Supreme Court of India
NATIONAL LEGAL SERVICES AUTHORITYversusUNION OF INDIA AND OTHERS
- Citation
- 2014 INSC 275
- Decided
- 15 April 2014
- Disposal
- Case Allowed
- Bench
- K S RADHAKRISHNAN
Holding
Transgender persons are included within the meaning of "person" and "sex" under Articles 14, 15, 16, 19 and 21 of the Constitution and are entitled to legal recognition as a third gender with all associated rights.
Summary
The Supreme Court considered writ petitions filed by the National Legal Services Authority and a transgender association seeking legal recognition of transgender persons' self‑identified gender and the status of a "third gender" under the Constitution. The Court examined constitutional provisions (Arts. 14, 15, 16, 19, 21), international human‑rights instruments, and comparative foreign jurisprudence, concluding that "person" and "sex" in the Constitution are gender‑neutral and include transgender individuals. It held that transgender persons are entitled to equality, non‑discrimination, freedom of expression and dignity, and that the state must recognise them as a third gender and extend affirmative measures. The petitions were allowed, directing the Union and State governments to grant legal recognition, treat transgender persons as socially and educationally backward classes, and implement welfare measures.
Issues considered
- The right of a person born male (or female) with a gender identity different from the assigned sex to be legally recognised as the gender of their choice, especially after sex‑reassignment surgery.
- Whether transgender persons who are neither male nor female have a constitutional right to be identified and categorised as a "third gender".
Legislation cited
- Criminal Tribes Acts. 1871
- Indian Penal Code, 1860s. 377
- Legal Services Authority Acts. 1997
- Sex Discrimination Acts. 1984 (Australia)
- Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Acts. 2013 (Australia)
Subjects
transgender rightsthird gendergender identityArticle 14Article 15Article 16Article 19Article 21non‑discriminationsex‑reassignment surgeryhuman rightsYogyakarta Principlesconstitutional lawequality before law
Judgment
[2014] 5 S.C.R. 119
NATIONAL LEGAL SERVICES AUTHORITY A
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 400 of 2012)
APRIL 15, 2014 B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
CONSTITUTION OF IND/A, 1950:
Article 14 - Transgenders • Claim for equal treatment - C
Held: Article 14 states that the State shall not deny to "any
person" equality before law or equal protection of laws within
the territory of India - Article 14 does not restrict the word
'person' and its application only to male or female - Hijras/
transgender persons who are neither male nor female fall o
within the expressions 'person' and hence entitle to legal
protection of laws in all spheres of state activity including
employment, healthcare, education as well as equal civil and
citizenship rights as enjoyed by any other Indian citizen -
Criminal Tribes Act, 1871 - Penal Code, 1860 - s.377. E
. Article 14 - Claim by Transgenders!Hijrasleunuch for
legal status as third gender - Held: Transgenders belong to
a distinct socio-religious and cultural group and, therefore,
have to be considered as a 'third gender' apart from male and
female - Gender identity is integral to the dignity of an F
individual and is at the core of 'personal autonomy' and 'self
determination' - Hijras/eanuchs, therefore, have to be
considered as third gender over and above binary genders -
Article 14, 15, 16, 19 and 21 do no exclude Hijras/TGs from
their ambit. G
Articles 14, 15, 16, 19, 21 - Transgenders - Held: Article
14 use expression ''person" and the Article 15 use expression
"citizen" and "sex" so also Article 16 - Article 19 a/so use the
119 H
120 SUPREME COURT REPORTS [2014] 5 S.C.R.
A expression "citizen" - Article 21 use the expression ''person"
- All these expressions, which are "gender neutral" evidently
refer to human-beings - Hence, they take within their sweep
Hijras!Transgenders and are not as such limited to male or
female gender.
B
Articles 15 and 16 - Prohibition of discrimination against
any citizen on the ground of 'sex' - Held: Both the Articles
prohibit all forms of gender bias and gender based
discrimination - Expression 'sex' used in Articles 15 and 16
C is not just limited to biological sex of male or female but
intended to include people who consider themselves to be
neither male or female - Bias - Gender bias.
Article 19(1)(a) - Freedom of speech and expression as
to self identified gender - Held: Freedom of expression
D includes freedom to express one's chosen gender identity
through varied ways and means by way of expression,
speech, mannerism, clothing etc. - Transgender's personality
could be expressed by Transgender's behaviour and
presentation - State cannot prohibit, restrict or interfere with
E Transgender's expression of such personality which reflects
that inheren"t personality - The values of privacy, se/f~identity,
autonomy and personal integrity are fundamental rights
guaranteed to members of the transgender community u/
Article 19(1 )(a) and the, State is bound to protect and
F recognize those rights.
Article 21 - Right to dignity - Transgenders - Held: Article
21 protects the dignity of human life, one's personal
autonomy, one's right to privacy - Right to dignity has been
recognized to be an essential part of the right to life and
G accrues to all persons on account of being humans - Right
to dignity forms an essential part of our constitutional culture
which seeks to ensure the full development and evolution of
persons and includes "expressing oneself in diverse forms,
freely moving about and mixing with fellow human beings" -
H Recognition of one's gender identity lies at the heart of the
·NATIONAL LEGAL SERVICES AUTHORITY v. UNION 121
OF INDIA AND OTHERS
fundamental right to dignity - Gender constitutes the core of A
one's sense of being as well as an integral part of a person's
identity - Article 21 guarantees the protection of ''personal
autonomy" of an individual - Self-determination of gender is
an integral part of personal autonomy and self-expression
and falls within the realm of personal liberty guaranteed under B
Article 21 of the Constitution of India - Human rights.
,
TRANSGENDERS:
Historical background of Transgenders in India -
Discussed. C
Gender Identity and sexual orientation - Meaning of -
Held: Gender Identity refers to individual's self identification
as a man, woman or other identified categories - Sexual
orientation refers to individual's enduring physical, romantic o
and/or emotional attraction to another person.
Rights of transsexual person who have undergone Sex
Re-assignment Surgery (SRS) - Test to be applied - Held:
Test to be applied is not the 'Biological test' but 'Psychological
test' - U11iversal Declaration of Human Rights, 1948 - Article E
6 - International Covenant on Civil and Political Rights, 196.6
- Articles 16, 17 - Doctrines/Principles - Yogyakarata
Principles - Human Rights.
Problems suffered and discrimination faced by · F .
Transgenders - Discussed.
Legislations in other countries on Transgenders -
Discussed.
Sex identity gender of persons and guarantee to equality G
and non-discrimination of gender identity - Applicability of, in
India - Held: There is no suitable legislation protecting the
rights of the members of TG Community - They are facing
discrimination in various areas and, therefore, there is
necessity to follow the International Conventions to which India H
122 SUPREME COURT REPORTS [2014] 5 S.C.R.
A is a party.
Gender identity - Whether a person who is born as a male
with predominantly female orientation (or vice-versa) has a
right to get himself to be recognized as a female as per his
8 choice moreso, when such a person after having undergone
operational procedure, charges his/her sex as well - Held: If
a person has changed his/her sex in tune with his/her gender
characteristics and perception which has become possible
because of the advancement in medical science and when
that is permitted in medical ethics with no legal embargo, there
C is no impediment, legal or otherwise in giving due recognition
to the gender identity based on reassign sex after undergoing
SRS.
Sex Re-Assignment Surgery - Legality of - Held: If a
D person has changed his/her sex in tune with his/her gender
characteristics and perception which has become possible
because of the advancement in medical science, and when
that is permitted by in medical ethics with no legal embargo,
there is no impediment, legal or otherwise, in giving due
E recognition to the gender identity based on the reassign sex
after undergoing Sex Re-Assignment Surgery (SRS) - Ethics
- Medical ethics.
DOCTRINES/PRINCIPLES: Principle of maximum of
F happiness to most of the people - Applicability of when claim
by transgender for equal status - Held: In such case, there is
no dichotomy between the individual freedom/liberty as
against public good - On the contrary, granting the right to
choose gender leads to public good.
G HUMAN RIGHTS: Held: There is universal recognition
that Human rights are rights that "belong" to every person, and
do not depend on the specifics of the individual or the
relationship between the right-holder and the right-grantor -
Moreover, Human Rights exist irrespective of the question
H whether they are granted or recognized by the legal and social
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 123
OF INDIA AND OTHERS
system within which we live - They are devices to evaluate A
these existing arrangements: ideally, these arrangements
should not violate human rights - In other words, human rights
are moral, pre-legal rights - They are not granted by people
nor can they be taken away by them.
8
INTERNATIONAL CONVENTION: Implementation of -
Held: Implementation of International Convention requires
legislation - Article 253 states that Parliament has power to
make any law for the whole or any part of territory of India for
implementing any treaty, agreement or convention - Indian C
courts can apply rules of international law according to the
principles of Comity of nations, unless they are overridden by
clear rules of domestic law - Constitution· of India, 1950 -
Articles 51, 253.
INTERNATIONAL LAW: Binding effect of - Held: If D
Parliament has made any legislation which is in conflict with
the International law, then Indian courts are bound to give
effect to the Indian Law rather than international law -
Constitution of India, 1950 - Articles 51, 253.
E
•JURISPRUDENCE: Theory of law - Kantian criterion of
justice - Interpretation of - Discussed.
_ WORDS AND PHRASES: Transgender - Held: It is
·generally described as an umbrella term for persons whose
gender identity, gender expression or behaviour does not F
conform to their biological sex - Transgender may also takes
in persons who do not identify with their sex assigned at birth,
which include Hijras/Eunuchs - TG Community comprises of
Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis
etc. - Etymologically, the term 'transgender' is derived from G
two words, namely 'trans' and 'gender' - Former is a Latin word
· which means 'across' or 'beyond' - The grammatical meaning
of 'transgender', therefore, is across or beyond gender - This
has come to be known as umbrella term which includes Gay
men, Lesbians, bisexuals, and cross dressers within its scope H
124 SUPREME COURT REPORTS [2014] 5 S.C.R.
A - Transgenderism is not a disease at all but a benign normal
variant of human experience akin to left handedness.
The instant writ petitions were filed by the members
of Transgender Community for declaration of their gender
identity than the one assigned to them, male or female,
8
at the time of birth. 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, also claimed legal status as a third gender with all
C legal and constitutional protection.
The questions for consideration in these writ
petitions were whether a person who is born as a male
with predominantly female orientation (or vice-versa), has
a right to get himself to be recognized as a female (or
D vice-versa) as per his/her choice moreso, when such a
person after having undergone operational procedure,
changes his/her sex as well; whether transgender (TG),
who are neither males nor females, have a right to be
identified and categorized as a "third gender".
E
Allowing the writ petitions,.the Court
HELD:
Per Radhakrishnan, J.
F
1. Transgender is generally described as an umbrella
term for persons whose gender identity, gender
expression or behavior does not conform to their
biological sex. TG may also takes in persons who do not
G identify with their sex assigned at birth, which include
Hijras/Eunuchs who, in this writ petition, describe
themselves as "third gender" and they do not identify dS
either male or female. Hijras are not men by virtue of
anatomy appearance and psychologically, they are also
not women, though they are like women with no female
H reproduction organ and no menstruation. Since Hijras do
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 125
OF INDIA AND OTHERS
not have reproduction capacities as either men or A
women, they are neither men nor women and claim to be
an institutional "third gender". Among Hijras, there are
emasculated (castrated, nirvana) men, non-emasculated
men (not castrated/akva/akka) and inter-sexed persons
(hermaphrodites). TG also includes persons who intend B
to undergo Sex Re-Assignment Surgery (SRS) or have
undergone SRS to align their biological sex with their
gender identity in order to become male or female. They
are generally called transsexual persons. Further, there
are persons who like to cross-dress in clothing of c
opposite gender, i.e transvestites. Resultantly, the term
"transgender", in contemporary usage, has become an
umbrella term that is used to describe a wide range of
identities and experiences, including but not limited to
pre-operative, post-operative and non-operative D
transsexual people, who strongly identify with the gender
opposite to their biological sex, male and female. [Para
11] [168-G-H; 169-A-E]
HISTORICAL BACKGROUND OF TRANSGENDERS IN
INDIA: E
2.1. TG Community comprises of Hijras, eunuchs,
Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they,
as a group, have got a strong historical presence in our
country in the Hindu mythology and other religious texts. F
The Concept of tritiya prakrti or napunsaka has also been
an integral part of vedic and puranic literatures. The word
'napunsaka' has been used to denote absence of
procreative capability. Lord Rama, in the epic Ramayana,
impressed with their devotion had sanctioned them the G
power to confer blessings on people on auspicious
occasions like childbirth and marriage, and also at
inaugural functions which, it is believed set the stage for
the custom of badhai in which hijras sing, dance and
confer blessings. In Mahabharata, Aravan, the son of H
126 SUPREME COURT REPORTS (2014] 5 S.C.R.
A Arjuna and Nagakanya offered to be sacrificed to
Goddess Kali to ensure the victory of the Pandavas in
the Kurukshetra war, the only condition that he made
was to spend the last night of his life in matrimony. Lord
Krishna assumed the form of a beautiful woman called
B Mohini and married him. The Hijras of Tamil Nadu
consider Aravan their progenitor and call themselves
Aravanis.Jain Texts also make a detailed reference to TG
which mentions the concept of 'psychological sex'. Hijras
also played a prominent role in the royal courts of the
c Islamic world, especially in the Ottaman empires and the
Mughal rule in the Medieval India. [Paras 12 to 15] [169-
F-H; 170-A-D]
2.2. Though historically, Hijras/transgender persons
had played a prominent role, with the onset of colonial
D rule from the 18th century onwards, the situation had
changed drastically. During the British rule, a legislation
was enacted to supervise the deeds of Hijras/TG
community, called the Criminal Tribes Act, 1871, which
deemed the entire community of Hijras persons as
E innately 'criminal' and 'addicted. to the systematic
commission of non-bailable offences'. The Act was,
however, repealed in August 1949. Section 377 of the IPC
found a place in the Indian Penal Code, 1860, prior to the
enactment of Criminal Tribes Act that criminalized all
F penile-non-vaginal sexual acts between persons,
including anal sex and oral sex, at a time when
transgender ·persons were also typically associated with
the prescribed sexual practices. [Paras 16, 17] [170-F-G;
171-D-E]
G
Suresh Kumar Koshal and Anr. v. Naz Foundation and
Ors. (2014) 1 sec 1 - relied on.
