Author Name:   rajbils

Article 14, Article 15, Article 21, Constitution, Eunuchs, Gender, NALSA, National Legal Services Society Authority, Public Interest Litigation, Transgender

By a landmark ruling on April 15, 2014, the Supreme Court of India granted legal recognition to transgender people. The apex court, in its ground-breaking judgment delivered by a Division Bench of Justices K.S. Radhakrishnan and A. K. Sikri in a Public Interest Litigation filed by National Legal Services Society Authority (“NALSA”) seeking the recognition of ‘Transgender’ as a third gender, held that Articles 14, 15 and 21 of the Indian Constitution do not exclude transgender persons from their ambit and take into account rights of ‘Hijras’ as well.

NALSA was represented by Senior Advocate Raju Ramachandran and Advocate on Record, Anitha Shenoy, whereas, Additional Solicitor General Rakesh Khanna appeared for the Union Government. Senior Advocate Anand Grover appeared on behalf of an individual intervenor. The contentions tabled in the PIL included the notion that the fundamental rights guaranteed under Articles 14, 15, 16 and 21 of the Constitution were violated by the non-recognition of ‘transgender’ as a separate legal category. NALSA argued successfully that transgender people, similar to males and females, should have the right to express their gender identity freely. The plea requested the SC to pass appropriate orders towards ‘transgender’ being recognised as a third category in providing various facilities such as passport, driving license, election card, medical treatment, admission to institutions and ration card.

This landmark judgment comes in only a few months after the SC restored the law criminalizing homosexual intercourse in a ruling that outraged the entire gay population of the country. Last December, India’s highest court had reinstated a ban on gay sex. This ruling was highly criticised as dragging the country back to the 19th century. However, the ruling that came in this Tuesday recognizing ‘transgender’ as a separate gender made India the first country to do so.

Eunuchs have faced discrimination, ostracism, hate crimes, detestation, harassment, abuse, animosity, and lack of opportunity in almost all spheres of life for centuries in India, a traditionally conservative country. They have always been considered far from ‘equal’ to the other two genders in a country whose Constitution is based on facets such as Equality, Liberty, Justice and Fraternity. The iconic judgment delivered by the SC is a leap in itself towards the attainment of these goals of our Constitution. It is respectfully submitted that transgender people are also entitled to basic amenities of life such as food, clothing, right to education, shelter, medical facilities and right to employment. It is not only inhumane to deprive these people of their basic human rights, but it is also prehistoric and ancient for a country such as India to not recognise them as equals. The step taken by the highest court of the land can be said to be towards removing these antediluvian factors prevalent in the Indian society and is highly liberating and creditworthy.

It is high time that the country is liberated from its archaic and traditional beliefs which have no legal or moral base. The object should mainly be to transform the thought process of the society as a whole with respect to the status of transgender people and to make every effort to assimilate them into the mainstream of the Indian social fabric. The move by SC seeks to improve the conditions of the mass of downtrodden, neglected and exploited part of the country’s population and endow them with dignity, self-respect and access to the various facilities that are available to the other two genders.

It was held by the apex court that one’s right to identity with respect to his gender was a feature of the basic principle of dignity and transgender people, thus, had a right to choose their gender based on self-identification of their sex. Eunuchs not only have a right to choose their gender but they also have a right to freely express the same and a right against exploitation based on their chosen gender. The Bench directed the Central and State governments to identify ‘transgender’ as a neutral third gender and to treat them as ‘socially and economically backward’. The SC also directed the governments to frame various social welfare and educational schemes for their protection and advancement, and to implement policies for the safeguard of their rights. This is a welcome move as this class of people has been discriminated against for centuries and does need a helping hand to rise to the same footing or socio-economic status as that of the other two genders. A great move ahead!

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