NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

NATIONAL LEGAL SERVICE AUTHORITY V. UNION OF INDIA

CASE ANALYSIS

SUBMITTED TO : RABINDRA PATHAK SUBMITTED BY: VIBHA KUMARI

(ASSOCIATE PROFESSOR ) SEMESTER: IV

LEGAL METHOD SECTION A

2022 ROLL NO. 1145

1
ACKNOWLEDGEMENT
It is of my great privilege to express my gratitude to all those who have contributed in
completion of this case analysis. I Had to take the aid and guidance of some respected persons in
its preparation. Further, my deep gratitude and regards to my subject teacher, PROF.
RABINDRA PATHAK, for the valuable and inspiring guidance. I am also grateful to all those
who have directlyand indirectly guided me for the completion of this case analysis.

I would also like to expand my gratitude to those who gave me great ideas to enhance my work
and gave me inpiration to improve its quality.

2
CASE NAME: NATIONAL LEGAL SERVICE AUTHORITY V. UNION OF
INDIA

Case Name: NALSA V. UNION OF INDIA& Ors

Court: Supreme Court of India

Date: 15 April 2014

Citation: 2014 5 SCC 438

Bench: K.S. Radhakrishnan, A.K. Sikri

Petitioner: National Legal Service Authority

Respondents: Union of India & Ors

INTRODUCTION

On 9 November 1995 under the Legal Service Authority Act 1997, National Service Legal
Authority was formed in India. The main motive of constituting a body like NALSA was to
provide free aid to all the poor, backward, and marginalized sections of the society.

Our society has only given recognition to two genders in the society, namely- the male and the
female gender whereas everyone is aware of the fact that a third gender also constitutes a large
part of our population but no recognition has been given to them. The third gender is commonly
known as the transgender or the TG community.

3
The plight and sufferings of this community cannot be explained in words as they have been
suffering for a long time now. They’re always the victim of abuse and violence because they
don’t fall under the socially accepted gender forms. They’re often treated as untouchables and
mostly face humiliation everywhere. They’re considered a burden and people think that they’re
of no use to society.

In Hindu mythology and religious texts, the presence of Hijras and other transgender
communities can be seen. In Ramayana it has been mentioned that when Lord Ram with Sita and
Laxman was heading towards the forest for 14 years to live there he asked his followers, men,
and women to now leave them and go back to Ayodhya, his followers also included Hijras and
they thought that this order is not for them as they do not belong to the male or female
community. Seeing their devotion, Lord Ram was impressed and he gave them the power to
bless on auspicious occasions like childbirth and marriages. Their presence can also be seen in
Ancient India as several books mention them.

In present times, we have seen cases of them being tortured and maltreated, they also do not
enjoy the same fundamental rights as the other citizens do. Keeping all these things in mind and
to help this community come out from their intense pain and trauma, a Writ Petition No 400 of
2012 was filed by the National Legal Service Authority of India so that the law recognizes them
as the third gender.

Poojaya Mata Nasib Kaur Ji from Women Welfare Society also filed a writ Petition No.604 of
2013 seeking relief for the Kinnar community and Laxmi Narayan Tripathi who is an eminent
TG activist also supported this cause.

FACTS OF THE CASE

The main motive of the petitioners to file the petition was to end the exploitation, abuse, and
harassment faced by the community. To help them have access to basic facilities like medical,
educational, legal, etc.

4
In epics like Ramayana and Mahabharata transgender people like Hijaras and kinnars have been
given utmost respect and admiration. It was after the colonial rule in India that their status
degraded in society.

The petition by NALSA aims to recognize the gender of the transgender community. Laxmi
Narayan Tripathi pleaded before the court to recognize their gender as the third gender so that
they also enjoy the rights and freedom which every other citizen of the country does. It was also
pleaded that when they’re denied as the third gender it deprives them of their legal rights to
choose and practice their sexual orientation.