Queen Empress v. Khairati (1884) ILR 6 All 20 - referred
to.
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 127
OF INDIA AND OTHERS
GENDER IDENTITY AND SEXUAL ORIENTATION A
3.1 Gender identity is one of the most-fundamental
aspects of life which refers to a person's intrinsic sense
of being male, female or transgender or transsexual
person. A person's sex is usually assigned at birth, but
8
a relatively small group of persons are born with bodies
which incorporate both or certain aspects of both male
and female physiology. At times, genital anatomy
problems may arise in certain persons, their innate
perception of themselves, is not in conformity with the
sex assigned to them at birth and may include pre and C
post-operative transsexual persons and also persons
who do not choose to undergo or do not have access to
operation and also include persons who cannot undergo
successful operation. Countries, all over the world,
including India, are grappled with the question of D
attribution of gender to persons who believe that they
belong to the opposite sex. Few persons undertake
surgical and other procedures to alter their bodies and
physical appearance to acquire gender characteristics of
the sex which conform to their perception of gender, E
leading to legal and social complications since official
record of their gender at birth is found to be at variance
with the assumed gender identity. Gender identity refers·
to each person's deeply felt internal and individual
experience of gender, which may or may not correspond F
with the sex assigned at birth, including the personal
sense of the body which may involve a freely 'chosen,
modification of bodily appearance or functions by
medical, surgical or other means and other expressions
of gender, including dress, speech and mannerisms. G
Gender identity, therefore, refers to an individual's self-
identification as a man, woman, transgender or other
identified category. [Para 19] [172-E-H; 173-A-C]
3.2 Sexual orientation refers·to an individual's
enduring physical, romantic and/or emotional attraction H
128 SUPREME COURT REPORTS [2014] 5 S.C.R.
A to another person. Sexual orientation i11cludes
transgender and gender-variant people with heavy
sexual orientation and their sexual orientation may or
may not change during or after gender transmission,
which also includes homo-sexuals, bysexuals,
B heterosexuals, asexual etc. Gender identity and sexual
orientation are different concepts. Each person's self-
defined sexual orientation and gender identity is integral
to their personality and is one of the most basic aspects
of self-determination, dignity and freedom and no one
c shall be forced to undergo medical procedures, including
SRS, sterilization or hormonal therapy, as a requirement
for legal recognition of their gender identity. [Para 20]
[173-C-F]
UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES
D - ON GENDER IDENTITY AND SEXUAL ORIENTATION
4.1. United Nations has been instrumental in
advocating the protection and promotion of rights of
sexual minorities, including transgender persons. Article
E 6 of the Universal Declaration of Human Rights, 1948 and
Article 16 of the International Covenant on Civil and
Political Rights, 1966 (ICCPR) recognize that every
human being has the inherent right to live and this right
shall be protected by law and that no one shall be
F arbitrarily denied of that right. Everyone shall have a right
to recognition, everywhere as a person before the law.
Article ·17 of the ICCPR states that no one shall be
subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful
G attacks on his honour and reputation and that everyone
has the right to protection of law against such
interference or attacks. International Commission of
Jurists and the International Service for Human Rights
on behalf of a coalition of human rights organizations,
took a project to develop a set of international legal
H principles on the application of international law to
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 129
OF INDIA AND OTHERS
human rights violations based on sexual orientation and A
sexual identity to bring greater clarity and coherence to
State's human rights obligations. A distinguished group
of human rights experts has drafted, developed,
discussed and reformed the principles in a meeting held
at Gadjah Mada University in Yogyakarta, Indonesia from B
6 to 9 November, 2006, which unanimously adopted the
Yogyakarta Principles on the application of International
Human Rights Law in relation to Sexual Orientation and
Gender Identity. Yogyakarta Principles address a broad
range of human rights standards and their application to c
issues of sexual orientation gender identity. [Para 21]
[173-G-H; 174-A-E]
4.2. UN bodies, Regional Human Rights Bodies,
National Courts, Government Commissions and the
Commissions for Human Rights, Council of Europe, etc. D
have endorsed the Yogyakarta Principles and have
considered them as an important tool for identifying the
obligations of States to respect, protect and fulfill the
human rights of all persons, regardless of their gender
identity. While examining the rights of transsexual E
persons, who have undergone SRS, the test to be
applied is not the "Biological test", but the
"Psychological test", because psychological factor and
thinking of transsexual has to be given primacy than
binary notion of gender of that person. Seldom people F
realize the discomfort, distress and psychological
trauma, they undergo and many of them undergo
"Gender Dysphoria' which may lead to mental disorder.
Discrimination faced by this group in the society, is rather
unimaginable and their rights have to be protected, .G
irrespective of chromosomal sex, genitals, assigned birth
sex, or implied gender role. [Paras 23, 34] [185-C-D; 192-
E-G]
Corbett v. ·Corbett (1970) 2 All ER 33; R v. Tan (1983) H
130 SUPREME COURT REPORTS [2014] 5 S.C.R.
A QB 1053, 1063-1064; Attorney-General v. Otahuhu Family
Court (1995) 1 NZLR 603; Re Kevin (Validity of Marriage of
Transsexual) (2001) Fam CA 1074; Attorney-General for the
Commonwealth & "Kevin and Jennifer" & Human Rights and
Equal Opportunity Commission (2003) Fam CA 94;
B Secretary, Department of Social Security v. "SRA" (1993) 43
FCR 299; Mathews, J. in R v. Harris & McGuiness (1988) 17
NSWLR 158; A.B. v. Western Australia (2011) HCA 42;
Bellinger v. Bellinger (2003) 2 All ER 593; Re JG, JG v.
Pengara/7 Jabatan Pendaftaran Negara (2006) 1 MLJ 90;
c Norrie v. NSW Registrar of Births, Deaths and Marriages
(2013) NSWCA 145 - referred to.
LEGISLATIONS IN OTHER COUNTRIES ON TGs
5.1. United Kingdom has passed the General
D Recommendation Act, 2004. The Act is all encompassing
as. not only does it provide legal recognition to the
acquired gender of a person, but it also lays down
provisions highlighting the consequences of the newly
acquired gender status on their legal rights and
E entitlements in various aspects such as marriage,
parentage, succession, social security and pensions etc.
One of the notable features of the Act is that it is not
necessary that a person needs to have undergone or in
the process of undergoing a' SRS to apply under the Act.
F The Equality Act, 2010 (UK) was consolidated, repealed
and replaced around nine different anti-discrimination
legislations including the Sex Discrimination Act, 1986.
The Act defines certain characteristics to be "protected
characteristics" and no one shall be discriminated or
treated less favourably on grounds that the person
G possesses one or more of the "protected characteristics".
The Act also imposes duties on Public Bodies to
eliminate all kinds of discrimination, harassment and
victimization. Gender reassignment has been declared as
one of the protected characteristics under the Act, of
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 131
OF INDIA AND OTHERS
course, only the transsexuals i.e. those who are A
proposing to undergo, is undergoing or has undergone
the process of the gender reassignment are protected
under the Act. [Para 35) [193-C-G]
5.2 In Australia, there are two Acts dealing with the
gender"identity, (i) Sex Discrimination Act, 1984; and (ii) B
Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and lntersex Status) Act, 2013 (Act 2013).
Act 2013 amends the Sex Discrimination Act, 1984. Act
2013 defines gender identity as the appearance or
mannerisms or other gender-related characteristics of a C
person (whether by way of medical intervention or not)
with or without regard to the person's designated sex at
birth. [Para 36) [193-H; 194-A-B]
5.3 European Parliament also adopted a resolution
on discrimination against transsexuals on 12th D
September, 1989 and called upon the Member States to
take steps for the protection of transsexual persons and
to pass legislation to further that end. Following that
Hungary has enacted Equal Treatment and the Promotion
of Equal Opportunities Act, 2003, which includes sexual E
identity as one of the grounds of discrimination. 2010
paper on 'Transgender Persons' Rights in the EU
Member States prepared by the Policy Department of the
European Parliament presents the specific situation of
transgender people in 27 Member States of the European F
Union. In the United States of America, some of the laws
enacted by the States are inconsistent with each other.
The Federal Law which provides protection to
transgender is Matthew Shepard and James Byrd. Jr.
Hate Crimes Prevention Act, 2009, which expands the G
scope of the 1969 United States Federal Hate-crime Law
by including offences motivated by actual or perceived
gender identity. Around 15 States and District of
Colombia in the United States have legislations which
H
132 SUPREME COURT REPORTS [2014] 5 S.C.R.
A prohibit discrimination on grounds of gender identity and
expression. [Para 38) [197-B-F]
5.4. The Parliament of South Africa in the year 2003,
enacted Alteration of Sex Description and Sex Status Act,
2003, which permits transgender persons who have
B undergone gender reassignment or people whose sexual
characteristics have evolved naturally or an intersexed
person to apply to the Director General of the National
Department of Home Affairs for alteration of his/her sex
description in the birth register, though the legislation
C does not contemplate a more inclusive definition of
transgenders. The Senate of Argentina in the year 2012
passed a law on Gender Identity that recognizes right by
all persons to the recognition of their gender identity as
well as free development of their person according to
D their gender identity and can also request that their
recorded sex be amended along with the changes in first
name and image, whenever they do not agree with the
self-perceived gender identity. In Germany, a new law
came into force on 5th November, 2013, which allows the
E parents to register the sex of the children as 'not
specified' in the case of children with intersex variation.
[Paras 39 to 41) [197-G-H; 198-A-C, E]
Indian Scenario
6.1 The recognition of "sex identity gender" of
F persons, and "guarantee to equality and non-
discrimination" on the ground of gender identity or
expression is increasing and gaining acceptance in
international law and, therefore, is to be applied in India
as well. Transgender people, as a whole, face multiple
G forms of oppression in this country. Discrimination is so
large and pronounced, especially in the field of health
care, employment, education, leave aside social
exclusion. A detailed study was conducted by the United
Nations Development Programme (UNDP - India) and
H submitted a report in December, 2010 on Hijras/
NAT.IONAL LEGAL SERVICES AUTHORITY v. UNION 133
OF INDIA AND OTHERS ,
transgenders in India: "HIV Human Rights and Social A
Exclusion". The Report stated that the HIV Human
Immunodeficiency Virus and Sexually Transmitted
Infections (STI) is now increasingly seen in Hijras/
transgenders population. The estimated size of men who
have sex with men (MSM) and male sex workers B
population in India (latter presumably includes Hijras/TG
communities) is 2,352,133 and 235,213 respectively. It
was stated that no reliable estimates are available for
Hijras/TG women. HIV prevalence among MSM
population was 7.4% against the overall adult HIV c
prevalence of 0.36%. It was stated recently Hijras/TG
people were included under the category of MSM in HIV
sentinel serosurveillance. It was also reported in recent
studies that Hijras/TG women have indicated a very high
HIV prevalence (17 .5% to 41 %) among them. Study 0
conducted by NACO also highlighted a pathetic situation.
Report submitted by NACI, NACP IV Working Group
Hijras TG dated 5.5.2011 indicated that transgenders are
extremely vulnerable to HIV. Both the reports highlighted
the extreme necessity of taking emergent steps to E
improve their sexual health, mental health and also
address the issue of social exclusion. [Paras 43, 45] [199-
A-B; 201-D-H; 202-A-B]
6.2. Social exclusion and discrimination on the
ground of gender stating that one does not conform to F
the binary gender (male/female) does prevail in India.
Discussion on gender identity including self-identification
of gender of male/female or as transgender mostly
focuses on those persons who are assigned male sex at
birth, whether one talks of Hijra transgender, woman or G
male or male to female transgender persons, while
concern voiced by those who are identified as female to
male trans-sexual persons often not properly addressed.
Female to male unlike Hijra/transgender persons are not
quite visible in public unlike Hijra/transgender persons. H
134 SUPREME COURT REPORTS [2014] 5 S.C.R.
A Many of them experience violence and discrimination
because of their sexual orientation or gender identity.
[Para 46] [204-A-C]
INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
B 7 .1. International Conventions and norms are
significant for the purpose of interpretation of gender
equality. Article 1 of the Universal declaration on Human
Rights, 1948, states that all human-beings are born free
and equal in dignity and rights. Article 3 of the Universal
C Declaration of Human Rights states that everyone has a
right to life, liberty and security of person. Article 6 of the
International Covenant on Civil and Political Rights, 1966
affirms that every human-being has the inherent right to
life, which right shall be protected by law and no one shall
D be arbitrarily deprived of his life. Article 5 of the Universal
Declaration of Human Rights and Article 7 of the
International Covenant on Civil and Political Rights
provide that no one shall be subjected to torture or to
cruel inhuman or degrading treatment or punishment.
