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National Legal Services Authority V UOI
AIR 2014 SC 1863 : (2014) 5 SCC 438
Brief of the case
Brief
Citation : AIR 2014 SC 1863 : (2014) 5 SCC 438
Court : The Supreme Court of India
Date of Decision : 15 April 2014
Judges : AK Sikri and KS Radhakrishnan, JJ
Petitioner : National Legal Services Authority
Respondent : Union of India
Facts of the case
Facts
- The petitioner in this case filed a writ petition on behalf of the transgender community and sought a legal declaration of the gender identity of the transgender’s than the one assigned to them as male or female at the time of their birth
- Their prayer was that the non-recognition of their gender identity violates Article 14 and Article 21 of the Constitution of India. Hijras who also fall in that group claim legal status as third gender with all the legal and constitutional protection.
Issue of the case
Issue
- The main issue involved in this case was related to the recognition of the transgender’s as third gender.
Judgement of the case
Judgement
- Rarely does our society realise or cares to realise the trauma, agony and pain which the members of the transgender community undergo and nor do they appreciate the innate feelings of the transgender community, especially of those whose body and mind disown their biological sex.
- Our society often abuses and ridicules the transgender community in public settings such as the railway station, bus stand, schools, workplace, theatre, malls, hospitals etc. They are sidelined and treated as untouchables often forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions this is the mindset which we have to change.
- For the transgender community to enjoy their civil rights the gender identification becomes an essential component and only with this recognition that many rights attached to the sexual recognition as third gender would be available to this community more meaningfully. The right to vote, right to own property, right to marry, right to claim a formal identity through a passport and a ration card as well as a drivers license, right to education, employment health and so on. Furthermore, there seems to be no reason why a transgender must be denied of basic human rights.
- Human rights which include right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights to the transgender.
- It is high time for us to recognise this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition of transgender as the third gender. In order to translate the aforesaid rights of transgender’s into reality it becomes imperative to first assign them their proper sex at the time of birth itself.
- However, it is either male or female. In the process the society as well as law has completely ignored the basic human rights of transgenders to give them their appropriate sex categorisation. Upto now they have either been treated as male or female and this is not only improper as it is far from truth but in dignified to these transgender’s and violates their human rights.
- There may not be any statutory regime recognising third gender for these transgender’s. We find enough justification to recognise this right of theirs in natural law sphere. Rule of Law demands protection of individual human rights and such rights are to be guaranteed to each and every human being.
- These transgender’s even though insignificant in numbers are still human beings and therefore they have every right to enjoy their human rights. By recognising transgender’s as third gender the court is not only upholding the rule of law but also advancing justice to the class so far deprived of their legitimate natural and constitutional rights.
- Therefore, the only just solution which ensures justice not only to transgenders but also justice to the society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution enshrined in the Preamble the Fundamental Rights and the Directive Principles of State Policy into action whose arms are long enough to bring within its reach and embrace this right of recognition to the transgenders which legitimately belongs to them.
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