BY: Upasana chopra & Nisarg Trivedi
Bench = Justice K.S. Radhakrishnan, Justice A.K. Sikri
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. = 400 OF 2012
NATIONAL LEGAL SERVICE AUTHORITIES ……………….PETITIONER
UNION OF INDIA AND OTHERS ………………………………….. RESPONDENT
WRIT PETITION (CIVIL) NO. = 604 OF 2013
Background of the case
It is generally observed that the members of transgender community face the pain, torture, and sufferings in our society,and they always have a negative feeling of being the part of transgender society particularly of those persons whose body and mind reject their biological sex. The community mostly exploits the transgender and in the public gatherings like, jobs, hospitals, bus stops, railway stations, malls, these are considered as untouchables, ignoring the general idea that negligence lies in the community unwillingness to change their mindset towards transgender people.Transgenders are always teased because of which they felt very ashamed.
They face a grave form of discrimination all over their life concerning their gender identity and due to the non-recognition of their identity infringes their fundamental rights, Article 14 and Article 21 of the Constitution. Article 14 mentions that all persons shall be treated equally, and no one shall be discriminated based on gender and thus transgender should also lie within equal preservation of rights as any other individual. Also, the concept of gender equality is one of the ideas of Human Rights included in the UN Charter. The Universal Declaration of Human Rights is definite that all the individuals are born with the same rights and therefore the rights of members of the transgender community are also protected here.
It has been noticed that throughout history transgender community people had played an important role but from the beginning of 18 century, their situation had been changed in the society. At the time of British rule, an act called the Criminal Tribes Act, 1871 was passed to check the activities of the transgender community which considered the members of the transgender community as ‘criminals. The Act states inspection over certain criminal tribes who appeared to be dressed as women in a public gathering, such individuals should be arrested without any warrant and should be imprisoned for two years or fine or both.
Also, Section 377 of IPC criminalises all non-vaginal sexual acts between the individuals even including oral sex and anal sex, the time when members of the transgender community were also involved in laid down sexual practices. The recommendation was made by stating the judgement of case ‘Allahabad High Court in Queen Empress V. Khairati’where a transgender individual was taken into custody under Section 377 of IPC. This case focuses on the issue that Section 377 was considered as a tool of physical abuse and torture against the members of the transgender community. Although, a Division Bench in the case of ‘Suresh Kumar Koushal and another Naz Foundation and others’has already given its judgement of Section 377 Constitutionality. Therefore, the case was filed in the Supreme Court of India related to the legal gender rights of the transgender people.
Facts of the case
In the year 2012, the National Legal Service Authority was formed under Legal Service Authority Act, 1997 as to provide the recognition to the exclusion and disempowerment members of the society by filing a Writ Petition Number 400 of 2012 in the Supreme Court of India. The petitioner side was also composed of the non-government organisation who was representing the transgender society and a person who recognised himself as a Hijra. Also, Writ Petition Number 604 of 2013 was filed by Women Welfare Society, Poojaya Mata Nasib Kaur Ji asking same consolation for the members of transgender society.
The word Hijra, in South Asia, is used to express the persons of the transgender community. The transgender society in South Asia is used to narrate many genders non-conformity. The term generally includes castrated men as well as non-castrated men, hermaphrodites. These people generally do not have the reproductive organs of either sex. Transgender is usually narrated as an umbrella for many individuals whose gender recognition or their behaviour pattern does not show that to which gender they belong. These people are not included in the men category by their looks and are also not included in female’s category though they take up shape as women with no menstrual cycle and no female reproductive organ.
The petition filed in the Supreme Court of India was to find the legal gender identity of transgender people that one is given during the time of birth. The petition also states that the non-identification of their gender recognition infringes Article 14 and 21 of the Constitution of India. They also state that they are being excluded from the equal protection of laws and social welfare programmes. The transgender community states that the pre-existing laws were relating to the males and females only thus ignoring the people belonging to the transgender community.
On the other hand, the Additional Solicitor General, who was representing the respondent side stated that although the above-stated situation is a serious issue an Expert Committee has already been set up to solve the issues that are faced by transgender society.
Arguments raised from Petitioner side —
Shri Raju Ramachandran, the learned senior counsel appearing from the side of National Legal Service Authority, the petitioners pointed out towards the fact of the painful condition of the members of the transgender community and made a statement that every member of that society has a legal power to identify their sexual orientation and to give recognition to their identity. The petitioners stated that since the transgender people are neither counted in the category of male, not in female and nor given identity as of the third gender, because of which they are not given equal protection of laws as compared to other citizens of the country. Transgenders are usually considered as backward classes because of which they face elimination in areas of contesting elections, voting purposes, and work opportunities. Also, they are not given equal importance in the field of education, at hospitals and other public gatherings due to which their fundamental article, Article 14 (right to equality) and Article 21 (right to life and personal liberty) of the Constitution are violated.
The petitioners side also states in earlier times members of the transgender community played a prominent role in Indian society as mentioned in Hindu Mythology, Vedic and Puranic Literature. But, in recent times the situation changes, the non-identification of their status infringes their principle rights as granted to them by the Indian Constitution to all the citizens of the country. Also, Shri T. Srinivasan Murthy, learned counsel appearing from the side of petitioners argued that as the members of the transgender community are treated as untouchables and members of socially backward classes but these group of people should be given same facilities and also the equal protection of legal rights as given to the other citizens of the country like men and women. The learned counsel also stated that the right to choose one’s gender should be counted as an important part of the right to life which is considered under Article 21 of the Indian Constitution. Therefore, he stated that the members of the transgender community should be given an option to choose their gender as male, female or to be counted in the category of the third gender.