E United Nations Convention against Torture and Other
Cruel Inhuman an·d Degrading Treatment or Punishment
(dated 24th Jam,1ary, 2008) specifically deals with
protection of individuals and groups made vulnerable by
discrimination or marginalization. Para 21 of the
F Convention states that States are obliged to protect from
torture or ill-treatment all persons regardless of sexual
orientation or transgender identity and to prohibit,
prevent and provide redress for torture and ill-treatment
1n all contests of State custody or control. Article 12 of
G the Universal Declaration of Human Rights and Article 17
of the International Covenant on Civil and Political Rights
state that no one shall be subjected to "arbitrary or
unlawful Interference with his privacy, family, home or
correspondence". Above-mentioned International Human
H Rights instruments which are being followed by various
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 135
OF INDIA AND OTHERS
countries in the world are aimed to protect the human A
rights of transgender people since it has been noticed
that transgenders/transsexuals often face serious human
rights violations, such as harassment in work place,
hospitals, places of public conveniences, market places,
theaters, railway stations, bus stands, and so on. [Paras B
47 and 48] [204-D-H; 205-A-D]
7.2. Indian Law, on the whole, only recognizes the
paradigm of binary genders of male and female, based on
a person's sex assigned by birth, which permits gender
system, including the law relating to marriage, adoption, C
inheritance, succession, taxation and welfare legislations.
Unfortunately there is no legislation in this country dealing
with the rights of transgender community. Due to the
absence of suitable legislation protecting the rights of the
members of the transgender community, they are facing D
discrimination in various areas and hence the necessity
to follow the International Conventions to which India is
a party and to give due respect to other non-binding
International Conventions and principles. Constitution
makers could not have envisaged that each and every E
human activity be guided, controlled, recognized· or
safeguarded by laws made by the legislature. Article 21
has been incorporated to safeguard those rights and a
Constitutional Court cannot be a mute spectator when
those rights are violated, but is expected to safeguard F
those rights knowing the pulse and feeling of that
community, though a minority, especially when their rights
have gained universal recognition and acceptance. [Para
49] [205-D-H; 206-A-B]
7.3 Article 253 of the Constitution of India states that G
the Parliament has the power to make any law for the
whole or any_ part of the territory of India for implementing
any treaty, agreement or convention. Generally, therefore,
a legislation is required for implementing the international
H
136 SUPREME COURT REPORTS [2014] 5 S.C.R.
A conventions, unlike the position in the United States of
America where the rules of international law are applied
by the municipal courts on the theory of their implied
adoption by the State, as a part of its own municipal law.
In the United States, however, it is open to the courts to
s supersede or modify international law in its application
or it may be controlled by the treaties entered into by the
United States. But, till an Act of Congress is passed, the
Court is bound by the law of nations, which is part of the
law of the land. Such a 'supremacy clause' is absent in
c Indian Constitution. Courts in India would apply the rules
of International law according to the principles of comity
of Nations, unless they are overridden by clear rules of
domestic law. India has ratified the above mentioned
covenants, hence, those covenants can be used by the
municipal courts as an aid to the Interpretation of Statutes
0
by applying the Doctrine of Harmonization. But, certainly,
if the Indian law is not in conflict with the International
covenants, particularly pertaining to human rights, to
which India is a party, the domestic court can apply those
principles in the Indian conditions. The Interpretation of
E International Conventions is governed by Articles 31 and
32 of the Vienna Convention on the Law of Treaties of
1969. [Paras 50 and 51] [206-C-D, F-H; 207-A-C]
7.4 Article 51 has to be read along with Article 253 of
F the Constitution. If the parliament has made any
legislation which is in conflict with the international law,
then Indian Courts are bountl to give effect to the Indian
Law, rather than the international law. However, in the
absence of a contrary legislation, municipal courts in
G India would respect the rules of international law. [Para
53] [207 -G-H]
7.5 Any international convention not inconsistent
with the fundamental rights and in harmony with its spirit
must be read into those provisions, e.g., Articles 14, 15,
H 19 and 21 of the Constitution to enlarge the meaning and
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 137
OF INDIA AND OTHERS
content thereof and to promote the object of A
constitutional guarantee. Principles on TGs and the
International Conventions, including Yogyakarta
principles, found not inconsistent with the various
fundamental rights guaranteed under the Indian
Constitution, must be recognized and followed, which B
has sufficient legal and historical justification in our
country. [Para 53] [208-E-G]
Gramophone Company of India Ltd. v. Birendra Bahadur
Pandey (1984) 2 SCC 534: 1984 (2) SCR 664; Tractor Export C
v. Tarapore & Co. (1969) 3 SCC 562:1970 (3) SCR 53; Mirza
Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR
391; Jolly George Varghese v. Bank of Cochin (1980) 2 SCC
360: 1980 (2) SCR 913; His Holiness Kesavananda Bharati
Sripadavalvaru v. State of Kera/a (1973) 4 SCC 225:1973 (0)
Suppl. SCR 1; Apparel Export Promotion Council v. A. K. D
Chopra (1999) 1 SCC_759; Githa Hariharan (Ms) and another
v. Reserve Bank of India and Anr. (1999) 2 SCC 228: 1999
(1) SCR 669; R.D. Upadhyay v. State of Andhra Pradesh and
others (2007) 15 SCC 337: 2006 (3) SCR 1132; People's
Union for Civil Liberties v. Union of India and Anr. (~005) 2 E
sec 436: 2005 (1) SCR 494; Vishaka and Ors. v. State of
Rajasthan and Others (1997) 6 SCC 241: 1997 (3) Suppl.
SCR 404 - relied on.
ARTICLE 14 AND TRANSGENDERS F
8.1 Article 14 of the Constitution of India states that
the State shall not deny to "any person" equality before
the law or the equal protection of the laws within the
territory of India. Equality includes the full and equal
enjoyment of all rights and freedom. Right to equality has G
been declared as the basic feature of the Constitution and
treatment of equals as unequals or unequals as equals .
will be violative of the basic structure of the Constitution.
Article 14 also ensures equal protection and hence a
positive obligation on the State to ensure equal H
138 SUPREME COURT REPORTS [2014} 5 S.C.R.
A protection of laws by bringing in necessary social and
economic changes, so that everyone including TGs may
enjoy equal protection of laws and nobody is denied
such protection. Article 14 does not restrict the word
'person' and its application only to male or female. Hijras/
B transgender persons who are neither male/female fall
within the expression 'person' and, hence, entitled to
legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as
equal civil and citizenship rights, as enjo~1ed by any other
c citizen of this country. [Para 54] (208-H; 209-A·:D]
ARTICLES f5 & 16 AND TRANSGENDERS
8.2. Articles 15 and 16 prohibit discrimination against
any citizen on certain enumerated grounds, including the
D ground of 'sex'. In fact, both the Articles prohibit all forms
of gender bias and gender based discrimination. Article
15 states that the State shall not discriminate against any
citizen, inter alia, on the ground of sex, with regard to (a)
access to shops, public restaurants, hotels and places
E of public entertainment; or (b) 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. The requirement of taking
affirmative action for the advancement of any socially and
F educationally backward classes of citizens is also
provided in this Article. Article 16 states that there shall
be equality of opportunities for all the citizens in matters
relating to employment or appointment to any office
under the State. Article 16 not only prohibits
G discrimination on the ground of sex in public
employment, but also imposes a duty on the State to
ensure that all citizens are treated equally in matters
relating to employment and appointment by the State.
[Paras 56, 57 and 58] [210-C-H; 211-A]
NATIONAL LEGAL SERVICES AUTHORITY v. UNION . 139
OF INDIA AND OTHERS
8.3 Constitution makers gave emphasis to the A
fundamental right against sex discrimination so as to
prevent the direct or indirect attitude to treat people
differently, for the reason of not being in conformity with
stereotypical generalizations of binary genders. Both
gender and biological attributes constitute distinct B
components of sex. Biological characteristics, of course,
include genitals, chromosomes and secondary sexual
features, but gender attributes include one's self image,
the deep psychological or emotional sense of sexual
identity and character. The discrimination on the ground c
of 'sex' under Articles 15 and 16, therefore, includes
discrimination on the ground of gender identity. The
expression 'sex' used in Articles 15 and 16 is not just
limited to biological sex of male or female, but intended
to include people who consider themselves to be neither
0
male or female. [Para 59] [211-B-E]
8.4 TGs have been systematically denied the rights
under Article 15(2) that is not to be subjected to any
disability, liability, restriction or condition in regard to
access. to public places. TGs have also not be.en afforded E
special provisions envisaged under Article 1'5(4) for the
advancement of the socially and educationally backward
classes (SEBC) of citizens, which they are, and hence
legally entitled and eligible to get the benefits of SEBC.
State is bound to take some affirmative action for their F
advancement so that the injustice done to them for
centuries could be remedied. TGs are also entitled to
enjoy economic, social, cultural and political rights
without discrimination, because forms of discrimination
on the ground of gender are violative of fundamental G
freedoms and human rights. TGs have also been· denied
rights under Article 16(2) and discriminated against in
respect of employment or office under the State on the
ground of sex. TGs are also entitled to reservation in the
matter of appointment, as envisaged under Article 16(4) H
140 SUPREME COURT REPORTS [2014] 5 S.C.R.
A of the Constitution. State is bound to take affirmative
action to give them due representation in public services.
Articles 15(2) to (4) and Article 16(4) read with the Directive
Principles of State Policy and various international
instruments to which India is a party, call for social
B equality, which the TGs could realize, only if facilities and
opportunities are extended to them so that they can also
live with dignity and equal status with other genders.
[Paras 60 and 61] [211-F-H; 212-A-C]
C ARTICLE 19(1 )(a) AND TRANSGENDERS
8.5 Article 19(1) of the Constitution guarantees
certain fundamental rights, subject to the power of the
State to impose restrictions from exercise of those rights.
The rights conferred by Article 19 are not available to any
D person who is not a citizen of India. Article 19(1)
guarantees those great basic rights which are recognized
and guaranteed as the natural rights inherent in the
status of the citizen of a free country. Article 19(1 )(a) of
the Constitution states that all citizens shall have the right
E to freedom of speech and expression, which includes
one'§ right to expression of his self-identified gender.
Self-identified gender can be expressed through dress,
words, action or behavior or any other form. No
restriction can be placed on one's personal appearance
F or choice of dressing, subject to the restrictions
contained in Article 19(2) of the Constitution. [Para 62]
(212-D-F]
City of Chicago v. Wilson et al. 75 lll.2d 525(1978); Doe
v. Yunits et al. 2000 WL33162199 (Mass. Super.) - referred
G to.
8.6. The freedom of expression guaranteed unJer
Article 19(1)(a) includes the freedom to express one's
chosen gender identity through varied ways and means
H by way of expression, speech, mannerism, clothing etc.
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 141
OF INDIA AND OTHERS
Gender identity, therefore, lies at the core of one's A
personal identity, gender expression and presentation
and, therefore, it will have to be protected under Article
19(1 )(a) of the Constitution of India. A transgender's
personality could be expressed by the transgender's
behavior and presentation. State cannot prohibit, restrict B
or interfere with a transgender's expression of such
personality, which reflects that inherent personality.
Often the State and its authorities either due to ignorance
or otherwise fail to digest the innate character and
identity of such persons. The values of privacy, self- c
identity, autonomy and personal integrity are
fundamental rights guaranteed to members of the
transgender community under Article 19(1)(a) of the
Constitution of India and the State is bound to protect
and recognize those rights. [Paras 65 and 66] [213-E-H; D
214-A]
ARTICLE 21 AND THE TRANSGENDERS
8.7. Article 21 is the heart and soul of the Indian
Constitution, which speaks of the rights to life and E
personal liberty. Right to life is one of the basic
fundamental. rights and not even the State has the
authority to violate or take away that right. Article 21 takes
all those aspects of life which go to make a person's life
meaningful. Article 21 protects the dignity of human life, F
one's personal autonomy, one's right to privacy, etc.
Right to dignity has been recognized to be an essential
part of the right to life and accrues to all persons on
account of being humans. The right to dignity forms an
essential part of our constitutional culture which seeks G
to ensure the full development and evolution of persons
and includes "expressing oneself in diverse forms, freely
moving about and mixing and comingling with fellow
human beings". [Para 67] [214-C-F]
H
142 SUPREME COURT REPORTS [2014] 5 S.C.R.
A Francis Coralie Mullin v. Administrator, Ur:1on Territory
of Delhi (1981) 1 sec 608: 1981 (2) SCR 516 • relied on.
8.8. Recognition of one's gender identity lies at th~
heart of the fundamental right to dignity. Gender
constitutes the core of one's sense of being as well as
8
an integral part of a person's identity. Legal recognition
of gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution Article 21
guarantees the protection of "personal autonomy" of an
C individual. Self-determination of gender is an integral part
of personal autonomy and self-expression and falls
within the realm of personal liberty guaranteed under
Article 21 of the Constitution of India. [Paras 68 and 69]
[214-F-H; 215-8]
D Anuj Garg v. Hotel Association of India (2008) 3 SCC
1 :2007 (12) SCR 991 • relied on ..
LEGAL RECOGNITION OF THIRDITRANSGENDER
IDENTITY
E 9. Self-identified gender can be either male or female
or a third gender. Hijras are identified as persons of third
gender and are not identified either as male or female.
