The judgment of the Supreme Court of India delivered in the case of National Legal Services Authority v. Union of India on 15th April 2014 by a Division Bench comprising Justices K. S. Radhakrishnan and Dr. A. K. Sikri is a historical decision which will be a mile stone in the area of gender justice in the country and will have long term impact in the coming times. The verdict is a great example of recognition of right to life with dignity and is also an example of unique judicial craftsmanship and creativity on the part of the apex constitutional court of the country which decides the legal destiny of the nation by interpreting its Constitution and the statutes which ultimately makes all courts and tribunals bound to follow the judgments of the Supreme Court as per the mandate of Article 141 of the Constitution. Though it was the duty of the Parliament to make a law on third gender and provide them necessary legal recognition, it is actually carried out by the Supreme Court in this judgment. The judgment is a constructive step towards the humanization of justice-delivery system in the country and has erased an injustice which was prevailing against lakhs of people for centuries in Indian society. The judgment conforms to the mandate of basic human rights and dignity of the people including third genders as enshrined in the fundamental law of the land drafted by eminent founding fathers such as Dr. B. R. Ambedkar, Pandit Jawaharlal Nehru, and Alladi Krishnaswamy Iyer and so on. It is another extended view of right to life under Article 21 of the Constitution and also an instance o asserting equality based legal order an enshrined under Article 14 of the Constitution.
The judgment in the NALSA case conforms the mandate of the international law and human rights conventions encouraging the law-makers of the country to incorporate the same into the municipal law of the land effectively which would be benefitting lakhs of people who were and are still humiliated for a long time and whose voice is not heard in the Parliament House or the State Legislative Assemblies as they do not have sufficient votes which would affect the results. Unfortunately in our country it is only the votes which count and not the voice. This judgment has brought the country into highest pedestrian of human rights jurisprudence giving meaning to the interpretation of right to life and human dignity enshrined under Article 21 of the Constitution. It is a unique example of equality jurisprudence inherent in Article 14 of the Constitution of India. The two great judges who pronounced this historic verdict deserve all appreciations and respect by all those who believe in a civilized legal order and inclusive growth jurisprudence. It promotes constitutional culture and morality in the country. “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it” said Dr. B.R. Ambedkar. This judgment fulfills the vision of Dr. Ambedkar and places India in the category of those civilized nations that focus on human development and growth in the best possible manner.
The above mentioned judgment is a great example of judicial creativity. It proves that our judges not only adjudicate the legal issues but they enact the laws through their interpretation. It has been a matter of debate whether the judges make the law or interpret it. In 1980, Lord Diplock said that “Parliament makes the laws, the judiciary interprets them” [Duport Ltd v Sirs  1 WLR 142, 157 per Lord Diplock. See also Lord Mustill in Ex p Fire Bridges Union  2 AC 513 at 597]. By that he meant that, where Parliament has legislated, it is for the courts to interpret the legislation, not to rewrite it. But the statement is sometimes invoked to support the view that judges have no business in making law. That view fails to understand the nature of the task that a common law judge in developing the law. Judges are and always have been lawmakers; this is inherent in their constitutional role in a common law system which India has also followed. Indeed, even 150 years ago, and maybe more recently, more English laws were made by judges than by legislators. The balance of the functions, a practical matter, may have changed, but the nature of the functions, a matter of fundamental principle, has not. The notion that Parliament is the only body engaged in law-making in the wider sense is demonstrably untrue and it does not involve so-called “judicial supremacism” to suggest otherwise. An article last year identified “tiers of relative invisibility’ as the law-making function is diffused across a spectrum of “intermediate law-makers”, such as lobbyists, regulatory bodies and Judges[Jonathan Montgomery et al, Hidden Law-Making in the Province of Medical Jurisprudence (2014) 77(3) MLR 343]. A judge is often called upon to make new law, whether by developing existing principles to address novel situations or lacunae, by interpreting and reinterpreting legislation and statutory instruments, or, more controversially, by revisiting established principles in light of social change.
It is a matter of fact that ever since the commencement of the Constitution the Supreme Court has been very active in protecting the fundamental rights of the people as enshrined in the Constitution and interpreted it in light of the international developments also. The Court made the law-making bodies more accountable and made some laws too. It is well-known how the Supreme Court put a brake on the amending power of the Parliament in the Golaknath case. Though after a few years the Supreme Court overruled the Golaknath judgment in the Kesavananda Bharati, it imposed a heavy restriction on the Parliament in the latter case and held that the basic features of the Constitution cannot be altered or destroyed by the Parliament during the amendment process carried out as per Article 368 of the Constitution. The Public Interest Litigation jurisprudence has been created by the judiciary particularly the Supreme Court and is a clear example of judge-made law. The judgment in NALSA case is also an example of Public Interest Litigation jurisprudence.
