DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2020-2021

BASIC OF CASE LAW

PROJECT: - “CASE BRIEFING”

“NATIONAL LEGAL SERVICE AUTHORITY vs UNION OF INDIA & ORS.”

Submitted to: - Submitted by: -

DR. K. A. PANDEY Ashutosh Yadav
& 200101045
Mrs. ANKITA YADAV Sec-A
(Basic of Case Law) Batch of 2025

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organisation. I would like to extend my sincere
thanks to all of them. I am highly indebted to professor for basic of case law that is Dr. K.A.
Pandey Sir and Mrs. Ankita Yadav ma’am, for their guidance and supervision as well as for
providing necessary information regarding the project, also for their support in completing
the project.
I would like to extend my gratitude towards my senior of my course, who constantly helped
me first the best sources for research. Finally, I acknowledge the authorities as well as the
care-taker of Dr. Madhu Limaye Library, who provided me with the means to make this
project in the form of online sources.
This project is a result of my efforts combined with all the means and environment that has
been provided to me by Dr. Ram Manohar Lohiya National Law University, Lucknow and its
authorities and I am thankful to them.

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 TABLE OF CONTENTS

 INTRODUCTION…………………………………………………….04

 PARTIES OF THE CASE……………………………………………...05

 FACTS OF THE CASE…………………………………………………06

 ISSUE …………………………………………………………………07

 ARGUMENTS IN THE CASE……………………………………….08

 FOREGIN JUDGEMENT TAKEN INTO CONSIDERATION………10

 JUDGEMENT…………………………………………………………11

 CRTICAL ANALYSIS OF JUDGEMENT…………………………12.

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 INTRODUCTION

 National Legal Services Authority of India vs Union of India is one of the landmark
judgements in the Indian legal history. It was decided on the date of 15th April, 2014
by a division bench comprising of Justice K.S. Radhakrishnan and Justice A.K.
Sikri.

 This judgement is was delivered to alleviate the problems faced by the transgender
community who were fighting to recognise it as a third gender. And their non-
recognition led to the violation of Article 14, 15, 16 and Article 21.

 Transgender Community comprises of Hijras, Eunuchs, Khothis, Aravanis,

Joggapas, Shiv Shakthis etc. and they have faced a lot of abuse and were treated as
untouchable due to their gender. This case was filed to change the mentality of the
society and give legal recognition to the community as a third gender, and all the
rights guaranteed to them by the Constitution of India.

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 PARTIES OF THE CASE

PETITIONER SIDE

 NATIONAL LEGAL SERVICES AUTHORITY OF INDIA

(PRIMARY PETITIONER)

It is body that was formed under the Legal Services Authority Act 1987, for the
purpose of providing free legal aid services to the eligible candidates and also to
organise the Lok Adalat for the speedy resolution of the cases. They filed a writ
petition No. 400 of 2012

 Poojaya Mata Nasib Kaur Ji Women Welfare Society

It is a registered society and NGO that works for the welfare of transgender people.
In the year 2013 she also filed a writ petition No. 604 of 2013.

 Laxmi Narayan Tripathi

She is a transgender and also a transgender rights activist. She was also
impleaded so as to put across effectively the cause of the member of the Transgender
Community and her (Laxmi) life experiences too. She pleaded that non-recognition of
Transgender as the third gender not only subjects them to various types of
discrimination but also denies them equality before law and equal protection under
law which has been provided by the Article 14 and right to life which has been
guaranteed under Article 21.

VS

RESPONDENT SIDE

 UNION OF INDIA

Union of India was the only defendant in the case.

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 FACTS OF THE CASE

Given below are the various facts of the case: -

 The transgender community is subjected to lot of humiliation and discrimination in

the present times. They were looked upon with disgrace and were often discriminated
from the public places. They were also not provided the educational, medical and
other types of services.

 All the acts of discrimination and segregation were violation of the various rights that
were guaranteed to them by the Constitution of India. They were also violating
various International Conventions and treaties to which India was signatory.

 By virtue of the same laws, governing marriage, adaptation, inheritance, succession,

taxation and welfare were all governed by weather you were a male or female. The
intriguing fact is that “gender recognition” is done at the time of birth only and due
to this there was always a lack of statutes and laws that would prevent the rights of a
transgender person.