Gender identity, refers to a person's internal sense of
being male, female or a transgender, for example Hijras
F do not identify as female because of their lack of female
genitalia or 1.ack of reproductive capability. T,his
distinction makes them separate from both male and
female genders and they consider themselves neither
man nor woman, but a "third gender". Hijras, therefore,
G belong to a distinct socio-religious and cultural group
and have, therefore, to be considered as a "third gender",
apart from male and female. State of Punjab has treated
all TGs as male which is not legally sustainable. State of
Tamil Nadu has taken lot of welfare measures to
H safeguard the rights of TGs. Few States like Keral3,
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 143
OF INDIA AND OTHERS
Tripura, Bihar have referred TGs as "third gender or sex". A
Certain States recognize them as "third category". Few
benefits have also been extended by certain other States.
Our neighbouring countries have also upheld their
fundamental rights and right to live with dignity. Article
21 protects one's right of self-determination of the gender B
to which a person belongs. Determination of gender to
which a person belongs is to be decided by the person
concerned. In other words, gender identity is integral to
the dignity of an individual and is at the core of "personal
autonomy" and "self-determination". Hijras/Eunuchs, c
therefore, have to be considered as Third Gender, over
and above binary genders under our Constitution and the
laws. Articles 14, 15, 16, 19 and 21 would indicate, do not
exclude Hijras/Transgenders from its ambit, but Indian
law on the whole recognize the paradigm of binary 0
genders of male and female, based on one's biological
sex. The Corbett principle of "Biological Test", cannot be
accepted rather what is accepted is the psyche of the
person in determining sex and gender and the
"Psychological Test" instead of "Biological Test". Binary E
notion of gender reflects in the Indian Penal Code, for
example, Section 8, 10, etc. and also in the laws related
to marriage, adoption, divorce, inheritance, succession
and other welfare legislations like NAREGA, 2005, etc.
Non-recognition of the identity of Hijras/Transgenders in
the various legislations denies them equal protection of F
law and they, face wide-spread discrimination. Artic;:le 14
has used the expression "person" and the Article 15 has
used the expression "citizen" and "sex" so also Article
16. Article 19 has also used the expression "citizen".
Article 21 has used the expression "person". All these G
expressions, which are "gender neutral" ~vidently refer
to human-beings. Hence, they take within their sweep
Hijras/Ti'ansgenders and are not as such limited to male
or female gender. Gender identity forms the core of one's
personal self, based on self identification, not on surgical H
144 SUPREME COURT REPORTS [2014] 5 S.C.R.
A or medical procedure. Gender identity is an int&gral part
of sex and no citizen can be discriminated on the ground
of gender identity, including those who identify as third
gender. Discrimination on the basis of sexual orientation
or gender identity includes any discrimination, exclusion,
B restriction or preference, which has the effect of nullifying
or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution. (Paras 70, 74
to 77] (215-C-G; 216-H; 217-A-H; 218-A-B]
C Per A.K. SIKRI, J.
1. Indubitably, the issue of choice of gender identity
has all the trappings of a human rights. The issue is not
limited to the exercise of choice of gender/sex. Many
rights which flow from this choice also come into play,
O inasmuch not giving them the status of a third gender
results in depriving the community of TGs of many of
their valuable rights and privileges which other persons
enjoy as citizens of this Country. There is also deprivation
of social and cultural participation which results into
E eclipsing their access to education and health services.
[Para 81] [218-H; 219-A-C]
2. Re: Right of a person to have the gender of his/
her choice.
F 2.1. When a child is born, at the time of birth itself,
sex is assi$Jned to him/her. A child would be treated with
that sex thereafter, i.e. either a male or a female. However,
some persons, though relatively very small in number,
may be born with bodies which incorporate both or
G certain aspects of both male or female physiology. It may
also happen that though a person is born as a male,
because of some genital anatomy problems his innate
perception may be that of a female and all his actions
would be female oriented. The position may be exactly
H the opposite wherein a person born as female may
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 145
OF INDIA AND OTHERS
behave like a male person. In earlier times though one A
could observe such characteristics, at the same time the
underlying rationale or reason behind such a behavior
was not known. Over a period of time, with in depth study
and research of such physical and psychological factors
behaviour, the causes of this behav;our have become 8
discernable which in turn, has led to some changes in
societal norms. Society has started accepting, though
slowly, the behavioral norms of.such persons without
treating it as abnormal. Further, medical science has
leaped forward to such an extent that even physiology c
appearance of a person can be changed through surgical
procedures, from male to female and vice-versa. In this
way, such persons are able to acquire the body which is
in conformity with the perception of their gender/gender
characteristics. In order to ensure that law also keeps 0
pace with the aforesaid progress in medical science,
various countries have come out with Legislation
conferring rights on such persons to recognize their
gender identity based .on reassigned sex after
undergoing Sex Re-Assignment Surgery (SRS). [Paras 82
E
to 83] [219-G-H; 220-A-F]
2.2. The most important lesson which was learnt as
a result of Second World War was the realization by the
Governments of various countries about the human
dignity which needed to be cherished and protected. It F
is for this reason that in the U.N.Charter, 1945, adopted
immediately after the Second World War, dignity of the
individuals was mentioned as of core value. The almost
contemporaneous Universal Declaration of Human
Rights (1948) echoed same sentiments. The human rights G
are individual and have a definite linkage of human
development, both sharing common vision and with a
common purpos('1. Respect for human rights is the root
for human development and realization of full potential
of each individual, which in turn leads to the H
146 SUPREME COURT REPORTS [2014] 5 S.C.R.
A augmentation of human resources with progress of the
nation. Empowerment of the people through human
development is the aim of human rights. There is thus a
universal recognition that human rights are rights that
"belong" to every person, and do not depend on the
B specifics of the individual or the relationship between the
right-holder and the right-grantor. Moreover, human
rights exist irrespective of the question whether they are
granted or recognized by the legal and social system
within which we live. They are devices to evaluate these
c existing arrangements: ideally, these arrangements
should not violate human rights. In other words, human
rights are moral, pre-legal rights. They are not granted by
people nor can they be taken away by them. [Paras 85
and 86] [221-8-G]
D 2.3. In international human rights law, equality is
found upon two complementary principles: non-
discrimination and reasonable differentiation. The
principle of non-discrimination seeks to ensure that all
persons can equally enjoy and exercise all their rights
E and freedoms. Discriminatiqn occurs due to arbitrary
denial of opportunities for equal participation. For
example, when public facilities and services are set on
standards out of the reach of the TGs, it leads to
exclusion and denial of rights. Equality not only implies
F preventing discrimination (example, the protection of
individuals against unfavourable treatment by
introducing anti- discrimination laws), but goes beyond
in remedying discrimination against groups suffering
systematic discrimination in society. In concrete terms,
G it means embracing the notion of positive rights,
affirmative action and reasonable accommodation.
Nevertheless, the Universal Declaration of Human Rights
recognizes that all human beings are born free and equal
in dignity and rights and, since the Covenant's
H provisions apply fully to all members of society, persons
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 147
OF INDIA ANO OTHERS
with disabilities are clearly entitled to the full range of A
rights recognized in the Covenant. Moreover, the
requirement contained in Article 2 of the Covenant that
the rights enunciated will be exercised without
discrimination of any kind based on certain specified
grounds or other status clearly applies to cover persons B
with disabilities. India attained independence within two
years of adoption of the U.N. Charter and it was but
natural that such a Bill of Rights would assume prime
importance insofar as thinking of the members of the
Constituent Assembly goes. In addition to the c
fundamental rights, Constitution makers also deemed it
proper to impose certain obligations on the State in the
form of "Directive Principles of State Policy" (Part-IV) as
a mark of good governance. It is this part which provides
an ideal and purpose to our Constitution and delineates 0
certain principles which. are fundamental in the
governance of the country. [Par~s 88 to 90] [221-H; 222-
A-H; 223-A-B]
2.4. The basic spirit of our Constitution is to provide
each and every person of .the nation equal opportunity E
to grow as a human being, irrespective of race, caste,
religion, community and social status. Granville Austin
while analyzing the functioning of Indian Constitution in
first 50 years described three distinguished strands of
Indian Constitution: (i) protecting national unity and F
integrity, (ii) establishing the institution and spirit of
democracy; and (iii) fostering social reforms. The Strands
are mutually dependent, and inextricably intertwined in
what he elegantly describes as "a seamless web". And
there cannot be social reforms till it is ensured that each G
and every citizen of this country is able to exploit his/her
potentials to the maximum. The Constitution, although
drafted by the Constituent Assembly, was meant for the
people of India and that is why it is given by the people
to themselves as expressed in the opening words "We H
148 SUPREME COURT REPORTS [2014] 5 S.C.R.
A the People". What is the most important gift to the
common person given by this Constitution is
"fundamental rights" which may be called Hun:ian Rights
as well. The concept of equality in Article 14 so also the
meaning of the words 'life', 'liberty' and 'law' in Article 21
B have been considerably enlarged by judicial decisions.
Anything which is not 'reasonable, just and fair' is not
treated to be equal and is, therefore, violative of Article
14. [Paras 91 and 92] [223-E-H; 224-A-B]
State of Karnataka v. Rangnatha Reddy AIR 1978 SC
C 215; Sheela Barse v. Union of India (1986) 3 SCC 596: 1986
(3) SCR 443; Mehta M. C. v. Union of India (1987) 4 SCC
463: 1988 (1) SCR 279; Kalidas v. State of J&K (1987) 3
SCC 430; Vincent Panikurlangara v. Union of India AIR 1987
SC 990: 1987 (2) SCR 468; Reghubir Singh v. State of Bihar
D AIR 1987 SC 149:1986 (3) SCR 802; Aeltemesh Rein v.
Union of India AIR 1988 SC 1768: 1988 (2) Suppl. SCR 223;
Parmanand Katara v. Union of India AIR 1989 SC 2039: 1989
(3) SCR 997; Kishen v. State of Orissa, AIR 1989 SC
677:1989 (1) SCR 57; Reliance Petrochemicals Ltd. v. Indian
E Express Newspapers Born.bay Pvt. Ltd. AIR 1989 SC 190:
1988 (3) Suppl. SCR 212; Kehar Singh v. State (Delhi
Admn.) AIR 1988 SC 1883:1988 (2) Suppl. SCR 24; Vikram
Oeo Singh Tamar v. State of Bihar AIR 1988 SC 1782: 1988
Suppl. SCR 755 - relied on.
F
2.5. A most remarkable feature of this expansion of
Art.21 is that many of the non-justiciable Directive
Principles embodied in Part IV of the Constitution have
now been resurrected as enforceable fundamental rights
G by the magic wand of judicial activism, playing on Art.21
e.g. right to pollution-free water and air; right to a
reasonable residence; right to food, clothing, decent
environment and even protection of cultural heritage;
right of every child to a full development; right of
residents of hilly-areas to access to roads; right to
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 149
OF INDIA AND OTHERS
education. A corollary of this development is that while A
so long the negative language of Art.21 and use of the
word 'deprived' was supposed to impose upon the State
I '
the negative duty not to interfere with the life or liberty of
an individual without the sanction of law, the width and
amplitude of this provision has now imposed a positive B.
obligation upon the State to take steps for ensuring to the
individual a better enjoyment of his life and dignity, e.g.
maintenance and improvement of public health;
elimination of water and air pollution; improvement of
means of communication; rehabilitation of bonded c
labourers; providing human conditions if prisons;
providing hygienic condition in a slaughter-house. [Paras
95, 96] [225-C-H; 226-A-F]
Subhash Kumar v. State of Bihar, AIR 1991 SC 420:
1991 (1) SCR 5; Shantistar Builders v. Narayan Khimalal D
Totame AIR 1990 SC 630; Ram Sharan Autyanuprasi v. UOI
AIR 1989 SC 549:1988 (3) Suppl. SCR 870; Shantistar
Builders v. Narayan Khimalal Totame AIR 1990 SC 630;
State of H.P. v. Umed Ram Sharma AIR 1986 SC 847:1986
(1) SCR 251; Mohini Jain v. State of Kamataka AIR 1992 SC E
1858:1992 (3) SCR 6S8; Unni Krishnan J.P. v. State of
AP.AIR 1993 SC 2178:1993 (1) SCR 594; Vincent
Panikurlangara v. UOI AIR 1987 SC 990: 1987 (2)" SCR 468;
Mehta M.C. v. UOI (1987) 4 sec 463: 1988 (1) SCR 279;
State of H.P. v. Umed Ram Sharma AIR 1986 SC 847: 1986 F
(1) SCR 251; Bandhuva Mukti Morcha v. UOI AIR 1984 SC
802 :1984 (2) SCR 67; Sher Singh v. State of Punjab AIR
1983 SC 465: 1983 (2) SCR 582; Sheela Barse v. UOI
(1986) 3 SCC 596 : 1986 (3) SCR 443; Buffalo Traders
Welfare Ass. v. Maneka Gandhi (1994) Suppl (3) SCC 448 - G
relied on.
2.6. The concepts of justice, social, economic and
political, equality of status and of opportunity and of
assuring dignity of the individual incorporated in the H
150 SUPREME COURT REPORTS (2014] 5 S.C.R.
A Preamble, clearly recognize the right of one and all
amongst the citizens of these basic essentials designed
to flower the citizen's personality to its fullest. The
concept of equality helps the citizens in reaching their
highest potential. Thus, the emphasis is on the
B development of an individual in all respects. The basic
principle of the dignity and freedom of the individual is
common to all nations, particularly those having
democratic set up. Democracy requires us to respect and
develop the free spirit of human being which is
c responsible for all progress in human history.
