DR RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

BASICS OF CASE LAW

NATIONAL LEGAL SERVICES

AUTHORITY
VS
UNION OF INDIA

SUBMITTED TO: SUBMITTED BY:

Dr Kumar Askand Pandey Syed Yasir Mahmood
Associate Professor (Law) Enrollment No. 210101152
Dr Ram Manohar Lohiya 1st Semester section „B‟
National Law University
 ACKNOWLEDGEMNT
I would like to take this opportunity to extend a word of my gratitude to esteemed
„Basics of Case Law‟ teacher Dr KUMAR ASKAND PANDEY who has been a
constant source of inspiration for me in the pursuance of this project. He has been
gracious enough to guide me on the right path which has enabled me to strengthen
my efforts pertaining to the comprehensive research and efforts put into the making
of this project.

I would also wish the reader of my project a knowledgeable experience. The

project has been researched meticulously and has been materialized whilst
making sure that the utmost level of care and finesse is undertaken so as to see
that the information mentioned is concurrent with the highest benchmarks of
accuracy, precision and perfection.

1
 DECLARATION
I hereby declare that this project report submitted by me to Dr Ram Manohar
Lohiya National Law University, Lucknow in partial fulfilment of requirement for
the award of degree of BALLB(Hons) is a record of bona fide project Work carried
out by me under the guidance of professor Dr Kumar Askand Pandey.

I further declare that the project reported in this project has not been submitted
and will not be submitted either in part or in full for the award of any degree or
diploma in this Institute or any other Institute or any University.

SYED YASIR

MAHMOOD

210101152

2
Contents

ABOUT JUDGEMENT........................................................................................4

Ratio Decidendi....................................................................................................4

Facts......................................................................................................................5

Point of law involved............................................................................................6

Issues Raised.........................................................................................................9

Arguements.........................................................................................................10

Decision of the Supreme Court...........................................................................11

Analysis..............................................................................................................12

3
 NATIONAL LEGAL SERVICES AUTHORITY (Petitioner)
Versus
UNION OF INDIA & ORS. (Respondents)

ABOUT JUDGEMENT

DECIDED ON: April 15, 2014

BENCH STRENGTH: 2 Judge (Unanimous Judgment)
CITATION: (2014) 5 SCC 438
RATIO Hon‟ble Justice K. S. Panicker Radhakrishnan & Justice A. K. Sikri
AUTHOR OF THE JUDGEMENT Justice A.K. Sikri
AREA OF LAW Constitutional Law

Ratio Decidendi
Upholding the ideals of justice, equality, and fraternity enshrined in our democratic country's
constitution, the apex court issued a ruling in favour of the petitioners, aiming to benefit a
community that has been subjected to years of oppression and humiliation by recognizing the
transgender community as the third gender, because coaxing transgenders to accept the socially
accepted binary notions of gender is a grave act of injustice and a violation of their fundamental
rights.

4
 Facts
Transgender is generally described as an umbrella term for persons whose gender identity,
gender expression or behavior does not conform to their biological sex. TG may also takes in
persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs
who, in this writ petition, describe themselves as “third gender” and they do not identify as
either male or female.
That the Applicant has born as a male. Growing up as a child, she felt different from the
boys of her age and was feminine in her ways. Because of her femininity, from an early age, she
faced repeated sexual harassment, molestation, and sexual abuse, both within and outside the
family. Due to her being different, she was isolated and had no one to talk to or express her
feelings while she was coming to terms with her identity. She was constantly abused by everyone
as a „chakka‟ and „hijra‟. Though she felt that there was no place for her in society, she did not
succumb to the prejudice. She started to dress and appear in public in women‟s clothing in her late
teens but she did not identify as a woman. Later, she joined the Hijra community in Mumbai as she
identified with the other hijras and for the first time in her life, she felt at home.
That being a hijra, the Applicant has faced serious discrimination throughout her life because of
her gender identity. It has been clear to the Applicant that the complete non-recognition of the
identity of hijras/transgender persons by the State has resulted in the violation of most of the
fundamental rights guaranteed to them under the Constitution of India”

Therefore this case is concerned with the grievances of the members of Transgender
Community (for short „TG community‟) who seek a legal declaration of their gender
identity than the one assigned to them, male or female, at the time of birth and their prayer
is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution
of India.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 accessing public places like malls, parks, toilets, parks and
opportunities like admission in educational institute, hospitals, government offices.
Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal
and constitutional protection.

