights granted under the Indian Constitution will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. This is a major step towards declining the biasness of gender in India. Moreover, the judgement also held that because transgender people were treated as socially and economically backward classes, so reservations will also be granted during admissions in educational institutions and jobs and both central and state governments are given directions to implement the strategies for the safety of transgender.

 [1]AIR 2014 SC 1863 ,K S RADHAKRISHNAN & A K SIKRI

[5] (1995) 1 NZLR 603




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