Democracy is also a method by which we attempt to
raise the living standard of the people and to give
opportunities to every person to develop his/her
personality. It is founded on peaceful co-existence and
cooperative living. If democracy is based on the
0
recognition of the individuality and dignity of man, as a
fortiori we have to recognize the right of a human being
to choose his sex/gender identity which is integral his/
her personality and is one of the most basic aspect of
E self-determination dignity and freedom. In fact, there is a
growing recognition that the true measure of
development of a nation is not economic growth; it is
human dignity. More than 225 years ago, Immanuel Kant
propounded the doctrine of free will, namely the free
willing individual as a natural law ideal. The concepts of
F volition and freedom are "pure", that i~ not drawn from
experience. They are independent Qf any particular body
of moral or legal rules. They are presuppositions of all
such rules, valid and necessary for all of them. [Paras 98
to 100] [226-G-H; 227-A-G]
G
2.7. Over a period of time, two divergent
interpretations of the Kantian criterion of justice came to
be discussed. One trend was an increasing stress on the
maximum of individual freedom of action as the end of
H law. This was criticized by the protagonist of 'hedonist
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 151
OF INDIA AND OTHERS
utilitarianism', notably Benthem. This school of thoughts A
laid emphasis on the welfare of the society rather than •
an individual by propounding the principle of maximum
of happiness to most of the people. Fortunately, in the
instant case, there is no such dichotomy between the
individual freedom/liberty as against public good. on-the B
contrary, granting the right to choose gender leads fo
public good. The second tendency of Kantian criterion
of justice was found in re-interpreting "freedom" in terms
not merely of absence of restraint but in terms. of
attainment of individual perfection. It is this latter trend -c
which holds good even today. In fact, the recognition that
every individual has fundamental right to achieve the
fullest potential, is founded on the principle that all round
growth of an individual leads to common publi_c good;·
After all, human beings are also valuable asset of any D
country who contribute to the growth and welfare of their
nation and the society. A person who is born with a
particular sex and is forced to grow up identifying with
that sex, and not a sex that his/her psychological
/
behavior identifies with, faces innumerable obstacles . in. E
growing up. Such a person, carrying dual entity•
simultaneously, would encounter mental and
psychological difficulties which would hinder his/her
normal mental and even physical growth. It is not even
easy for such a person to take a decision to undergo
SRS procedure which requires strong mental state of F
affairs. However, once that is decided ~nd the sex is
changed in tune with psychological behavior, it facilitates
spending the life smoothly. Even the process of
transition is not smooth. The transition from a man to a
woman is not an overnight process. It is a "painfully" G
long procedure that requires a lot of patience. A person
must first undergo hormone therapy and, if possible, live
as a member of the desired sex for a while. To b~ eligible
for hormone therapy, the person needs at least- two
psychiatrists to certify that he or she is mentally sound, R
152 SUPREME COURT REPORTS [2014] 5 S.C.R.
A and schizophrenia, depression and transvestism have to
be ruled out first. [Paras 101 to 103] [227-G-H; 228-A-C,
E-F; 229-8-D]
2.8. If a person has changed his/her sex in tune with
B his/her gender characteristics and perception which has
become possible because of the advancement in medical
science, and when· that is permitted by in medical ethics
with no legal embargo, there is no impediment, legal or
otherwise, in giving due recognition to the gender identity
C based on the reassign sex after undergoing SRS. Even
in the absence of any statutory regime in this country, a
person has a constitutional right to get the recognition
as male or female after SRS, which was not only his/her
gender characteristic but has become his/her physical
form as well. [Paras 105, 106] [230-C-D]
0
Re: Right of TG to be identified and categorized as "third
gender".
3.1. The term 'transgender' is used in a wider sense,
E in the present age. Even Gay, Lesbian, bisexual are
included by the descriptor 'transgender'. Etymologicatly,
the term 'transgender' is derived from two words, namely
'trans' and 'gender'. Former is a Latin word which means
'across' or 'beyond'. The grammatical meaning of
F 'transgender', therefore, is across or beyond gender. This
has come to be known as umbrella term which includes
Gay men, Lesbians, bisexuals, and cross dressers within
its scope. Transgender in India have assumed distinct
and separate class/category which is not prevalent in
other parts of the World except in some neighbouring
G countries. In this country, TG community comprise of
Hijaras, enunch, Kothis, Aravanis, Jogappas, Shiv-
Shakthis etc. In Indian community transgender are
referred as Hizra or the third gendered people. There
exists wide range of transgender-related identities,
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 153
OF INDIA AND OTHERS
cultures, or experience -including Hijras, Aravanis, A
Kothis, jogtas/Jogappas, and Shiv-Shakthis (Hijras: They
are biological males who reject their masculinity identity
in due course of time to identify either as women, or 'not
men'. Aravanis: Hijras in Tamil Nadu identify as 'Aravani'.
Kqthi: Kothis are heterogeneous grouR. Kothis can be B
described as biological males who show varying degrees
of 'feminity'. Jogtas/Jogappas: They are those who are
dedicated to serve as servant of Goddess Renukha Devi
whose temples are present in Maharashtra and
Karnataka. Sometimes, Jogti Hijras are used to denote c
such male-to-female transgender persons who are
devotees of Goddess Renukha and are also from the
Hijra community. Shiv-Shakthis: They are considered as
males who are possessed by or particularly close to a
goddess and who have feminine gender expression). The 0
way they behave and act differs from the normative
gender role of a men and women. For them, furthering life
is far more difficult since such people are neither
categorized as men nor women and this deviation is
unacceptable to society's vast majority. Endeavour to live E
a life with dignity is even worse. Obviously transvestites,
the hijra beg from merchants who quickly, under threat
of obscene abuse, respond to the silent demands of
such detested individuals. On occasion, especially
festival days, they press their claims with boisterous and
ribald singing and dancing. [Paras 107, 108] [220-E-H; F
221-A-F]
3.2. By recognizing such TGs as third gender, they
would be able to enjoy their human rights, to which they
are largely deprived of for want of this recognition. The G
issue of transgender is not merely a social or medical
issue but there is a need to adopt human right approach
towards transgenders which may focus on functioning
as an interaction between a person and their
environment highlighting the role of society and changing H
154 SUPREME COURT REPORTS [2014] 5 S.C.R.
A the stigma attached to them. TGs face many
disadvantages due to various reasons, particularly for
gender abnormality which in certain level needs to
physical and mental disability. Up till recently they were
subjected to cruelty, pity or charity. Fortunately, there is
B a paradigm shift in thinking from the said approach to a
rights based approach. Though, this may be the thinking
of human rights activist, the society has not kept pace
with this shift. There appears to be limited public
knowledge and understanding of same-sex sexual
c orientation and people whose gender identity and
expression are incongruent with their biological sex. As
a result of this approach, such persons are socially
excluded from the mainstream of the society and they are
denied equal access to those fundamental rights and
freedoms that the other people enjoy freely. [Para 111]
0
[233-A-E]
3.3. Some of the common and reported problem that
transgender most commonly suffer are: harassment by
the police in public places, harassment at home, police
E entrapment.. rape, discriminations, abuse in public places.
The other major problems that the transgender people
face in their daily life are discrimination, lack of
educational facilities, lack of medical facilities,
homelessness, unemployment, ·depression, hormone pill
F abuse, tobacco and alcohol abuse, and problems related
to marriage and adoption. In spite of the adoption of
Universal Declaration of Ruman Rights (UDHR) in the
year 1948, the inherent dignity, equality, respect and
rights of all human beings throughout the world, the
G transgender are denied basic human rights. This denial
is premised on a prevalent juridical assumption that the
law should target discrimination based on sex (i.e.,
whether a person is anatomically male or female), rather
than gender (i.e., whether a person has qualities that
H society consider masculine or feminine (Katherine
NATIONAL LEGAL SERVICES AUTHORITY v: UNION 155
OF INDIA AND OTHERS
M.Franke, The Central Mistake of Sex Discrimination Law: A
'
the Disaggregation of Se~ from Gender, 144 U.Pa.Rev.1,3
(1995) (arguing that by defining sex in biological terms,
the law has failed to distinguish sex from gender, and
sexual differentiation from sex ! discrimination).
Transgender people are generally excluded from the 8
society and people think transgenderism as a medical
disease. Much like the disability, which in earlier times
was considered as ~n Jllness but later on looked upon
as a right based approach. The question whether
transgenderism is a disease is hotly debated in both the C
transgender and medical-psychiatric communities. But a
prevalent view regarding this is that transgenderism is
not a disease at all, but a benign normal variant of the
human experience akin to left-handedness. Therefore,
gender identification becomes very essential component
which is required for enjoying civil rights by this 0
community. It is only with this recognition that many rights
attached to the sexual recognition as 'third gender' would
be available to this community more meaningfully viz. the
right to vote, the right to own property, the right to marry,
the right to claim a formal identity through a passport and l=
a ration card, a driver's license, the right to education,
employment, health so on. [Paras 112 and 113] [233-F-H;
234-A-F]
3.4. Further, there seems to be no reason why a F
transgender must be denied of basic human rights which
includes right to life and liberty with dignity, right to
privacy and freedom of expression, right to education
and empowerment, right against violence, right against
exploitation and right against discrimination. Constitution G
has fulfilled its duty of providing rights to transgenders.
Now it's time to recognize this and to extend and interpret
the Constitution in such a manner to ensure a dignified
life of transgender people. All this can be achieved if the
beginning is made with the recognition that TG as third
H
156 SUPREME COURT REPORTS [2014] 5 S.C.R.
A gender. In order to translate the said rights of TGs into
reality, it becomes imperative to first assign them their
proper 'sex'. At the time of birth of a child itself, sex is
assigned. However, it is either male or female. In the
process, the society as well as law, has completely
8 ignored the basic human right of TGs to give them their
appropriate sex categorization. Up to now, they have
either been treated as male or female. This is not only
improper as it is far from truth, but indignified to these
TGs and violates their human rights. Though there may
C not be any statutory regime recognizing 'third gender' for
these TGs. However, there is enough justification to
recognize this right of theirs in natural law sphere.
Further, such a justification can be traced to the various
provisions contained in Part Ill of the Constitution relating
to 'Fundamental Rights'. [Paras 114, 115 and 116] [234-
D G-H; 235-A-D]
3.5. We are in the age of democracy, that too
substantive and liberal democracy. Such a democracy is
not based solely on the rule of people through their
E repres~ntatives' namely formal democracy. !t also has
other "percepts like Rule of Law, human rights,
independence of judiciary, separation of powers etc.
There is a recognition to the hard realty that without
protection for human rights there can be no democracy
F and no justification for democracy. In this scenario, while
working within the realm of separation of powers (which
is also fundamental to the substantive democracy), the
judicial role is not only to decide the dispute before the
Court, but to uphold the rule of law and ensure access
G to justice to the marginalized section of the society. It
cannot be denied that TGs belong to the unprivileged
class which is a marginalized section. The role of the
Court is to understand the central purpose and theme of
the Constitution for the welfare of the society. Our
H Constitution, like the law of the society, is a living
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 157
OF INDIA AND OTHERS
organism. It is based on a factual and social realty that A
is constantly changing. Sometimes a change in the law
precedes societal, change and is even intended to
stimulate it. Sometimes, a change in the law is the result
in the social realty. As TGs in India, are neither male nor
female, treating them as belonging to either of the · 8
categories, is the denial of these constitutional rights. It
is the denial of social justice which in turn has the effect
of-denying political and economic justice. [Paras 117, 118
and 119] [235-E-H; 236-A-C]
Dattatraya Govind Mahajan vs. State of Maharashtra AIR
c
1977 SC 915: 1977 (2) SCR 790 - relied on.
3.6. The life of law is not just logic or experience. The
life of law is renewable based on experience and logic,
which adapted law to the new social realty'. Recognizing D
this fact, the provisions of the Constitution are required
to be given new and dynamic meaning with the inclusion
of rights of TGs as well. In this process, the first and
foremost right is to recognize TGs as 'third gender' in law
as well. This is a recognition of their right of equality E
ensh'i"ined in Art.14 as well as their humah right to life
with dignity, which is the mandate of the Art.21 of the
Constitution. This interpretation is in consonance with
new social needs. By doing so, this Court is only bridging
the gap between the law and life and that is the primary F
role of the Court in a democracy. It only amounts to
givihg purposive interpretation to the provisions of the
Constitution so that it can adapt to the changes in realty.
Law without purpose has no raison d'etre. The purpose
of law is the evolution of a happy society. [Para 121] [236- G
H; 237-A-D]
3.7. It is now very well recognized that the
Constitution is a living character; its interpretation must
be dynamic. It must be understood in a way that intricate
H
158 SUPREME COURT REPORTS [2014] 5 S.C.R.
A and advances modern realty. The judiciary 1s the
guardian of the Constitution and by ensuring to grant
legitimate right that is due to TGs, the court protect the
Constitution and the democracy inasmuch as judicial
protection and democracy in general and of human rights
B in particular is a characteristic of our vibrant democracy.
Constitution inheres liberal and substantive democracy
with rule of law as an important and fundamental pillar. It
has its own internal morality based on dignity and
equality of all human beings. Rule of law demands
c protection of individual human rights. Such rights are to
be guaranteed to each and every human being. These
TGs, even though insignificant in numbers, are still
human beings and therefore they have every right to
enjoy their human rights. [Para 122 and 123] [237-F-H;
D 238-A-B]
National Human Rights Commission vs. State of
Arunachal Pradesh AIR 1996 SC 1234 - relied on.
