NALSA v UoI: Critical Analysis

The Supreme Court of India passed a landmark judgment on Transgender rights in April, this year. The Judgment was a long due acknowledgment of the rights of the Transgender in the nation. This judgment plays an essential role in the furtherance of the cause of Transgender and will help in removal of the stigma attached to the third gender and lead to greater social acceptance.

The Judgments applicability was restricted by the Court only to “Transgender”, and explicitly excluded the Lesbians, Gays and Bisexual, thereby not going in the controversial question of validity of Section 377 of Indian Penal Code. With regard to Transgender, both the people who want to transition from their respective genders and the ones who want to be identified with the third gender were included within the ambit of the judgment.

The court while discussing the grounds for recognition of third gender rested the case not on medical or social basis but on the basis of Human Rights. The Court recognized the importance of gender for applicability of various human rights like right to vote, right to marry, right to own property, right to claim formal identity through a passport and ration card etc. The court while deciding this, looked at Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966 (ICCPR) and Yogyakarta Principles.

While discuss the rights of the transgender, an important declaration was made with regard to the impact of international conventions on Fundamental rights. The court notes that any international convention that is not inconsistent with Fundamental Rights must be read into the provisions of the constitution, which significantly broadens the scope of fundamental rights. The court in this case looked into the Yogyakarta principles relating to sexual orientation and gender identity.

Another important issue raised in this judgment was with regard to the validity of the Sex Reassignment Surgery (SRS) from the point of view of Human Rights and the court held the test to be illegal and insisted on using the “Psychological test”. The court here emphasized on the psychological factors of relating to a gender than the binary notion of gender of that person, thereby focusing on the root cause of trauma of the Transgender community.

With regard to the detailed procedure for implementation and recognition of the third gender, the report of Ministry of Social Justice and Empowerment Expert Committee will play a very important role as has been stated in the judgment. The Court states that the recommendations should be examined based on the legal declarations made in this judgment and implemented within six months. This order by the court broadens the scope of rights that can be granted to the Transgender community as the report of Ministry of Social Justice and Empowerment Expert Committee essentially covers up most aspects of life that could help in upliftment of the gender minority. For instance, recommendations include Setting up of crisis centers, and gender sensitization in institutional settings.

The only point where the court seems to lack a stance is on Section 377. Though the judgment recognizes the harm done by Section 377 to the Transgender community, it did not make any orders or recommendations regarding the same.

Summarizing the judgment, the court gave the following directions to the Central and State Governments:

-That Hijras are to be treated as Third gender to safeguard their rights under Part III of the Indian Constitution

-The People have right to decide there self identified gender and the central and state governments are directed to grant legal recognition of gender as male, female or third gender;

-Transgender should be treated as Socially and Educationally Backward Classes and reservations should be extended to them in cases of admission in educational institutions and for public appointments

-That insistence on SRS for declaring a persons gender is illegal and immoral; and

-That various social welfare schemes for the betterment of Transgender should be framed and proper medical care to Transgender in hospitals should be provided

This judgment provides with broad directions to the Government in order to create public awareness with regard to the rights of Transgender and make them feel as a part of the society.

Though the judgment explicitly excludes the Lesbians, Gays and Bisexuals, there could be serious progress on their rights and validity of Section 377 of Indian Penal Code using the Obiter Dicta of this judgment. The Court through this judgment gives rights against discrimination to people who do not conform with “stereotypical generalizations of binary genders”.

If applied to the rights of LGBT community, this judgment could be an important milestone in furthering the cause against Section 377.

The Clarifications/Modifications that the Government seeks on the judgment are mentioned below:

-Whether only Hijras/eunuchs are to be treated/declared as third gender or all transgender persons have to treated/declared as third gender. This confusion arises due to use of different terms in directions 1 and 2 of the judgment by the court.

-The petition also raised the issue that most transgender consider the term Eunuch as derogatory and that there’s is not a separate community because of the name and that even if this term is left out, no community will be left out. This modification is requested because of the meaning of the term Eunuch (A man who has been castrated especially one employed to guard the women’s living areas at the oriental court).

-The petition, with regard to recommendation of the Expert committee being implemented within 6 months seeks to modify the judgment as all the recommendations cannot be implemented within 6 months.

-The petition also seeks clarification on the issue of scope of the term transgender i.e. does it include, LGB or LGBT or only T on which the court has already clarified in the judgment itself that it applies to the narrower meaning i.e. T.

In conclusion, the judgment is progressive not only for the Transgender community but for communities who differ from the general notions of society. Also, what needs to be seen is whether the Government implements the recommendations within six months or if these recommendations also become victim of infinite delays.

By Vipin Mittal, O. P. Jindal Global University.