BY: Divyapratap & Prachi Atul Tandon
Procedural Background of the case
Name Of The Court, Judges And The Parties
|Supreme Court (BEFORE HON’BLE MR. JUSTICE K.S. RADHAKRISHNAN AND MR. JUSTICE A. K. SIKRI)|
|Supreme court (BEFORE HON’BLE MR. JUSTICE K.S. RADHAKRISHNAN AND MR. JUSTICE DIPAK MISHRA)|
Name Of The Parties
NATIONAL LEGAL SERVICES AUTHORITY ……………………. PETITIONER
UNION OF INDIA ………………………………………….………. RESPONDENT
About The Parties
- The writ petition (No. 400 of 2012) was filed by the National Legal Services Authority of India (NALSA), a premier legal authority established under the Legal Service Authority Act,1997 that seeks to bring public issues to the forefront and provide pro-bono legal aid to the vulnerable.
- Another similar writ petition (No. 604 of 2013) has also been preferred by a registered association named Poojaya Mata Nasib Kaur Ji Women Welfare Society with an aim to seek similar reliefs for the Kinnar (Transgender) Community.
- Laxmi Narayan Tripathy, who considers identifies herselfas a Hijra,also got impleaded with aim ofvocalizing the cause of the members of the transgender community and share life experiences to accentuate the need to provide recognition to the transgender persons’ identity as the ‘third gender’.
- Union of India as established by due process of law enunciated in the Constitution of India and was presented by the Additional Solicitor General of India.
Facts of The Case
- ‘Transgender’ is an umbrella term used to denote Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis, etc. who may/may not conform their identities to the binary notions of sex as a male/female. Due to non-recognition, they have to bear the brunt of large-scale abuse, violence and ostracization which is violative of their fundamental rights provided by the constitution especially article 14 and 21.
- This non- recognition based on gender identity and sexual identity has led to discrimination in privileges and opportunities enjoyed by other individuals of the Indian society such as denial/trouble in accessingpublic places like malls, parks, toilets, parks and opportunities like admission in educational institute, hospitals, government offices.
- The laws both national and international that must be taken into account to address the issues of the community were highlighted. they are as follows:
Constitution of India:
- Article 14
- Article 15
- Article 16
- Article 19
- Article 21
- UDHR- Universal Declaration of Human Rights – Article
- Yogyakarta Principles (enshrined for Universal LGBTQ Community )- Principles 1 stating human rights to be enjoyed globally, 2 stating right to equality and nondiscrimination, 3 stating right to get recognized by law , 6 stating right to privacy, 4 stating right to life, 9 stating right to humane treatment during detention, 18 stating right for protection from medical abuse.
- CEDAW- Convention on the Elimination of All Forms of Discrimination against Women- Articles 11 prohibiting discrimination in employments and article 24 asserting the commitment of state parties.
- European Convention on Human Rights namely ‘Convention for Protection of Human Rights and Fundamental Freedoms’- Article 8 stating right to have respect in private matters and 14 stating right to non-discrimination.
- Vienna Convention on the Law of Treaties – mainly article 31 and 32 stating interpretation of various international conventions
- ICCPCR- International Covenant on Civil and Political Rights
As enunciated in the scriptures:
- The history dates back to the Ramayana era wherein lord ram had blessed transgender’s with powers for bringing auspiciousness with their blessings in marriage and childbirth for their utter devotion in waiting at the banks of a river for Ram, Sita and Laxman’s return after they served the exile of 14 years.
- The Hijra Community has a mention in the book ‘Kama Sutra’, a book written somewhere in 200-400 CE on sexual behavior.
- In various Puranic scriptures, they have been termed as ‘tritiyaprakriti’ that denotes third gender and ‘napunsaka’ to denote to show lack of procreative ability in a man.
- In Mahabharata, Aravan son of Arjun and Nagakanya offers himself to be sacrificed to Goddess Kali so that the Pandavas can win the war. But it was in one condition that Aravan has to spend the last day of his life in matrimony. Unfortunately, Aravan could not find any woman who would agree to marry him as no woman wanted to marry a man who is going to die in the next day after marriage. Lord Krishna distressed by seeing this converts himself in the form of a woman called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan their ancestor and call themselves Aravanis.
- Hijras also held important positions in courts and posts in administration during the Mughal era in India from the 16th to the 19th century. They had religious authority and gave blessings in religious ceremonies.
- A detailed analysis of the historical background of Hijras in Mughal era is there in the book of Gayatri Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” – Yoda Press (2006).
- 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 by passing the Criminal Tribes Act which viewed them in a negative light.
- 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.