3.8. The rule of law is not merely public order. The
E rule of law is social justice based on public order. The law
exists to ensure proper social life. Social life, however, is
not a goal in itself but a means to allow the individual to
life in dignity and development himself. The human being
and human rights underlie this substantive perception of
F the rule of law, with a proper balance among the different
rights and between human rights and the proper needs
of society. The substantive rule of law "is the rule of
proper law, which balances the needs of society and the
individual." This is the rule of law that strikes a balance
G between society's need for political independence, social
equality, economic development, and internal order, on
the one hand, and the needs of the individual, his
personal liberty, and his human dignity on the other. It is
the duty of the Court to protect this rich concept of the
rule of law. By recognizing TGs as third gender, this
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION ·159
OF INDIA AND OTHERS
Court is not only upholding the rule of law but also A
advancing justice to the class, so far deprived of their
legitimate natural and constitutional rights. It is, therefore·,
the only just solution which ensures justice not only to
TGs but also justice to the society as well. Social justice
does not mean equality before law in papers but to 8
translate the spirit of the Constitution, enshrined in the
Preamble, the Fundamental Rights and the Directive
Principles of State Policy into action, whose arms are
long enough to bring within its reach and embrace this
right of recognition to the TGs which legitimately belongs C
to them. [Paras 125 and 126] [238-D-H; 239-A]
3.9. Aristotle opined that treating all equal things
equal and all unequal things unequal amounts to justice.
Kant was of the view that at the basis of all conceptions
of justice, no matter which culture or religion has inspired D
them, lies the golden rule that you should treat others as
you would want everybody to treat everybody else,
including yourself. When Locke conceived of individual
liberties, the individuals he had in mind were
independently rich males. Similarly, Kant thought of E
economically self-sufficient males as' the o'nly possible
citizens of a liberal democratic state. These theories may
not be relevant in today's context as it is perceived that
the bias of their perspective is all too obvious to us. In
post-traditional liberal democratic theories of justice, the F
background assumption is that humans have equal value
and should, tti'erefore, be treated as equal, as well as by
equal laws. This can be described as 'Reflective
Equilibrium'. The method of Reflective Equilibrium was
first introduced by Nelson Goodman in 'Fact, Fiction and. G
Forecast' (1955). However, it is John Rawls who
elaborated this method of Reflective Equilibrium by
introducing the conception of 'Justice as Fairness'. In his
'Theory of Justice', Rawls has proposed a model of just
institutions for democratic societies. Herein he draws on
H
..
160 SUPREME COURT, REPORTS [2014] 5 S.C.R.
A certain pre-theoretical elementary mora! beliefs
('considered judgments'), which he assumes most
members of democratic societies would accept. "[Justice
as fairness [ .... ] tries to draw solely upon basic intuitive
ideas that are embedded in the political institutions of a
8 constitutional democratic regime and the public
traditions of their interpretations. Justice as fairness is a
political conceptioh in part because it starts from within
a certain political tradition. Based on this preliminary
understanding of just institutions in a democratic society,
C Rawls aims at a set of universalistic rules with the help
of which the justice of present formal and informal
institutions can be assessed. The ensuing conception of
justice is called 'justice as fairness'. Combining Rawls's
notion of Justice as Fairness with the notions of
Distributive Justice, to which Noble Laureate Prof.
D Amartya Sen has also subscribed, would get
jurisprudential basis for doing justice to the Vulnerable
Groups which definitely include TGs. Once it is accepted
that the TGs are also part of vulnerable groups and
marginalized section of the society, we are only bringing
~ them within the fold of aforesaid .rights recognized in
respect of other classes falling in the marginalized group. ·
This is the minimum riposte in an attempt to assuage the
insult and injury suffered by them so far as to pave way
for fast tracking the realization of their human rights. [Para
F 127] [239-B-H; 240-A-C]
Case Law Reference:
Per Radhakrishnan, J.
G (1884) ILR 6 All 204 Referred to Para 17
(2014) 1 sec 1 Relied on Para 18
(1970) 2 All ER 33 Referred to Para 25
(983) QB 1053, 1063-1064 Referred to Para 25
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 161
OF INDIA AND OTHERS
(1995) 1 NZLR 603 Referred to Para 26 A
(2001) Fam CA 1074 Referred to Para 26
(2003) Fam CA 94 Refe.rred to Para 26
(1993) 43 FCR 299 Referred to Para 27
(1988) 17 NSWLR 158 Referred to Para 27 B
(2011) HCA 42 Referred to Para .28
(2003) 2 All ER 593 Referred to Para 29
(2006) 1 MLJ 90 Referred to Para 30
c
(2013) NSWCA 145 Referred to Para 31
1984 (2) SCR 664 Relied on Para 51
1970 (3) SCR 53 Relied on Para 51
(1966) 1 SCR 391 Relied on Para 51
D
1980 (2) SCR 913 Relied on Para 51
1973 (0) Suppl. SCR 1 Relied on Para 53
(1999) 1 sec 759 Relied on Para 53
1999 (1) SCR 669 Relied on Para 53 E
2006 (3) SCR 1132 Relied on Para 53
2005 (1) SCR 494 Relied on Para 53
1997 (3) Suppl. SCR 404 Relied on Para 53
75 lll.2d 525(1978) Referred to Para 63 F
2000 WL33162199 Referred to Rara 64
1981 (2) SCR 516 Relied on Para 67
2007 (12) SCR 991 Relied on Para 69
Per A.K. SIKRI, J. G
AIR 1978 SC 215 Relied on Para 93
1986 (3) SCR 443 Relied on Para 94
1988 (1) SCR 279 Relied on Para 94
(1987) 3 sec 430 Relied on Para 94 H
162 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 1987 (2) SCR 468 Relied on Para 94
1986 (3) SCR 802 Relieq on Para 94
1988 (2) Suppl. SCR 223 Relied on Para 94
1989 (3) SCR 997 Relied on Para 94
B 1989 (1) SCR 57 Relied on Para 94
1988 (3) Suppl. SCR 212 Relied on Para 94
1988 (2) Suppl. SCR 24 Relied on Para 94
1988 Suppl. SCR 755 Relied on Para 94
c 1991 (1) SCR 5 Relied on Para 95
AIR 1990 SC 630 Relied on Para 95
1988 (3) Suppl. SCR 870 Relied on Para 95
AIR 1990 SC 630 Relied on Para 95
D 1986 (1) SCR 251 Relied on Para 95
1992 (3) SCR 658 Relied on Para 95
1993 (1) SCR 594 Relied on Para 95
1987 (2) SCR 468 Relied on Para 96
E 1988 (1) SCR 279 Relied on Para 96
1986 (1) SCR 251 Relied on Para 96
1984 (2) SCR 67 Relied on Para 96
1983 (2) SCR 582 Relied on Para 96
F 1986 (3) SCR 443 Relied on Para 96
(19~4) Suppl (3) sec 448 Relied on Para 96
1977 (2) SCR 790 Relied on Para 120
AIR 1996 SC 1234 Relied on Para 124
G CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
Writ Petition (Civil) No. 400 of 2012.
WITH
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 163
OF INDIA AND OTHERS
W.P. (C) No. 604 of 2013. A
A. Mariarputham, AG, Rakesh K. Khanna, ASG, Raju
Ramachandran, Anand Grover, Dr. Manish Singhvi, Krishna
Sarma, Manjit Singh, Gaurav Bhatia, AAGs, Anitha Shenoy,
. Madhur Panjwani, Vishruti Vijay, Neha Singh, Sanjeev B
Bhatnagar, Rupi Sagar, Soumak S. Das, Manju Jetly, Seema
Rao, Harsh Prabhakar, D.S. Mahra, Amritananda Chakravorty,
Mihir Samson, Purushottam Sharma Tripathi, Mukesh Kr.
Singh, Filza Moohis, Ravi Chandra Prakash, T. Srinivasa
Murthy, Shruti Iyer, Ambalika Roy (for Senthil Jagadeesan), C
Aruna Mathur, Yusuf, Kirti R. Mishra, Apurva Upmanyu, V.G.
Pragasam, S.J. Aristotle, P. Subramanian, lrshad Ahmad, Ritu
Raj Biswas, Chandan Kumar (for Gopal Singh), Shankar
Chillarge (for Asha G. Nair), Anil Shrivastav, Riku Sarma, Navnit
Kumar (for Corporate Law Group), Anip Sachthey, Saakaar
Sardana, Aniruddha P. Mayee, Apoorv Kurup, Charudatta D
Mahindarkar, Suryanarayana Singh (for Pragati Neekhra),
Sapam Biswajit Meitei, Ashok Kr. Singh, B. Balaji, R. Rakesh
Sharma, Mishra Saurabh, Vanshaja Shukla, Abhikalp Pratap
Singh (for Pragati Neekhra), Ranjan Mukherjee, Lagnesh
Mishra, V.N. Raghupathy, Pragyan Sharma, Heshu Kayina, E
Balasubramanian, K.V. Jagdishvaran, G. Indira, Amit Kumar
Singh, Shubhada Deshpande (for K. Enatoli Serna), Jagjit
Singh Chhabra, Jogy Scaria, Dr. Abhishek Atrey, Ashutosh Kr.
Sharma, Babita Tyagi for the appealing parties.
F
The Judgment of the Court was delivered by
,
K.S. RADHAKRISHNAN, J. 1. 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 G
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 H
164 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 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.
2. We are, in this case, concerned with the grievances of
the members of Transgender Community (for short 'TG
8 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
C as a third gender with all legal and constitutional protection.
3. The National Legal Services Authority, constituted under
the Legal Services Authority Act, 1997, to ,provide free legal
services to the weaker and other marginalized sections of the
society, has come forward to advocate their cause, by filing Writ
0
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 Kinnar community, a TG community.
E 4. 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. Tripathy says that
F non-recognition of the identity of Hijras, a TG community, as a
third ge,nder, denies them the right of equality before the law
and equal protection of law guaranteed under Article 14 of the
Constitution and violates the rights guaranteed to them under
Article 21 of the Constitution of India.
G 5. Shri Raju Ramachandran, learned senior counsel
appearing for the petitioner - the National Legal Services
Authority, highlighted the traumatic experiences faced by the
members of the TG community and submitted that every
person of that community has a legal right to decide their sex
H orientation and to espouse and determine their identity.
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 165
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
Learned senior counsel tias submitted that since the TGs are A
neither treated as male or female, nor given the status of a third
gender, they are being deprived of many of the rights and
privileges which other persons enjoy as citizens of this country.
TGs are deprived of social and cultural participation and hence
restricted access to education, health care and public places B
which deprives them of the Constitutional guarantee of equality
before law and equal protection of laws.'Further, it was also
pointed out that the community also faces discrimination to
contest election, right to vote, employment, to get licences etc.
and, in effect, treated as an outcast and untouchable. Learned c
senior counsel also submitted that the State cannot discriminate
them on the ground of gender, violating Articles 14 to 16 and
21 of the Constitution of India.
6. Sbri Anand Grover, learned senior counsel appearing
for the Intervener, traced the historical background of the third D
gender identity in India and the position accorded to them in
the Hindu Mythology, Vedic and Puranic literatures, and the
prominent role played by them in the royal courts of the Islamic
world etc. Reference was also made to the repealed Criminal
Tribes Act, 1871 and explained the inhuman manner by which E
they were treated at the' time of the British Colonial rule,
Learned senior counsel also submitted that various
International Forums and U.N. Bodies have recognized their
gender identity and referred to the Yogyakarta Principles and
pointed out that those principles have been recognized by F
various countries around the world. Reference was also made
tb few legislations giving recognition to the trans-sexual persons
in other countries. Learned senior counsel also submitted that
non-recognition of gender identity of the transgender community
violates the fundamental rights guaranteed to them, who are G
citizens of this country.
7. Shri T. Srinivasa Murthy, learned counsel appearing in
I.A. No. 2 of 2013, submitted that transgender persons have to
be declared as a socially and educationally backward classes · H-
166 SUPREME COURT REPORTS [2014] 5 S.C.R.
A of citizens and must be accorded all benefits available to that
class of persons, which are being extended to male and female
genders. Learned counsel also submitted that the right to
choose one's gender identity is integral to the right to lead a
life with dignity, which is undoubtedly guaranteed by Article 21
B of the Constitution of India. Learned counsel, therefore,
submitted that, subject to such rules/regulations/protocols,
transgender persons may be afforded the right of choice to
determine whether to opt for male, female or transgender
classification.
c 8. Shri Sanjeev Bhatnagar, learned counsel appearing for
the petitioner in Writ Petition No.604 of 2013, highlighted the
cause of the Kinnar community and submitted that they are the
most deprived group of transgenders and calls for constitutional
as well as legal protection for their identity and for other socio-
D economic benefits, which are otherwise extended to the
members of the male and female genders in the community.
9. Shri Rakesh K. Khanna, learned Additional Solicitor
General, appearing for the Union of India, submitted that the
E problems highlighted by the transgender community is a
sensitive human issue, which calls for serious attention.
Learned ASG pointed out that, under the aegis of the Ministry
of Social Justice and Empowerment (for short "MOSJE"), a
Committee, called "Expert Committee on Issues relating to
F Transgender", has been constituted to conduct an in-depth
study of the problems relating to transgender persons to make
appropriate recommendations to MOSJE. Shri Khanna also
submitted that due representation would also be given to the
applicants, appeared before this Court in the Committee, so
G that their views also could be heard.
