CASE ANALYSIS: NATIONAL LEGAL SERVICE AUTHORITY V UNION OF INDIA

INTRODUCTION

This case is not just about asking for the right but instead, it is about asking and begging for something which we deserve. This case deals with giving transgender the status of the third gender which should have been done previously as transgender is not a group that has emerged now or in this century but it’s a community or group of people who was there even in the time of Lord Rama and in centuries before. This case is an example of a saying called what belongs to you will surely come to you, but you need to work for it. Well, it should have come in a very early period but coming now is also a phase of happiness as people got what they deserved.

HISTORY OF TRANSGENDER

The recognition given to Kinnar or Hijra now by the government is not a new process because they were given a prestigious status in the past too. In contrast, to the present scenario, in the past (in Indian mythology) they were regarded as close to the gods. Kinnars have a long-standing custom in India of attending weddings and childbirths to bestow blessings. They are lavishly rewarded with large sums of money and numerous ceremonial gifts since their stature is compared to that of God, and so their blessings are thought to be pure and efficient. Abusing a Kinnar, even just physically harming them, is illegal in Hinduism for fear of incurring the wrath of the sole being who matters to every Indian: God. When we look back to our epics, such as the “Ramayana” and “Mahabharata,” we find countless instances of “the third gender” playing a vital role in the plot. It demonstrates how they were not only accepted as a normal element of ancient and medieval culture but also played an important role in the epics, which are revered by a major portion of India’s population. Lord Shiva takes the shape of Ardhnarishivara, who is revered all over India and is half man, half woman. As a figure, Ardhnarishvara exemplifies how flexible genders and sexualities have long been a part of our society.

Moral of the Story?

All we have to do now is go back to our origins. Those who believe that gender fluidity is a new fad and is against our culture should read our epics carefully. Otherwise, stop pretending that you’re striving to preserve our culture, because it’s your hazy understanding of our all-pervading, welcoming culture that you’re undermining. We should not form an opinion or decimate it when we don’t possess the proper knowledge of it.

FACTS OF THE CASE

Transgender faced something which was a natural or biological process and not at all in their control to have it or let it go. Right from the beginning transgender faced biasness even when they were living in the country which has the world’s lengthiest constitution and is known for democracy and equality. It’s just unfortunate to say that transgender faced discrimination right from their birth to their profession, in hospital, in community, in schools and the list will go on. This discrimination, suffering, struggle eventually led to the application of the petition. Therefore, the case came before the court when a Public Interest Litigation was filed by the National Legal Services Authority followed by other petitioners as well[1].

VIOLATION OF LAWS IN THIS CASE

According to Article 14 (right to equality) of the Indian Constitution, no person shall be discriminated against based on sex, religion, etc, within India’s borders, the state shall not deny anyone equality under the law[2]. As per Article 15[3] of the Indian Constitution: The state shall not be discriminated against based on race, sex, religion, or other factors. Article 19 of the Indian Constitution is also violated as according to this, citizens have the freedom to speak, form association or unions, or to meet peacefully without arms. This right granted under Article 19 is one of the most important rights which is being violated. Most of the time transgender are judged and were denied their right to choose clothes and this completely violates Article 19.[4] Article 21[5] of our Constitution guarantees citizens the right that no person shall be deprived of his life and personal liberty except by law. Transgender people have the right to live decent and respectful life. It also includes the right to live in a dignified manner. Article 16[6], which states that all citizens should have equal opportunity, is also being infringed. No one shall be discriminated against solely based on religion, race, caste, sex, descent, and place of birth, domicile, or other factors. Transgender people are denied equal employment opportunities. There are many international laws as well which are being violated according to the petitioners which are as follows

JUDGEMENT

According to the Supreme Court transgender people are protected by the Indian Constitution and are entitled to all of the Constitution’s provisions. Article 14, which ensures the right to equality, is one of these rights. Article 14 is a right that applies to “any individual” (equally to men, women, and transgender people). As a result, transgender people are entitled to the same legal protections as everyone else. In terms of employment, health care, education, and civil rights, transgender should be treated equally. Discrimination based on sexual orientation and gender identity is a breach of Article 14 since it leads to unequal treatment in the eyes of the law and unequal legal protection. Article 15 mandates that socially and educationally disadvantaged populations are improved. The Court stated that transgender people have not been able to benefit from Article 15(4)’s provisions which deal with the advancement of the socially and educationally disadvantaged. Transgender form such a group, and the state is obligated to take appropriate measures to correct the centuries of injustice that have been perpetrated against them. The Transgender community also has a right to Article 21 and this was very well noted and pointed out by the Court in the judgment. They have the right to live with dignity and personal freedom. The Supreme Court ruled that the Union and State governments must recognize gender identity as male, female, or third gender in legal terms. It was recognized that transgender people require full legal acknowledgment. They should have access to health care, education, and other benefits.

CONCLUSION AND AUTHORS OPINION

It is wonderful that a decision has been reached that recognizes transgender people as a distinct gender from binary gender, but the battle is far from ended. There is still a long way to go for the transgender community since battles can’t be won overnight. There will be a lot of scarifies and work required to win this battle and to give recognition to the third gender the same as given to males or females. It appeared that changing people’s opinions would take more time. I am not a transgender person I have no concept of how they feel daily. But I am a writer, and while writing and researching I felt so much and of course, they suffer more than what we can imagine.

Author(s) Name: Beauty Singh (Maharaja Agrasen Institute of Management Studies, GGSIPU)

References:

[1] Anand Swaroop Das, ‘NALSA Versus Union of India: The Supreme Court has started the Ball Rolling’ (2015) 5 (1) Chanakya National Law University Journal, 115-121

[2]Constitution of India, 1950, art 14

[3] Constitution of India, 1950, art 15

[4]Constitution of India, 1950, art 19

[5] Constitution of India, 1950, art 21

[6] Constitution of India, 1950, art 16