- IF RECOGNITION AS EITHER OF THE BINARY GENDERS CONFIRMING TO MALE OR FEMALE UNDER INDIAN LAW VIOLATES OR LIMITS THE RIGHT OF COMMUNITIES SUCH AS HIJRAS/EUNUCHS, WHO’S GENDER CAN’T BE IDENTIFIED AS MALE OR FEMALE.
- WHETHER TRANSGENDERS HAVE FREEDOM AS TO CHOOSE THEIR GENDER.
- WHETHER SUCH PERSONS CAN BE DECLARED AS SOCIALLY & EDUCATIONALLY BACKWARD CLASS AND RECEIVE THE BENEFITS SUCH AS THOSE EXTENDED TO MALE AND FEMALE GENDERS.
- WHETHER THE STATE SHOULD MAKE LEGISLATIONS TO PROTECT THE RIGHTS OF TRANSGENDERS.
Issues Raised By The Petitioner-
- That the recognition of only binary genders (male & female) under Indian law contradict the rights such as right to equality, right to a dignified life, non-discrimination and freedom of expression provided as fundamental rights in the constitution of India.
- That this non recognition of such community lead to lack in catering the needs of the represented group such as education, health service, government schemes and livelihood.
- That Transgenders should have option to choose their sex in order to determine their identity to gain access to all the rights and privileges that are offered to citizens of India.
- That transgenders should be recognised as socially and educationally backword and hence should get proper benefits available for such people.
- Petitioner also submitted that she also had faced discrimination not only by other people but also states has treated them as criminals.
Issue raised by the Respondent–
- That the states have taken specific measures to improve the condition of transgenders Expert committees have been set by both stats and union territories as a part of the process.
Division bench of Justice K.S. Radhakrishnan and Justice A. K. Sikridelivered the final judgement in which majority opinion was delivered by K.S. Radhakrishnanand the Justice A.K. Sikri gave his own share of arguments to further strengthen the reasoning of judgement.
Upholding the ideals of justice, equality ad fraternity in the constitution off our democratic country, the apex court passed the judgment in the interest of the petitioners aiming at the welfare of the community that has subjected to years of oppression and humiliation.
With regard to issue 1:
According to the apex court, if transgenders are coaxed to accept the binary notions of gender that are socially accepted, then it is a grave act of injustice and violation of their fundamental rights. Their biological anatomy coupled with their psychological perception may/may not differ from the sex they were assigned at the time of their birth. In cases of discrepancies, it leads to public ostracization an harassment merely on the ground of expressing oneself as per their identification of self. For the sake of removing any biases, the court explains why this expression of oneself is imperative even when the society largely disapproves of it. It iterates the distinction between three commonly misunderstood terms – sex, gender identity and sexual orientation. Sex has been restricted to the binary genders of society which is currently incapable of accounting for people who do not identity with these identities. Gender identity is much of a psychological perception of “self’ which dictates the way one leads his life. For instance: a person may be born as a male but relates his identity to a female. In such circumstances, the fundamental right that is imparted to all for freely expressing themselves stands nullified as per article 19 read with article 14. The right to equality without nay discrimination has to reflect in the conduct of the society, individuals and lawmakers.
With regard to Issue 2:
According to the apex court, the right to self-identification must be granted to transgender persons for allowing them to enjoy their existing fundamental rights bestowed upon them by the law of the land especially article- 14,15,16,19 and 21. The bench opined that this self-identification is outmost importance in an individual’s life as it not only alters the course of their lives but also affects their development. This right will give them much needed recognition of their identity and status and they will be able to break the shackles of binary genders. The right to identify as a man/woman/transgender is an intrinsic part of a dignified life that can be lived without any reservations. This dignified life covered within the ambit of the extinguishable right of personal life and liberty under article 21 is essential for the survival of any human and the fact that this article refers to the term ‘ person’ to achieve its purpose, is a testament to the fact that no discrimination based on sex is feasible.
With regard to issue 3:
According to the apex court, the long-standing history of discrimination, humiliation and harassment faced by people belonging to the transgender committee has to be taken into account while reinstating their available rights. They have been considerably marginalized and ostracized by the community which has lead to hindrances in accessing opportunities available to public at large such as education, health services, government schemes and livelihood which are a part and parcel of article 15 and 16. As a remedy, it proposes the solution for the same by directing the states to observe the same procedure as has been followed for other marginalized groups like SC, ST, OBCs who have a similar history. The bench is of the opinion that the transgender community must be treated as a ‘socially and economically backward class’ for the purpose of providing them reservation in public appointment and admission in educational institutes.