10. We also heard learned counsel appearing for various
States and Union Territories who have explained the steps they
have taken to improve the conditions and status of the
members of TG community .in their respective States and Union
H Territories. Laxmi Narayan Tripathy, a Hijra, through a petition
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 167
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
supported by an affidavit, highlighted the trauma undergone by A
Tripathy from Tripathy's birth. Rather than explaining the same
by us, it would be appropriate to quote in Tripathy's own words:
"That the Applicant has born as a male. Growing up as a
child, she felt different from the boys of her age and was B
feminine in her ways. On account of her femininity, from
an early ,age, she faced repeated sexual harassment,
mo11:lstation and sexual abuse, both within and outside the
family. Due to her being different, she was isolated and
had no one to talk to or express her feelings while she was C
coming to terms with her identity. She was constantly
abused by everyone as a 'chakka' and 'hijra'. Thou'gh she
felt that there was no place for her in society, she did not
succumb to the prejudice. She started to dress and
appear in public in women's clothing in her late teens but
she did not identify as a woman. Later, she joined the Hijra D
community in Mumbai as she identified with the other
hijras and for the first time in her life, she felt at home.
That being a hijra, the Applicant has faced serious
discrimination throughout her life because of her gender E
identity. It has be~n clear to the Applicant that the complete
non-recognition of the identity of hijras/transgender persons
by the State has resulted in the violation of most of the
fundamental rights guaranteed to them under the
Constitution of India .... " F
Siddarth Narrain, eunuch, highlights Narrain's feeling, as
follows: ·
"Ever since I can remember, I have always identified
myself as a woman. I lived in Namakkal, a small town in G
Tamil Nadu, When I was in the 10th standard I realized that
the only way for me to be comfortable was to join the hijra
community. It was then that my family found out that I
frequently met hijras who lived in the city. One day, when
my father was away, my brother, encouraged by my H
168 SUPREME COURT REPORTS [2014] 5 S.C.R.
A mother, started beating me with a cricket bat. I locked
myself in a room to escape from the beatings. My mother
and brother then tried to break into the room to beat me
up further. Some of my relatives intervened and brought
me out of the room. I related my ordeal to an uncle of mine
B who gave me Rs.SO and asked me to go home. Instead, I
took the money and went to live with a group of hijras in ·
Erode."
Sachin, a TG, expressed his experiences as follows:
c "My name is Sachin and I am 23 years old. As a child I
always enjoyed putting make-up like 'vibhuti' or 'kum kum'
and my parents always saw me as a girl. I am male but I
only have female feelings. I used to help my mother in all
the housework like cooking, washing and cleaning. Over
D the years, I started assuming more of the domestic
responsibilities at home. The neighbours starting teasing
me. They would call out to me and ask: 'Why don't you go
out and work like a man?' or 'Why are you staying at home
like a girl?' But I liked being a girl. I felt shy about going
E out and working. Relatives would also mock and scold me
on this score. 'Every day I would go out of the house to
bring water. And as I walked back with the water I would
always be teased. I felt very ashamed. I even felt suicidal.
How could I live like that? But my parents never protested.
F They were helpless."
We have been told and informed of similar life
experiences faced by various others who belong to the TG
community.
G 11. Transgender is generally described as an umbrella term
for persons whose gender identity, gender expression or
behavior does not conform to their biological sex. TG may also
takes in persons who do not identify with their sex assigned at
birth, which include Hijras/Eunuchs who, in this writ petition,
H describe themselves as "third gender" and they do not identify
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 169
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
as either male or female. Hijras are not men by virtue of A
anatomy appearance and psychologically, they are also not
women, though they are like women with no female reproduction
organ and no menstruation. Since Hijras do not have
reproduction capacities as either men or women, they are
neither men nor women and claim to be an institutional "third B
gender". Among Hijras, there are emasculated (castrated,
nirvana) men, non-emasculated men (not castrated/akva/akka)
and inter-sexed persons (hermaphrodites). TG also ·includes
persons who intend to undergo Sex Re-Assignment Surgery
(SRS) or have undergone SRS to align their biological sex with c
their gender identity in order to become male or female. They
are generally called transsexual persons. Further, there are
persons who like to cross-dress in clothing of opposite gender,
i.e transvestites. Resultantly, the term "transgender", in
contemporary usage, has become an umbrella term that is 0
used to describe a wide range of identities and experiences,
including but not limited to pre-operative, post-operative and
non-operative transsexual people, who strongly identify with the
gender opposite to their biological sex; male and female.
HISTORICAL BACKGROUND OF TRANSGENDERS IN E
INDIA:
12. TG Community comprises of Hijras, eunuchs, Kothis,
Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group,
have got a strong historical presence in our country in the Hindu F
mythology and other religious texts. The Concept of tritiya prakrti
or napunsaka has also b€1en an integral part of vedic and
puranic literatures. The word 'napunsaka' has been used to
denote absence of procreative capability.
13. Lord Rama, in the epic Ramayana, was leaving for the G
forest upon being banished from the kingdom for 14 years,
turns around to his followers and asks all the 'men and women'
to return to the city. Among his followers, the hijras alone do
not feel bound by this direction and decide to stay with him.
Impressed with their devotion, Rama sanctions them the power H
170 SUPREME COURT REPORTS [2014] 5 S.C.R.
A to confer blessings on people on auspicious occasions like
childbirth and marriage, and also at inaugural functions which,
it is believed set the stage for the custom of badhai in which
hijras sing, dance and confer blessings.
14. Aravan, the son of Arjuna and Nagakanya in
8
Mahabharata, offers to be sacrificed to Goddess Kali to ensure
the victory of the Pandavas in the Kurukshetra war, the only
condition that he made was to spend the last night of his life in
matrimony. Since no woman was willing to marry one who was
doomed to be killed, Krishna assumes the form of a beautiful
C woman called Mohini and marries him. The Hijras of Tamil Nadu
consider Aravan their progenitor and call themselves Aravanis.
15. Jain Texts also make a detailed reference to TG which
mentions the concept of 'psychological sex'. Hijras also played
D a prominent role in the royal courts of the Islamic world,
especially in the Ottaman empires and the Mughal rule in the
Medieval India. A detailed analysis of the historical background
of the same finds a place in the book of Gayatri Reddy, "With
Respect to Sex: Negotiating Hijra Identity in South India" - Yoda
E Press (2006).
16. We notice that even though historically, Hijras/
transgender persons had played a prominent role, with the
onset of colonial rule from the 18th century onwards, the
F situation bad changed drastically. During the Briti~h rule, a
legislation was enacted to supervise the deeds of Hijras/TG
community, called the Criminal Tribes Act, 1871, which
deemed the entire community of Hijras persons as innately
'criminal' and 'addicted to the systematic commission of non-
bailable offences'. The Act provided for the registration,
G surveillance and control of certain criminal tribes and eunuchs
and had penalized eunuchs, who were registered, and
appeared to be dressed or ornamented like a woman, in a
public street or place, as well as those who danced or played
music in a public place. Such persons also could be arrested
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 171
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
without warrant and sentenced to imprisonment up to two years A
or fine or both. Under the Act, the local government had to
register the names and residence of all eunuchs residing in that
area as well as of their properties, who were reasonably
suspected of kidnapping or castrating children, or of committing
offences under Section 377 of the IPC, or of abetting the B
commission of any of the said offences. Under the Act, the act
of keeping a boy under 16 years in the charge of a registered
eunuch was made an offence punishable with imprisonment up
to two years or fine and the Act also denuded the registered
eunuchs of their civil rights by prohibiting them from aGting as c
guardians to minors, from making a gift deed or a will, or from
adopting a son. Act has, however; been repealed in August
1949.
17. Section 377 of the IPC found a place in the Indian
Penal Code, 1860, prior to the enactment of Criminal Tribles D
Act that criminalized all penile-non-vaginal sexual acts between
persons, including anal sex and oral sex, at a time when
transgender persons were also typically associated with the
prescribed sexual practices. Reference may be made to the
judgment of the Allahabad High Court in Queen Empress v. E
Khairati (1S84) ILR 6 All 204, wherein a transgender person
was arrested and prosecuted under Section 377 on the
suspicion that he was a 'habitual sodomite' and was later
acquitted on appeal. In that case, while acquitting him, the
Sessions Judge stated as follows: F
"This case relates to a person named Khairati, over whom
the police seem to have exercised some sort of
supervision, whether strictly regular or not, as a eunuch.
The man is not a eunuch in the literal sense, but he was G
called for by the police when on a visit to his village, and
was found singing dressed as a woman among the women
of a certain family. Having been subjected to examination
by the Civil Surgeon (and a subordinate medical man), he
is shown to have the characteristic mark of a habitual
H
172 SUPREME COURT REPORTS [2014] 5 S.C.R.
A catamite - the distortion of the orifice of the anus into the
shape of a trumpet and also to be affected with syphilis in
the same region in a manner which distinctly points to
unnatural intercourse within the last few months."
18. Even though, he was acquitted on appeal, this case
8
would demonstrate that Section 377, though associated with
specific sexual acts, highlighted certain identities, including
Hijras and was used as an instrument of harassment and
physical abuse against Hijras and transgender persons. A
Division Bench of this Court in Suresh Kumar Kaushal and
C another v. Naz Foundation and others [(2014) 1 SCC 1] has
already spoken on the constitutionality of Section 377 IPC and,
hence, we express no opinion on it since we are in these cases
concerned with an altogether different issue pertaining to the
constitutional and other legal rights of the transgender
D community and their gender identity and sexual orientation.
GENDER IDENTITY AND SEXUAL ORIENTATION
19. Gender identity is one of the most-fundamental aspects
E of life which refers to a person's intrinsic sense of being male,
female or transgender or transsexual person. A person's sex
is usually assigned at birth, but a relatively small group of
pers~na may born with bodies which incorporate both or certain
aspects of both male and female physiology. At times, genital
anatomy problems may arise in certain persons, their innate
F perception of themselves, is not in conformity with the sex
assigned to them at birth and may include pre and post-
operative transsexual persons and also persons who do not
choose to undergo or do not have access to operation and
also include persons who canriot undergo successful operation.
G Countries, all over the world, including India, are grappled with
the question of attribution of gender to persons who believe that
they belong to the opposite sex. Few persons undertake
surgical and other procedures to alter their bodies and physical
appearance to acquire gender characteristics of the sex which
H conform to their perception of gender, leading to legal and
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 173
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
social complications since official record of their gender at birth A
is found to be at variance with the assumed gender identity.
Gender identity refers to each person's deeply felt internal and
individual experience of gender, which may or may not
correspond with the sex assigned at birth, including the
personal sense of the body which may involve a freely chosen, B
modification of bodily appearance or functions by medical,
surgical or other means and other expressions of gender,
including dress, speech and mannerisms. Gender identity,
therefore, refers to an individual's self-identification as a man,
woman, transgender or other identified category. c
20. Sexual orientation refers to an individual's enduring
physical, romantic and/or emotional attraction to another
person. Sexual orientation includes transgender and gender-
variant people with heavy sexual orientation and their sexual
orientation may or may not change during or after gender D
transmission, which also includes homo-sexuals, bysexuals,
heterosexuals, asexual etc. Gender identity and sexual
orientation, as already indicated, are different concepts. Each
person's self-defined sexual orientation and gender identity is
integr~I to their personality and is one of the most.basic aspects E
of self-determination, dignity and freedom and no one shall be
forced to undergo medical procedures, including SRS,
sterilization or hormonal therapy, as a requirement for legal
recognition of their gender identity.
UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES
- ON GENDER IDEN11TY AND SEXUAL ORIENTATION
21. United Nations has been instrumental in advocating the
protection and promotion of rights of sexual minorities, G
including transgender persons. Article 6 of the Universa_I
Declaration of Human Rights, 1948 and Article 16 of the
International Covenant on Civil and Political Rights, 1966
(ICCPR) recognize that every human being has the inherent
right to live and this right shall be protected by law and that no
H
174 SUPREME COURT REPORTS [2014] 5 S.C.R.
A one shall be arbitrarily denied of that right. Everyone shall have
a right to recognition, everywhere as a person before the law.
Article 17 of the ICCPR states that no one shall be subjected
to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour
B and reputation and that everyone has the right to protection of
law against such interference or attacks. International
Commission of Jurists and the International Service for Human
Rights on behalf of a coalition of human rights organizations,
took a project to develop a set of international legal principles
c on the application of international law to human rights violations
based on sexual orientation and sexual identity to bring greater
clarity and coherence to State's human rights obligations. A
distinguished group of human rights experts has drafted,
developed, discussed and reformed the principles in a meeting
held at Gadjah Mada University in Yogyakarta, Indonesia from
0
6 to 9 November, 2006, which is unanimously adopted the
Yogyakarta Prin'ciples on the application of International Human
Rights Law in relation to Sexual Orientation and Gender Identity.
Yogyakarta Principles address a broad range of human rights
standards and their application to issues of sexual orientation
E gender identity. Reference to few Yogyakarta Principles would
be useful.
YOGYAKARTA PRINCIPLES:
F 22. Principle 1 which deals with the right to the universal
enjoyment of human rights, reads as follows :-
"1.THE RIGHT TO THE UNIVERSAL ENJOYMENT OF
HUMAN RIGHTS
G All human beings are born free and equal in dignity and
rights. Human beings of all sexual orientations and gender
identities are entitled to the full enjoyment of all human
rights.