Gender determination in India is done after the birth of the child and all the other laws governing
adoption, marriage, inheritance, succession, welfare is governed whether you’re a male or
female. Due to the non-recognition of the third gender, they face discrimination throughout their
life. Their Right to live with dignity under Article 21 and equal protection of the law under
article 14 has always been violated.

Thus, the petition was filed by NALSA and other petitioners which was clubbed by the Apex
court, and a landmark judgment was delivered by the supreme court.

ISSUES INVOLVED

Learned senior counsel appearing for the petitioner highlighted the traumatic experiences of the
community and also raised the issue of discrimination faced by the community as they’re treated
as outcasts and untouchables. The council also pointed out that discrimination on the grounds of
gender cannot be done by the State as it violates Articles 14, 16, and 21 of the Indian
Constitution. It was also submitted that transgender community people are the citizens of India
and if their gender identity still remains non- recognized it will be violative of their Fundamental
Rights.

5
Learned counsel Shri T. Srinivasa Murthy pleaded to declare the transgender community as a
Socially and Educationally backward community and all the benefits available to the socially and
educationally backward should be extended to them as well. Article 21 guarantees the right to
live with dignity thus to choose one’s gender identity is essential to living a life with nobility.
Thus, the community people should have the right of choice to whether opt for male, female or
transgender classification.

THE OTHER IMPORTANT ISSUES THAT WERE RAISED WERE:

Whether a person has the right to recognize himself as a male if he’s born as female with male
orientations or vice versa or when a person has undergone surgical procedures to change his/her
sex.

The person of the transgender community who is neither male nor female has the right to be
classified under the Third Gender?

LAWS INVOLVED IN THE CASE

The case of NALSA V. Union of India &Ors involves Domestic as well as international laws and
Conventions. The Domestic laws include:

- Article 14, Article 15& 16, Article 19, and Article 21 of the Indian Constitution.
- Article 14 and the Third gender:

No person shall be denied equality before the law or equal protection of law by the state, this has
been stated in Article 14 of the Indian Constitution. It imposes a positive duty on the state to
bring social & economic changes and ensure equal protection of laws. This article doesn’t
restrict its ambit to just males and females, thus, the transgenders/ hijras fall under this and are
entitled to equal protection by law.

6
ARTICLE 15& 16 AND THE THIRD GENDER:

All kind of gender-based discrimination has been prohibited under Article 15 & 16 of the
Constitution. Any kind of discrimination done on ‘sex’ will account for discrimination on the
ground of gender identity. The word sex used in Article 15 & 16 doesn’t only account to the two
binary genders – males and females but also includes those persons who do not keep themselves
under these two categories.

ARTICLE 19(1)(A) AND THE THIRD GENDER:

The right to freedom of speech and expression has been guaranteed under Article 19(1)(a). This
also includes one’s right to express his self-identified gender which can be expressed through
words, dress, action, behavior, or any other form. A person cannot be restricted in showcasing
his personal choice of dressing.

IN THE CASE OF DOE V. YUNITS ET AL1, THE RIGHT OF A PERSON TO WEAR A

SCHOOL DRESS THAT MATCHES HER GENDER IDENTITY WAS UPHELD BY THE
SUPERIOR COURT OF MASSACHUSETTS.

ARTICLE 21 AND THE THIRD GENDER

Article 21 has been recognized as the heart and soul of the Indian Constitution as it ensures the
Right to life and Personal Liberty. This fundamental right cannot be violated or be taken away by
the State also except the procedure established by law.

One’s right to dignity, right to privacy, right to personal autonomy, etc. has been ensured and
secured under Article 21 of the constitution. Gender identity’s legal recognition is a part of right
to dignity and freedom guaranteed under the constitution. People of the third community have
every right to live their life in a dignified and noble manner.

In the case of Anuj Garg V. Hotel Association of India2, the court held that personal autonomy
includes- negative as well as positive rights. The negative right includes the right of not to be
subjected to interference by others and the positive right includes making decisions regarding
their life, to be able to express themselves, and to choose which activities to take part in.