With regard to issue 4:
According to the apex court, the state assuming the nature of ‘parents patriae’ and ‘welfare state’ has the obligation to look after the needs and grievances of the transgender community. The court issued guidelines to aid the state in this respect by pointing out probable solutions that must be implemented for betterment of the community. These guidelines encompassed various aspects of social and economic reforms that were to be carried out. The supreme court also ordered the expert committee formed by the government to resolve such issues to take into consideration the recommendations of the bench and implement the same within six months.
Justice K. S. Radhakrishnan-
The abuses to transgender community in face public places is not good they are being treated as untouchables non recognition of their Identity violate their fundamental rights.
It was aided that even Vedic and purana texts in Sanskrit includes term “napusansaka” used to denote procreative capability.
No one shall be forced to change the sex by SRS as gender Identity is basic aspect of determination of oneself.
Article 16 (ICCPR, 1966) evry one should be protected by law and has right to live, privacy is right under article 17 of same. Reference to mani internation conventions and caselaws were cited to support the decision of saveguarding the rights of transgender.
YOGYAKARTA Principles were refered to support the right to life and dignity, Article 1 part 2 talks about non discrimination on basis of sexual orientation relavant to present case, takin note of which states shal repeal provisions efecting lives of transgenders negatively. All the rights under this principle are in refrence to all people including the transgenders.
Justice A.K. Sikri-
Not giving the transgenders status of third gender would result in depriving them from many of there valuable rights. Also regarding the physical and psychological behaviours he added various countries have made legislations based on reassigned sex after Sex Re-Assignment Surgery (SRS). According to him right to choose is inseparable part of human rights.
And these moral rights are neither granted to people nor can be taken away.Discrimination is faced because of denial of equal opportunities.He talked about the such persons carrying dual entity that they may first try to undergo hormone therapy to get the gender they believe to be, may need physiatrist to be clear in their thoughts.
And human right approach should be taken towards transgender for changing the stigma attached to transgenders.Transgender is not a disease it is normal.There seems no reason to deny their rights.
Critical Analysis of The Judgement
The judgment indeed came as a hope for the transgender community of India however certain shortcomings in the judgment might lead to the distortion of the intent and purpose it was written with which leads to failure in providing permanent solutions to the issue. Some of these flaws have been highlighted in analysis by various commentators on platforms like Ipleaders, orinam,etc. they are enlisted below:
- The use of word ‘third gender’ is vague as it denotes a very broad category of people with different gender identities coupled into one single term.
- The judgment might lead to unintended promotion of increase in psychological tests for self-identification as though there are no basic parameters to guide this test unlike medical tests.
- The issue of indulging into sexual intercourse was also not deliberated upon adequately as the court regards it within the ambit of sexual orientation which was not among the issues raised in the petition.
- Yogyakarta principlesYOGYAKARTA Principles weren’t much delved into. Had they been looked after, the issues of marriage, adoption and other personal rights would have been better addressed.
- Systematic oppression and harassment still go unchecked as no directions are issued to such practices despite the assertion in the petition regarding unjust treatment by police. This will still be a major factor for underreported cases for offences against transgenders.
- The reservation provided to them must be based on certain parameters so as to prevent misuse (such as fake identity to avail advantage).
- Judgement lakes in addressing some non-traditional terms used for transgender communities such as babu, bhaiya ,kotha, FTM, FTK, genderqueer etc.
- Expert committee owned by the MSJE failed to imbibe other perspectives than traditional transfeminine communities.
- Nothing could have activated dysphoria more than the way of these portrayals. In the following the conceding of the third sex class, what is lost to us all right now is the profound situated transphobia of what is in any case being hailed as a triumph. In the event that a “genital life structures issue” is the thing that sets up transgender people as not the same as male and female, at that point this judgment has neglected to challenge the very basic thoughts of sexual orientation.
- MSJE asked for time limit of 6 months should be extended unfortunately the never got reply from the supreme court.
This judgment can be as the first step towards providing legal as well as social recognition to transgenders in India by upholding their fundamental rights as provided in the Constitution. The guidelines issued by the bench to central and State governments to take proactive actions for securing transgender persons’ rights. The judgement sure covered most part but lacks on some despite that, the judgement can be termed as a victory for transgenders as it not only recognizes but also tries to remedy the issues of legality of third gender identity and legal recognition for those undergoing SRS. In terms of the latter, it terms ‘coercing individuals to go through SRS (Sex Reassignment Surgery)is violative of their rights thus illegal’ by laying emphasis on ‘psychological test’ rather than ‘biological test’ to determine gender identity. The guidelines based on socio-economic status and rights, awareness to remove stigma attached and access to public health and sanitation services address a major chunk of the issues faced by the community that is seen as a ‘taboo’ by many.
(International convenent on civil and Political Rights, 1966)