Before this judgment, there was no law to deal with the legal recognition of transgenders in our country. It is a matter of deep concern that the law-makers in the land of Swami Vivekananda did not think it appropriate to spare some time on the problems of transgenders. They left them at the mercy of God. The transgenders were not able to protect their dignity as they had been intended to indulge in begging and other mean jobs which were contrary to their dignity. They were not able to raise their voice through the electoral means as their voice was not heard by the law-makers but the apex court of the country heard their voice and came to their rescue. It is only the judgment delivered by two great Justices Mr. Radhakrishnan and Dr. Sikri of the Supreme Court that asserted their rights and dignity through judicial process and compelled the arrogant and insensitive lawmakers to enact a law for their welfare and survival. After this judgment, a Bill has been passed by the Rajya Sabha and still waiting to be tabled in the Lok Sabha for necessary process. This judgment is a unique example of liberal interpretation of constitutional text in the light of humanitarian approach and democratic discourse. It humanizes the law. By this judgment began a new process of judicial assertiveness and the Court continued to engage in the law-making process through interpretation.
It is well-known that the Constitution of India, supreme law of the land, provides fundamental rights to the people of the country irrespective of their caste, class, and race, colour or gender in Part III against the State which is defined under Article 12 of the Constitution. In essence, the Constitution is ‘sex blind’. It does not allow the lawmakers to discriminate on the basis of sex. Like the other people that is the ordinary male and female, the transgenders are also entitled to get the protection of fundamental rights such as equality before the law, and other rights as they constitute the corum of ‘people of India’. Article 14 of the Constitution prohibits discrimination on the basis of sex. Other clauses of the article equally prohibit discrimination on the basis of sex if someone wants to have access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public. Similarly, Article 16 of the Constitution provides equality of opportunity in matters of public employment to all citizens under the state employment. And the state is prohibited to discriminate against any citizen on the basis of sex in giving public employment. Article 19 provides various freedoms to all citizens of India and Article 21 provides protection of life and personal liberty of any person. All these rights and freedoms are equally available to the transgenders also. But in practice the situation is entirely different. Whenever these people approach government functionaries for their rights, the government does not listen to them and takes the plea of gender binary. Consequently they are forced to indulge in inhumane acts which make them laughing stock in the eyes of the society. In fact, they are not at all considered as a part of society. They are deprived from the fruits of inclusive growth.
It is noteworthy that the State is mandated to honour thee fundamental rights of the people and if it violates their fundamental rights, they can move to the Supreme Court or the High Court for getting relief. Not only against the State, but even against private persons some fundamental rights are enforceable like Article 17 and 23. Generally, as per Part III of the Constitution, the beneficiaries of the rights are identified as ‘person’ or ‘citizen’. In the absence of any specific or implied exclusion or denial of such recognition, by virtue of the fact that a transgender is a human being, all fundamental rights must necessarily flow to a transgender also. The ‘transgender’ community falls within the purview of the Constitution of India and thereby they are fully entitled to all the rights as guaranteed under it. Unfortunately the term ‘natural person’ is interpreted as male and female of any age. The people who are neither male nor female are not included in the definition of person. This is a wrong practice as well as perception. Only the private part does not certify the identity of any human being. It is the physical persona and mental assets which matters. Except the private part, the God has given all faculties to the transgenders which they can exercise properly and make their visible contribution in the society if opportunities are given to them. The transgenders are citizens of India and are fully entitled to get the benefit of all schemes and programmes launched by the Government irrespective of their population. Now the Election Commission of India has also taken special measures to enroll the transgender persons as electors. The other lawmaking authorities should also take a lesson from the Election Commission and should recognize the third gender specifically.
This is a naked truth that lakhs of people are there who belong to this category of third gender and are deprived of the constitutional guarantees and other statutory protections. Without any fault on their part they have become the victims of grammatical interpretation by the state and humanity is thrown into dustbin by the lawmakers. Is it not against the human dignity? It is a gross violation of human rights and dignity as well. The police and municipal authorities treat these people badly and exploit them for many reasons which cannot be accepted in a constitutional democracy based on the rule of law. For many years, no affirmative action was taken by the Governments to recognize their gender and these people were thrown at the mercy of God who is the maker of the whole universe. It is only the Supreme Court of India which took the cognizance of their plights in the NALSA case and came to their rescue and recognized their dignity by declaring them third gender and directed the state to implement its verdict. This judgment humanized the law by giving protection to lakhs of people who were kept outside the citizenry for a long time by the law makers without any fault. As per the mandate of Article 141 of the Constitution of India the judgment has become the law of the land and the Government is bound to implement it in its letter and spirit under Article 144 of the Constitution. This judgment will be long remembered in the judicial history of India.