 The Transgender Community as a whole were facing many problems due to the fact
that there was no legal recognition of the as the “third gender” and neither they were
provided reservations nor any steps were taken by the governments to uplift them and
become successful in their life.

 All this eventually led to filing of a “public interest litigation” by the NALSA and
then by the other petitioners as well.

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 ISSUES

As it is clear that “gender identity” was the core issue in the petition filed by the petitioner,
though it was divided into two parts: -

o Whether a person who is born as a male with predominantly female orientation (or
vice versa), has a right to get himself to be recognized as a female as per his
choice more so, when such a person after having undergone operational
procedure, changes his/her sex as well?

o Whether transgender (TG), who are neither males nor females, have a right to
be identified and categorized as a “third gender”?

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 ARGUMENTS
PETITIONER’S ARGUMENTS

The Petitioner was joined by several intervener and they argued before the honourable court
that only the binary law was recognised under the Indian Law and legal system and there was
a lack to provide the same for the transgenders. They also argued that various rights and
article that were being violated which are explained below: -

 Article 14: - Under Article 14, it is defined that “the State shall not deny any
person equality before law or the equal protection of laws within the territory of
India”. As the Article promises an equal protection which brings the State under the
obligation to provide the equal protection by bringing whatever changes required.
And the application of the word “person” in the article is not limited only to male and
females, transgender which are neither male nor female are also included in it.
Therefore, discrimination on the basis of “sexual orientations or gender identity” is
the violation of the Article 14.

 Article 15 and 16: - Under Article 15 and 16 it is provided that “prohibition of

discrimination on the grounds of religion, race, cast, sex and place of birth” and
“equality of opportunity in matter of public employment”. Both the article
prohibits any kind of “gender-discrimination”. The word “sex” used in the articles is
not limited to male and female but also to the person which do not consider them
either male and female.

 Article 21: - Article 21 of the constitution of India provides that “protection of life
and personal liberty- no person shall be deprived of his life and personal liberty
except according to the procedure established by the law”. Article 21 is the heart
and soul of the constitution. As Right to Life inculcate right to live with dignity
which was also affirmed by the Supreme Court in Smt. Maneka Gandhi vs Union of
India1 and gender is an integral part of one’s identity and dignity ion the society and
the way the people from the Transgender Community were treated was a truly
violation of their Article 21.

1
Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597

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Various International Laws and conventions that were infringed according to the petitioner
were: -

 International Covenant on Civil and Political Right: - Under this Article 6, which
guarantees right to life and Article 7 which prohibits torture, inhumane or
degrading treatment. Another article that was bring into the consideration was the
Article 16 it provides recognition before the law.

 Universal Declaration of Human Rights: - Article 6 of the UNHR which provides

right to life was also presented as an argument before the Court.

 Yogyakarta Principles: - Under Yogyakarta Principles various principles were also

cited by the petitioner that were being infringed. Principles 1 (universal enjoyment
of human rights), 2 (rights to equality and non-discrimination), 3 (right to
recognition before the law), 6 (right to privacy), 4 (right to life), 9 (right to
treatment with humanity while in detention), 6 (right to privacy), 18 (protection
from medical abuses).

 Convention on the Elimination of All Forms of Discrimination against Women: -

The article which were brought into consideration of the Court were Articles 11
discrimination in employment and Article 24 commitment of State parties.

These were some of arguments that were presented from the side of the petitioner. Also
giving recognition to it as a third gender would also help living a respectful and dignified life.

RESPONDENT’S ARGUMENTS

The respondents, on the other hand, argued that the state had set up an “Expert Committee on
Issues Relating to Transgender” which is considering all kinds of opinions to help
transgender individuals live a more prosperous and dignified life. They also contended that
the Committee will also consider the views of the petitioners so that a more robust policy is
framed in this respect. Several states and union territories argued that they have taken a
significant number of steps for the betterment of the lives of the transgender community.

