National Legal Services Authority v. Union of India

National Legal Services Authority v. Union of India is a landmark decision by the Supreme Court of India, which declared transgender people the 'third gender', affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.

National Legal Services Authority v. Union of India
CourtSupreme Court of India
Decided15 April 2014
Citation(s)WP (Civil) No 400 of 2012
Court membership
Judges sittingK. S. Radhakrishnan
A. K. Sikri
Keywords
Constitution of India

This judgement has been distinguished as a major step towards gender equality in India.[1][2][3][4] Moreover, the court also held that because transgenders were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.

Parties

The National Legal Services Authority of India (NALSA) was the primary petitioner. It had been constituted with the primary objective of providing free legal aid services to the disadvantaged sections of Indian society.[5] The other petitioners in the matter were the Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathy, a renowned Hijra activist.[6]

Bench

The case was heard before a two-judge bench of the Supreme Court, composed of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri.[7] Justice Radhakrishnan had functioned as a Standing Counsel for a number of educational and social organizations and held appointments in the High Courts of Kerala, Jammu and Kashmir and Gujarat before his elevation to the Supreme Court.[8] Justice Sikri began legal practice in Delhi, specializing in Constitutional cases, Labour and Service matters, and Arbitration matters. Prior to his elevation to the Supreme Court, he held appointments in the Delhi High Court and Punjab and Haryana High Court.[9]

Judgment

The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender:

  • Legal Recognition for Third Gender: In recognizing the third gender category, the Court recognized that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc. is discriminatory to the transgender.
  • Legal Recognition for Persons transitioning within male/female binary: As for how the actual procedure of recognition will happen, the Court merely states that they prefer to follow the psyche of the person and use the "Psychological Test' as opposed to the 'Biological Test.' They also declare that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one's gender is illegal.
  • Public Health and Sanitation: Centre and State Governments have been directed to take proper measures to provide medical care to transgenders in hospitals and provide them separate public toilets and other facilities. Further, they have been directed to operate separate HIV/Sero-surveillance measures for transgenders.
  • Socio-Economic Rights: Centre and State Governments have been asked to provide the community various social welfare schemes and to treat the community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments.
  • Stigma and Public Awareness: These are the broadest directions - Centre and State Governments were asked to take steps to create public awareness to better help incorporate transgenders into society and end treatment as untouchables; take measures to regain their respect and place in society; and seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma.

The Court notes that these declarations are to be read in light of the Ministry of Social Justice and Empowerment Expert Committee Report on issues relating to transgenders.[10]

References
  1. "India recognises transgender people as third gender". The Guardian. 15 April 2014. Retrieved 15 April 2014.
  2. McCoy, Terrence (15 April 2014). "India now recognizes transgender citizens as 'third gender'". Washington Post. Retrieved 15 April 2014.
  3. "Supreme Court recognizes transgenders as 'third gender'". Times of India. 15 April 2014. Retrieved 15 April 2014.
  4. Mark E. Wojcik, Male. Female. Other. India Requires Legal Recognition of a Third Gender, 43:4 International Law News 1 (2014)(American Bar Association Section of International Law).
  5. http://nalsa.gov.in/
  6. "Archived copy" (PDF). Archived from the original (PDF) on 27 May 2014. Retrieved 11 July 2014.CS1 maint: archived copy as title (link)
  7. "Archived copy" (PDF). Archived from the original (PDF) on 27 May 2014. Retrieved 11 July 2014.CS1 maint: archived copy as title (link)
  8. "Archived copy". Archived from the original on 26 July 2014. Retrieved 26 July 2014.CS1 maint: archived copy as title (link)
  9. http://supremecourtofindia.nic.in/judges/rcji/13smsikri.htm
  10. "Report of the Expert Committee on the Issues relating to Transgender Persons". Ministry of Social Justice and Empowerment, Government of India. Retrieved 21 July 2014.
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