5
Point of law involved

1. Article 14 of the Constitution of India states that the State shall not deny to “any
person” equality before the law or the equal protection of the laws within the territory
of India. Equality includes the full and equal enjoyment of all rights and freedom.
Right to equality has been declared as the basic feature of the Constitution and
treatment of equals as unequals or unequals as equals will be violative of the basic
structure of the Constitution. Article 14 of the Constitution also ensures equal
protection and hence a positive obligation on the State to ensure equal protection of
laws by bringing in necessary social and economic changes, so that everyone including
TGs may enjoy equal protection of laws and nobody is denied such protection. Article
14 does not restrict the word „person‟ and its application only to male or female.
Hijras/transgender persons who are neither male/female fall within the expression
„person‟ and, hence, entitled to legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as equal civil and citizenship
rights, as enjoyed by any other citizen of this country.
2. Articles 15 and 16 sought to prohibit discrimination based on sex, recognizing that
sex discrimination is a historical fact and needs to be addressed. Constitution makers,
it can be gathered, gave emphasis to the fundamental right against sex discrimination
so as to prevent the direct or indirect attitude to treat people differently, for the reason
of not being in conformity with stereotypical generalizations of binary genders. Both
gender and biological attributes constitute distinct components of sex. Biological
characteristics, of course, include genitals, chromosomes and secondary sexual
features, but gender attributes include oneself image, the deep psychological or
emotional sense of sexual identity and character. The discrimination on the ground of
„sex‟ under Articles 15 and 16, therefore, includes discrimination on the ground of
gender identity. The expression „sex‟ used in Articles 15 and 16 is not just limited to
biological sex of male or female, but intended to include people who consider
themselves to be neither male or female.
3. Article 19(1) of the Constitution guarantees certain fundamental rights, subject to
the power of the State to impose restrictions from exercise of those rights. The
rights conferred by Article 19 are not available to any person who is not a citizen of
India. Article 19(1) guarantees those great basic rights which are recognized and
6
 guaranteed as the natural rights inherent in the status of the citizen of a free
country. Article 19(1) (a) of the Constitution states that all citizens shall have the
right to freedom of speech and expression, which includes one‟s right to expression
of his self-identified gender. Self-identified gender can be expressed through dress,
words, action or behavior or any other form. No restriction can be placed on one‟s
personal appearance or choice of dressing, subject to the restrictions contained
in Article 19(2) of the Constitution.
4. Article 21 of the Constitution of India reads as follows:
“21. Protection of life and personal liberty – No person shall be deprived of his life
or personal liberty except according to procedure established by law.” Article 21 is
the heart and soul of the Indian Constitution, which speaks of the rights to life and
personal liberty. Right to life is one of the fundamental rights and not even the State
has the authority to violate or take away that right. Article 21 takes all those aspects
of life which go to make a person‟s life meaningful. Article 21 protects the dignity
of human life, one‟s personal autonomy, one‟s right to privacy, etc. Right to dignity
has been recognized to be an essential part of the right to life and accrues to all
persons on account of being humans. Recognition of one‟s gender identity lies at the
heart of the fundamental right to dignity. Gender, as already indicated, constitutes
the core of one‟s sense of being as well as an integral part of a person‟s identity.
Legal recognition of gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution.

5. International Conventions and norms are significant for the purpose of

interpretation of gender equality. Article 1 of the Universal declaration on Human
Rights, 1948, states that all human beings are born free and equal in dignity and
rights. Article 3 of the Universal Declaration of Human Rights states that everyone
has a right to life, liberty, and security of person. Article 6 of the International
Covenant on Civil and Political Rights, 1966 affirms that every human-being has
the inherent right to life, which right shall be protected by law and no one shall be
arbitrarily deprived of his life. Article 5 of the Universal Declaration of Human
Rights and Article 7 of the International Covenant on Civil and Political Rights
provide that no one shall be subjected to torture or to cruel inhuman or degrading
treatment or punishment. United Nations Convention against Torture and Other

7
Cruel Inhuman and Degrading Treatment or Punishment (dated 24th January,
2008) specifically deals with protection of individuals and groups made vulnerable
by discrimination or marginalization. Para 21 of the Convention states that States
are obliged to protect from torture or ill-treatment all persons regardless of sexual
orientation or transgender identity and to prohibit, prevent and provide redress for
torture and ill-treatment in all contests of State custody or control. Article 12 of the
Universal Declaration of Human Rights and Article 17 of the International
Covenant on Civil and Political Rights state that no one shall be subjected to
“arbitrary or unlawful interference with his privacy, family, home or
correspondence”.

8
Issues Raised

1. 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.
2. WHETHER TRANSGENDERS HAVE FREEDOM AS TO CHOOSE THEIR
GENDER.
3. WHETHER SUCH PERSONS CAN BE DECLARED AS SOCIALLY &
EDUCATIONALLY BACKWARD CLASS AND RECEIVE THE BENEFITS
SUCH AS THOSE EXTENDED TO MALE AND FEMALE GENDERS.
4. WHETHER THE STATE SHOULD MAKE LEGISLATIONS TO PROTECT
THE RIGHTS OF TRANSGENDERS.

9
Arguments

Issues Raised By The Petitioner-

1. 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.
2. 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.
3. 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.
4. That transgenders should be recognised as socially and educationally backword and
hence should get proper benefits available for such people.
5. 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–

1. 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.

10
Decision of the Supreme Court
Direction 1 “Hijras, eunuchs, apart from binary gender, be treated as „third gender‟ for the purpose
of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament
and the State Legislature”.
Direction 2 “Transgender persons‟ right to decide their self-identified gender is also upheld
and the Centre and State Governments are directed to grant legal recognition of their gender
identity such as male, female or as third gender”.
Direction 3 The NALSA judgement directs that the members of the trans-community are to be
treated as Socially and Economically Backward Classes (SEBC) and extended reservation in
matters of public employment and education

11
 Analysis
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 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).
 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

12
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.

13
14