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 Foreign Judgement in Consideration
Supreme Court took cognisance of various foreign judgement and legislation into its
consideration before delivering their judgement. Some of them are: -

Corbett vs Corbett2:- It is a judgement that was passed by the English Court, where
the matter was in context of the constitutional validity of a marriage between a
male and female transsexual. In this case the Court observed that the law should
adopt the chromosomal, gonadal and genital tests and if all three are congruent,
that should determine a person’s sex for the purpose of marriage. Judges also
expressed their personal views that the biological sexual constitution of an individual
is fixed at birth, at the latest, and cannot be changed either by the natural development
of organs of the opposite sex or by medical or surgical means. This view of the Court
was criticised by various countries across the world like New Zealand, Australia
etc.

Attorney-General v. Otahuhu Family Court3:- In this case the court of New

Zealand observed that once a transsexual person has undergone surgery, he or she
is no longer able to operate in his or her original sex.

Christine Goodwin v. United Kingdom: - (Application No.28957/95 - Judgment

dated 11th July, 2002), the European Court of Human Rights examined an application
alleging violation of Articles 8, 12, 13 and 14 of the Convention for Protection of
Human Rights and Fundamental Freedoms, 1997 in respect of the legal status of
transsexuals in UK and particularly their treatment in the sphere of employment,
social security, pensions and marriage.

2
Corbett v. Corbett, (1970) 2 All ER 33
3
Attorney-General v. Otahuhu Family Court, (1995) 1 NZLR 603

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 JUDGEMENT OF THE COURT

It was a divisional bench. The judgment was given by Justice K.S. Radhakrishnan and Justice
A.K Sikri. However, Justice A.K Sikri gave a separate opinion with some additional
comments. The Court held that transgender’s falls within the purview of the Indian
Constitution and therefore should enjoy all the rights of the Constitution .

The Hon’ble court also found that the petitioner has faced various serious
discrimination throughout her life because of her gender identity. The court has referred
exhaustively to the various judicial pronouncements and legislations on the international
arena to highlight the fact that the recognition of “sex identity gender” of persons, and
“guarantee to equality and non- discrimination” on the ground of gender identity or
expression is increasing and gaining in international law and, therefore, be applied in India as
well.

The honourable court also issued some guidelines for the State Government as well for the
Central Government to be followed that are: -

1. Hijras, Eunuchs, apart from binary gender, must be treated as “third gender”.
2. Transgender persons’ right to decide their self-identified gender is also upheld.
3. Grant legal recognition of their gender identity such as male, female or as third
gender.
4. Take steps to treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission in educational
institutions and for public appointments.
5. Operate separate HIV Sero-Survellance Centres since Hijras/ Transgenders face
several sexual health issues.
6. Seriously address the problems being faced by Hijras/Transgenders such as fear,
shame, gender dysphoria, social pressure, depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and
illegal.
7. Take proper measures to provide medical care to TGs in the hospitals and also
provide them separate public toilets and other facilities.
8. Take steps for framing various social welfare schemes for their betterment.

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 9. Take steps to create public awareness so that TGs will feel that they are also part
and parcel of the social life and be not treated as untouchables.
10. Take measures to regain their respect and place in the society which once they
enjoyed in our cultural and social life.

CRTICICAL ANALYSIS OF JUDGEMENT

I. Well, we tend to cannot ignore the very fact that the TG community for long have
suffered and more experienced torture, humiliation, and pain. They unbroken quiet
and suffered however finally through this judgment the condition of the transgender
community has improved. This judgment has created an effect not solely in Indian
nation however throughout the globe. The exclusion of the TG community from
participation within the society may be a major human offer. Indian nation follows
democracy and democracy includes everybody regardless of their deformation,
condition, etc. everybody ought to be treated equally and will get equal protection of
law if we tend to glide by the third conditions of Rule of Law which has equality.

II. However, there are flaws in the judgment as well. Transgender is an umbrella
term for people whose gender identity is different from the gender given to them
at birth, and in the case of India, there are a variety of identities, such as Kothi,
Transman, etc. is not clearly outlined in the judgment.

III. The Yogyakarta Principles was not accepted in its true spirit and letter. The issue
of sexual intercourse too wasn’t looked deep into. The need for separate detention
facilities was not taken into consideration. It also doesn’t check on the atrocities by the
Transgender community by the police who do not listen and solve the grievances of the
TG community. Thus, the judgment does not look into the long term and extensive
solution to the problems faced by the transgender community.

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