7
The intrinsic part of personal autonomy and self-expression is the self-determination of gender
and it falls under the ambit of Article 21 of the Constitution.

JUDGEMENT OF THE CASE

It was a division bench and the judgment was given by Justice K.S. Radhakrishnan and Justice
A.K. Sikri. Though the leading judgment was given by Justice Radhakrishnan Justice A.K. Sikri
also opined his view on the case.

The court looked into the judgments that were delivered by the court of foreign countries
namely- Malaysia, Pakistan, New Zealand, and English courts as well.

Firstly, In the case of Corbett V. Corbett3, the English Court had to deal with the gender of a
male to female transsexual in the context of marriage validity. The learned judge demonstrated
his view that the biological sexual constitution of a person is fixed at the time of his birth and
that any operative intervention should be ignored and it cannot be changed by medical or
surgical means.

This principle derived in the Corbett Case by the English Court was not supported by the courts
in other countries like New Zealand, Australia, etc. And was also criticized by medical
professionals.

In the case of Re Kevin4, an Australian case, the court held that for the purpose of marriage to
determine the sex of an individual was no ‘Formulaic Solution’. Matters like a person’s life
experience and self-perception were relevant and needed to be considered.

Looking into these landmark cases the supreme court also delivered a landmark judgment. It was
held that:

The right to self-determination has been provided by Article 21 and thus the gender to which a
person belongs has to be decided by the person concerned. The court said that gender identity is
an integral part of a person’s individual dignity and is the key to ‘personal autonomy’ and ‘self-
determination.’ Therefore, Hijras/ Eunuchs have to be considered as the Third Gender, over and
above the binary genders under Constitution and law.

8
The court rejected the ‘Biological Test’ and adopted the ‘Psychological Test’ for the
determination of gender and sex of a person. Article 14, 15, 16, 19, and 21 will not exclude
Hijaras from its ambit.

The expression used in Article 14 is ‘person’, in Article 15 & 16 has used the words like ‘sex’
and ‘citizen’, and Article 21 mentions ‘person’. The court upheld that all these expressions will
not just stick to the two binary genders but will also cover in it the Transgender community and
various directions were laid down by the court to safeguard the interest of the trans people.
Justice A.K. Sikri completely agreed with the decision of Justice K.S. Radhakrishnan and gave
his views on the case, he remarked that equality in International Human Rights law is based upon
two principles namely- non-discrimination and reasonable differentiation. He explained that
when common public facilities are outside the reach of the Transgender Community it leads to
denial of rights. In a nutshell, it means embracing the belief in positive rights and reasonable
accommodation.

The SC also directed the Centre and the State to:

- Legally recognize the third gender as it has recognized the male and female gender.
- To take effective steps and treat them as socially and educationally backward and provide
them with benefits
- To establish and operate different HIV surveillance centers for trans people as they face
several sexual issues.
- To take measures and construct public toilets for the transgender community and provide
them with medical care.
- To frame such schemes which help them to come out of their age back sufferings.
- To create public awareness so that trans people also consider themselves as a part of this
society.
- Help them regain their respect and status in the society which they once enjoyed in India.

9
 CONCLUSION

On 15 April 2014, a landmark judgment was delivered by the Supreme Court of India in the case
of NALSA V. Union of India & Ors. This decision changed the lives of all those people who fall
under the Transgender community as the law gave them the status of ‘Third Gender’ in society.
The judgment came like a ray of hope for this community as they have been suffering for a long
time now. This judgment sought to improve the living condition of these people; it finally gave
them the legal status of ‘third gender’ in society. They can now enjoy each and every right which
all the other citizens of India can.

It is still a long run for this community as we still see them suffering and being victims of abuse
and harassment all over. But this judgment has somehow helped them to come out of all this and
live a dignified life.

REFERENCES: -

1) (2008) 3 SCC 1
2) (1970) 2 All ER 33
3) (2001) Famca 1074
4) https://indiankanoon.org/doc/

10