The judgment of the Supreme Court in the NALSA case has protected the dignity of lakhs of people and gave them status and respect in the society that they truly deserved. It gave them a confidence that they are also the part of the society like other males and females and have full stake in its welfare and have all rights to grow. They have all rights to get the benefit of fruits of an independent and secular country, a country which is based on the rule of law. It gave them a right to be the part of the electorate which elects its government periodically and also an opportunity to be the part of the lawmaking bodies. These people, who are born in the land of Mahatma, are very happy with this judgment of the apex court which has settled their fate. In fact, it is the path-finding judgment for them and their future generations. It gives them heavy relief from the trauma which they were facing for the centuries at the hands of the society, the society which treated them as untouchables. Neither education nor jobs were available to them and only begging had become their destiny. They were not allowed to be the part of public meetings and dialogues. They were treated uncivilized by so-called civilized men and women. In public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, everywhere they were sidelined and kept out of the social fabric. In his judgment in the NALSA case Justice Radhakrishnan admits this fact in these words: “Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.” Indeed, these are shocking observations which need a serious consideration by the policy-makers.
It is submitted that by recognising the transgender community as a third gender entitled to the same rights and constitutional protection as all other citizens i.e. male and female, the Supreme Court of India has put in place a sound basis to end discrimination based on gender, especially gender as presumed to be assigned to individuals at birth. Further, beyond prohibiting discrimination and harassment, the Court has extended global principles of dignity, freedom and autonomy to this unfairly marginalised and vulnerable community and has met the norms of Universal Declaration of Human Rights. The judgment lays down a comprehensive framework that takes into its fold not merely the negative right against discrimination, but also “the positive right to make decisions about their lives, to express themselves and to choose which activities to take part in.” It is not their birth duty to earn by begging or singing and dancing on roads. They are equally entitled to be the part of the public services and other jobs. In particular, the direction of the court that they should be treated as ‘socially and educationally backward’ and given reservation in education and employment, is a far-reaching contribution to their all-round development. Recently the Supreme Court has reiterated its stand for including the transgenders in the category of other backward classes in Ram Singh v. Union of India case. Appreciating the NALSA case the Supreme Court observed in this case:
The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path- breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground’ in claiming preference and benefits on the basis of historical prejudice.
The above mentioned observations compel the government to take a note of third gender in the society. It reiterates the previous observations given in the NALSA case. The jurisprudential basis for the judgment in the NALSA case is that sex identity cannot be based on a mere biological test but must take into account the individual’s psyche. The Court has noted that Indian law treats gender as a binary male/female concept, with sections of the Indian Penal Code and Acts related to marriage, adoption, divorce, succession, and even welfare legislation, being examples. The Court has also relied on the Yogyakarta Principles — norms on sexual orientation and gender identity evolved in 2006 at Yogyakarta in Indonesia — to bolster its reasoning. But only the judicial verdict is not sufficient. There is an urgent need of attitudinal change in the society. The society would have to accept these people so that they should not feel segregated. The society should bring these people in mainstream. The Supreme Court has given the society a chance to contribute for these people so that we might achieve our common goal.
The judgment of the Supreme Court in the NALSA case will give huge relief to the transgenders. By virtue of this judgment, all identity documents, including a birth certificate, passport, ration card and driving license would recognise the third gender. It is a historical judgment. It has determined the legal destiny of lakhs of people whose human rights were willfully violated by the state for a long time. The Supreme Court has declared the law in favour of these people who have become the part of “We, the People of India”, the people who made their supreme law of the land. It will certainly please our Founding Fathers who are sitting in the heaven that their people are happy and prosperous and the document which they drafted to govern the nation is governing the nation well. It will make the legal order human friendly and inclusive.
Now once the transgenders are recognized as third gender in the legal documents by all states and their agencies, the third gender people can move to courts of law if any of their right is violated by the state or even private persons also as access to justice is the essence of rule of law. The hammer of Article 144 of the Constitution will compel the state and its instrumentalities to implement the verdict of the Supreme Court in its letter and spirit. Let us hope that the Government implements the verdict of the Supreme Court honestly and gives these people their dues for which they are fully entitled. It is a matter of fact that though this judgment is a historical judgment which has protected the dignity and identity of the transgender, only this verdict is not sufficient. This verdict should be implemented by the Central Government, State Governments, and all other agencies of the Government in toto and a particular policy should be framed by the different ministries/departments to prepare a national plan for the welfare of transgenders. The Government should constitute a National Commission for the Transgenders which should look after the interests of these people and protect their rights effectively. If possible, either the constitutional or statutory status should be given to this commission. Until and unless the transgenders get a fair deal, the vision of inclusive growth set by the founding fathers can never be achieved in this land of Buddha. This is not only the duty of the state but it is a collective duty of all of us which we must discharge truly.
It is a matter of deep concern that despite the submission of the report by an expert committee to the Ministry of Social Justice and Empowerment, Government of India, the recommendations of the committee are yet to be implemented by the Centre and the States. It shows that the Governments are not taking the welfare of transgenders seriously as they do not constitute a visible electoral constituency. This matter needs a serious consideration and the Government should take it seriously and frame the national policy for these people as soon as possible.
Dr. Lokendra Malik is an Advocate at Supreme Court of India and a well known author.