Arguments raised from Respondent side –
The Additional Solicitor General, Shri Rakesh K. Khanna appearing from the side of respondents, the Union of India states that issues faced by the transgender community is a serious one and it should be considered as an important humanissue. Therefore, the respondents mentioned that the Ministry of Social Justice and Empowerment, a committee has called up an Expert Committee to look upon the issue of transgenders by studying up the problems faced by them and has recommended the steps which can be adopted as to improve the condition of the members of the transgender community. They stated that to improve the transgender people situation different steps have already been taken in the respective States and Union Territories. The respondent side also stated that the main aim of the Expert Committee is to address up the grievances of the transgender community so, the person appearing before the court, the petitioners,their views would also be heard up by the Expert Committee.
The division bench, composed of two judges, Justice K.S. Radhakrishnan followed by Justice A.K. Sikri, who gave the judgement in the present case. The Supreme Court of India stated that the members of the transgender community are taken as most disadvantaged groups among all other groups and they are being excluded from the public gatherings including workplaces, education sector, hospitals which further creates the feeling of distress among them. Transgender community face social discrimination since the 18th century. And to avoid the above situation of transgender people and to give them equal protection of their legal rights, the centre and the state government need to take some steps. So as per the judgement, the person coming outside the category of male and female should be considered in the category of the third gender.
And gender identity is integral to one’s personality and one of the most aspect of self-determination so no third gender individual should be forced to undergo any medical treatment as it would infringe their right to privacy. The bench also discussed the respective jurisprudence of other countries like Australia, New Zealand, and the United Kingdom as to identify the basic rights of the members belonging to the transgender community by discussing the following cases, Corbett V. Corbett, R V. Tan,andAttorney General V. Otahuhu Family Court.They concluded that India must follow International Principles on Human Rights as the country does not have laid down the proper legislation for safeguarding the interest of the transgender community.
The Supreme Court also mentioned that since gender recognition is the integral and the most important part of an individual’s personality, therefore, for members belonging to the transgender community, it should not be made mandatory that they have to undergo medical treatment to get the legal identity of the gender. The court further stated that the power to choose one’s gender recognition should be considered with the right to life with equal protection and hence it is covered under Article 21 of the Indian Constitution.Article 21 of the Indian Constitution is interpreted as to include all the issues that make the individual life meaningful. So, the power given to the person to choose one’s gender identity must also be considered under Article 21 of the Indian Constitution. So, the rights of the transgender community need to be protected without any discrimination based on gender.
The Supreme Court further states that since every person is entitled to the right to equality before the law as stated by Article 14 of the Constitution, so all the citizens either male, female, or transgender people should be treated equally. Members of the transgender community are also eligible for the right to laws in every sphere including employment, education facilities, healthcare facilities, and voting rights. Therefore, giving equal opportunities to the transgender people in all aspects as compared to the other citizens of the country protects the Article 15 (non-discrimination) and Article 16 (equal opportunities in public employment) of the Indian Constitution. The court also mentions that since Article 19 of the Constitution guarantees the right to expression therefore, every citizen including transgenders has the right to choose their words, the way of dressing, or their behaviour. Personal integrity is something safeguarded under Article 19 of the Indian Constitution. As choosing the gender is somewhat personal characteristic so it should be taken under Article 19 of the Constitution and stopping an individual from adopting a gender would infringe their principle right under Article 19.
On the above basis, they concluded that transgender personality shown through their behaviour cannot restrict their expressions. The court held that members of the transgender community should be given their identity. The government should treat all the citizens of the country equal without any discrimination. The bench also added that members of the transgender community are also entitled to the principle rights under Article 14, 15, 16, 19, and 21 of the Indian Constitution. They are to be treated as ‘third genders’ for the reason of safeguarding their rights under Part III of the Constitution and the laws enforced by the Parliament. The court also stated that the personal issues faced by transgenders related to education, healthcare facilities should be taken into consideration by both state and centre government. Also, the government should take some steps for the development of transgenders like reservations in the employment sector and educational areas. The bench also suggested the core international human rights treaties and Yogyakarta Principles give identity to the rights of transgender.
Critical analysis of the case
In the present case, National Legal Service Authority V. Union of India and Others, it is considered as a landmark decision as this was the first case to identify the transgender community rights in India. As gender recognition is considered as one of the principal aspects of life which classify the individual into the category of male, female or transgender person. Individual sex is generally allotted during birth, some people are usually born with some genital problem and thus they acquire the gender of both male and female. In simple words, the Constitution of India states that all citizens residing in the country are equal before the law and law should be applied equally among them. So, all the persons, including members belonging to the transgender community should be considered equal as compared to others and laws should also grant some special reliefs to them. Thus,discriminating them or excluding them from any cultural or social event would infringe their fundamental rights, which again goes against the principles of the Indian Constitution.
It is usually seen that transgenders are often given separate treatment in every aspect; they are always excluded from society. All the individual living on the earth are the god’s creation and no one has the right to differentiate in the creation of god. Since, gender identity refers to the individual self-recognition into the category of male, female, or transgender so, the individual should be free in choosing their gender identity, dressing sense, behaviour, freedom of speech and environment. Also, the government authorities on their levels should make provisions to address the problems faced by the transgender community. Gender classification is considered as one of the most personal characteristics, so no individual should be compelled to have medical treatment or any hormonal therapy to change one’s gender as to get the legal recognition in the society.
Allahabad High Court in Queen Empress V. Khairati, (1884) ILR 6 ALL 204
Suresh Kumar Koushal and another Naz Foundation and others, (2014) 1 SCC 1
Corbett V. Corbett, (1970) 2 ALL ER 33
R V. Tan, (1983) QB 1053, 1063, 1064
Attorney General V. Otahuhu Family Court, (1995) 1 NZLR 603