NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA
(2014) 5 SCC 438
FACTS
The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalised sections of the society, has come forward to advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, has also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in respect of the Kinnar community, a TG community. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded so as to effectively put across the cause of the members of the transgender community and Tripathy’s life experiences also for recognition of their identity as a third gender, over and above male and female
ISSUE
The issue in the current case pertains to the concerns 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. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.
JUDGEMENT AND ANALYSIS
- The hon'ble court observed that the meaning of the term “person”within Article 14 and 21 is gender neutral andalso covers transgenders /hijras who are neither male nor fe-male. It was stated that they were entitled to all kinds of legal protection of laws in the state activity including employment, healthcare, education etc. Hence, Article 14 guarantees equality before law and equal protection of laws to every person, including the people belonging to the LGBTQ community.
- This court examined that the term “sex” wasn’t just limited to the biological sex of male/female. It also covers transgenders/hijras. Transgenders were legally entitled to receive the benefits available to socially and economically backward classes (SEBCs) for public or Stae employment and admission in schools for education.
- It was observed that Article 21 guarantees enjoyment of life by all citizens of this country by dignity viewing this human right in terms of human development and self determination of gender is an integral part of personal autonomy and self expression and falls within the terms of liberty guaranteed under Article 21.
- Addressing the rights of transgender people, this court also observed that the courts cannot remain a mute spectator when their rights are violated, especially when such rights have gained universal recognition and acceptance. The judicial role in a democracy is not only to simply decide a dispute, but to also uphold the rule of law and ensure the access to justice to the marginalised sections of our society i.e. transgenders. It also observed that by recognizing transgender as a third gender, this hon'ble court was bridging the gap between law and life within our society which is a primary job of the justice system in a democracy.