States shall:
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 175
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
A. Embody the principles of the universality, A
interrelatedness, interdependence and indivisibility
of all human rights in their national constitutions or
other appropriate legislation and ensure the
practical realisation of the universal enjoyment of all
human rights; B
B. Amend any legislation, including criminal law, to
ensure its consistency with the universal enjoyment
of all human rights;
C. Undertake programmes of education and C
awareness to promote and enhance the full
enjoyment of all human rights by all persons,
irrespective of sexual orientation or gender identity;
D. Integrate within State policy and decision-making D
a pluralistic approach that recognises and affirms
the interrelatedness and indivisibility of all aspects
of human identity including sexual orientation and
gender identity.
2. THE RIGHTS TO EQUAL,.ITY AND NON- E
DISCRIMINATION
Everyone is entitled to enjoy all human rights without
discrimination on the basis of sexual orientation or gender
identity. Everyone is entitled to equality before the law and F
the equal protection of the law without any such
discrimination whether or not the enjoyment of ano1her
human right is also affected. The law shall prohibit any such
discrimination and guarantee to all persons equal and
effective protection against any such discrimination. G
Discrimination on the basis of sexual orientation or gender
identity includes any distinction, exclusion, restriction or
preference based on sexual orientation or gender identity
which has the purpose or effect of nullifying or impairing
equality before the law or the equal protection of the law, H
176 SUPREME COURT REPORTS [2014] 5 S.C.R.
A or the recognition, enjoyment or exercise, on :.11 equal
basis, of all human rights and fundamental freedoms.
Discrimination based on sexual orientation or gender
identity may be, and commonly is, compounded by
discrimination on other grounds including gender, race,
B age, religion, disability, health and economic status.
States shall:
A. Embody the principles of equality and non-
discrimination on the basis of sexual orientation
c and gender identity in their national constitutions or
other appropriate legislation, if not yet incorporated
therein, including by means of amendment and
interpretation, and ensure the effective realisation
of these principles;
D
8. Repeal criminal and other legal provisions that
prohibit or are, in effect, employed to prohibit
consensual sexual activity among people- of the
same sex who are over the age of consent, and
ensure that an equal age of consent applies to both
E
same-sex and different- sex sexual activity;
C. Adopt appropriate legislative and other measures
to prohibit and eliminate discrimination in the public
and private spheres on the basis of sexual
F orientation and gender identity;
D. Tc:lke appropriate measures to secure adequate
advancement of persons of diverse sexual
orientations and gender identities as may be
G necessary to ensure such groups or individuals
equal enjoyment or exercise of human rights. Such
measures shall not be deemed to be discriminatory;
E. In all their responses to discrimination on the basis
of sexual orientation or gender identity, take
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 177
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
account of the manner in which such discrimination A
may intersect with other forms of discrimination;
F. Take all appropriate action, including programmes
of education and training, with a view to achieving
the elimination of prejudicial or discriminatory 8
attitudes or behaviours which are related to the idea
of the inferiority or the superiority of any sexual
orientation or gender identity or gender expression.
3. THE RIGHT TO RECOGNITION BEFORE THE LAW
c
Everyone has the right to recognition everywhere as a
person before the law. Persons of diverse sexual
orientations and gender identities shall enjoy legal capacity
in all aspects of life. Each person's self-defined sexual
orientation and gender identity is integral to their D
personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be forced
to undergo medical procedures, including sex
reassignment surgery, sterilisation or hormonal therapy, as
a requirement for legal recognition of their gender identity.
E
No status, such as marriage or parenthood, may be
invoked as such to prevent the legal recognition of a
person's gender identity. No one shall be subjected to
pressure to conceal, suppress or deny their sexual
orientation or gender identity.
F
States shall:
A. Ensure that all persons are accorded legal capacity
in civil matters, without discrimination on the basis
of sexual orientation or gender identity, and the G
opportunity to exercise that capacity, including equal
rights to conclude contracts, and to administer, own,
acquire (including through inheritance), manage,
enjoy and dispose of property;
H
178 SUPREME COURT REPORTS [2014] 5 S.C.R.
A B. Take all necessary legislative, administrative and
other measures to fully respect and legally
recognise each person's self-defined gender
identity;
C. Take all necessary legislative, administrative and
B
.. other measures to ensure that procedures exist
whereby all State-issued identity papers which
indicate a person's gender/sex - including birth
certificates, passports, electoral records and other
documents - reflect the person's profound self-
c defined gender identity;
D. Ensure that such procedures are efficient, fair and
non-discriminatory, and respect the dignity and
privacy of the person concerned;
D
E. Ensure that changes to identity documents will be
recognised in all contexts where the identification
or disaggregation of persons by gender is required
by law or policy;
E F. Undertake targeted programmes to provide social
support for all persons experiencing gender
transitioning or reassignment.
4. THE RIGHT TO LIFE
F
Everyone has the right to life. No one shall be arbitrarily
deprived of life, including by reference to cGnsiderations
of sexual orientation or gender identity. The death penalty
shall not be imposed on any person on the basis of
consensual sexual activity among persons who are over
G the age of consent or on the basis of sexual orientation or
gender identity.
States shall:
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 179
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
A. Repeal all forms of crime that have the purpose or A
effect of prohibiting consensual sexual activity
among persons of the same sex who are over the
age of consent and, until such provisions are
repealed, never impose the death penalty on any
person convicted under them; B
B. Remit sentences of death and release all those
currently awaiting execution for crimes relating to
consensual sexual activity among persons who are
over the age of consent;
c
C. Cease any State-sponsored or State-condoned
attacks on !he lives of persons based on sexual
orientation or gender identity, and ensure that all
such attacks, whether by government officials or by
any individual or group, are vigorously investigated, D
and that, where appropriate evidence is found,
those responsible are prosecuted, tried and duly
. \
punished. ·
6. THE RIGHT TO PRIVACY
E
Everyone, regardless of sexual ori~ntation or gender
identity, is entitled to the enjoyment of privacy without
arbitrary or unlawful interference, including with regard to
their family, home or correspondence as well as to
protection from unlawful attacks on their honour and F
reputation. The right to privacy ordinarily includes the
choice to disclose or not to disclose information relating
to one's sexual orientation or gender identity, as well as
decisions and choices regarding both one's own body and
consensual sexual and other relations with others. G
States shall:
A. Take all necessary legislative, administrative and
other measures to ensure the right of each person,
H
180 SUPREME COURT REPORTS [2014] 5 S.C.R.
A regardless of sexual orientation or gender identity,
to enjoy the private sphere, intimate decisions, and
human relations, including consensual sexual
activity among persons who are over the age of
consent, without arbitrary interference;
B
B. Repeal all laws that criminalise consensual sexual
activity among persons of the same sex who are
over the age of consent, and ensure that an equal
age of consent applies to both same-sex and
different-sex sexual activity;
c
C. Ensure that criminal and other legal provisions of
general application are not applied to de facto
criminalise consensual sexual activity among
persons of the same sex who are over the age of
D consent;
D. Repeal any law that prohibits or criminalises the
expression of gender identity, including through
dress, speech or mannerisms, or that denies to
individuals the opportunity to change their bodies
E
as a means of•expressing their gender identity;
E. Release all those held on remand or on the basis
of a criminal conviction, if their detention is related
to consensual sexual activity among per.sons who
F are over the age of consent, or is related to gender
identity;
F. Ensure the right of all persons ordinarily to choose
when, to whom and how to disclose information
G pertaining to their sexual orientation or gender
identity, and protect all persons from arbitrary or
unwanted disclosure, or threat of disclosure of such
information by others
9. THE RIGHT TO TREATMENT WITH HUMANITY
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 181
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
WHILE IN DETENTION A
Everyone deprived of liberty shall be treated with humanity
and with respect for the inherent dignity of the human
person. Sexual orientation and gender identity are integral
to each person's dignity. B
States shall:
A. Ensure that placement in detention avoids further
marginalising persons on the basis of sexual
orientation or gender identity or subjecting them to C
risk of violence, ill-treatment or physical, mental or
sexual abuse;
B. Provide adequate access to medical care and
counselling appropriate to the needs of those in
0
custody, recognising any particular needs of
persons on the basis of their sexual orientation or
gender identity, including with regard to
reproductive health, access to HIV/AIDS
information and therapy and access to hormonal or
other therqpy as well as to gender-reassignment E
treatments where desired;
C. Ensure, to the extent possible, that all prisoners
participate in decisions regarding the place of
detention appropriate to their sexual orientation and F
gender identity;
D. Put protective measures in place for all prisoners
vulnerable to violence or abuse on the basis of their
sexual orientation, gender identity or gender G
expression and ensure, so far as is reasonably
practicable, that such protective measures involve
no greater restriction of their rights than is
experienced by the general prison population;
H
182 SUPREME COURT REPORTS [2014] 5 S.C.R.
A E. Ensure that conjugal visits, where permitted, are
granted on an equal basis to all prisoners and
detainees, regardless of the gender of their partner;
F. Provide for the independent monitoring of detention
facilities by the State as well as by non-
B
governmental organisations including organisations
working in the spheres of sexual orientation and
gender identity;
G. Undertake programmes of training and awareness-
c raising for prison personnel and all other officials
in the public and private sector who are engaged
in detention facilities, regarding international human
rights standards and principles of equality and non-
discrimination, including in relation to sexual
D orientation and gender identity.
18. PROTECTION FROM MEDICAL ABUSES
No person may be forced to undergo any form of medical
or psychological treatment, procedure, testing, or be
E confined to a m.edical facility, based on sexual orientation,
or gender identity. Notwithstanding any classifications to
the contrary, a person's sexual orientation and gender
identity are not, in and of themselves, medical conditions
and are not to be treated, cured or suppressed.
F
States shall:
A Take all necessary legislative, administrative and
other measures to ensure full protection against
harmful medical practices based on sexual
G orientation or gender identity, including on the basis
of stereotypes, whether derived from culture or
otherwise, regarding conduct, physical appearance
or perceived gender norms;
H B. Take all necessary legislative, administrative and
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 183
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
other measures to ensure that no child's body is A
irreversibly altered by medical procedures in an
attempt to impose a gender identity without the full,
free and informed consent of the child in
accordance with the age and maturity of the child
and guided by the principle that in all actions B
concerning children, the best interests of the child
shall be a primary consideration;
C. Establish child protection mechanisms whereby no
child is at risk of, or subjected to, medical abuse;
c
D. Ensure protection of persons of diverse sexual
orientations and gender identities against unethical
or involuntary medical procedures or research,
including in relation to vaccines, treatments or
microbicides for HIV/AIDS or other diseases; D
E. Review and amend any health funding provisions
or programmes, including those of a development-
assistance nature, which may promote, facilitate or
in any other way render possible such abuses;
E
F. Ensure that any medical or psychological treatment
or counselling does not, explicitly or implicitly, treat
sexual orientation and gender identity as medical
conditions to be treated, cured or suppressed.
F
19. THE RIGHT TO FREEDOM OF OPINION AND
EXPRESSION
Everyone has the right to freedom of opinion and
expression, regardless of sexual orientation or gender
identity. This includes the expression of identity or G
·personhood through speech, deportm.ent, dress, bodily
characteristics, choice of name, or any other means, as
well as the freedom to seek, receive and impart
information and ideas of all kinds, including with regard to
H
184 SUPREME COURT REPORTS [2014] 5 S.C.R.
A human rights, sexual orientation and gender identity,
through any medium and regardless of frontiers.
States shall:
A. Take all necessary legislative, administrative and
8 other measures to ensure full enjoyment of freedom
of opinion and expression, while respecting the
rights and freedoms of others, without
discrimination on the basis of sexual orientation or
gender identity, including the receipt and imparting
c of information and ideas concerning sexual
orientation and gender identity, as well as related
advocacy for legal rights, publication of materials,
broadcasting, organisation of or participation in
conferences, and dissemination of and access to
D safer-sex information;
B. Ensure that the outputs and the organisation of
media that is State-regulated is pluralistic and non-
discriminatory in respect of issues of sexual
orientation and gender identity and that the
E
personnel recruitment and promotion policies of
such organisations are non-discriminatory on the
basis of sexual orientation or gender identity;
C Take all necessary legislative, administrative and
F other measures to ensure the full enjoyment of the
right to express identity or personhood, including
through speech', deportment, dress, bodily
characteristics, choice of name or any other means;
G D. Ensure that notions of public order, public morality,
public health and public security are not employed
to restrict, in a discriminatory manner, any exercise
of freedom of opinion and expression that affirms
diverse sexual orientations or gender identities;
H
NATIO~AL LEGAL SERVICES AUTHORITY v. UNION 185
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
E. Ensure that the exercise of freedom of opinion and A
expression does not violate the rights and
freedoms of persons of diverse sexual orientations
and gender identities;
F. Ensure that all p~rsons, regardless of sexual 8
orientation or gender identity, enjoy equal access
to information and ideas, as well as to participation
in public debate."
23. UN bodies, Regional Human Rights Bodies, National
Courts, Government Commissions and the Commissions for C
Human Rights, Council of Europe, etc. have endorsed the
Yogyakarta Principles and have considered them as an
important tool for identifying the obligations of States to respect,
protect and fulfill the human rights of all persons, regardless of
their gender identity. United Nations Committee on Economic, D
Social and Cultural Rights in its Report of 2009 speaks of
gender orientation and gender identity as follows:-
"Sexual orientation and gender identity
'Othe.r status' as recognized in article 2, parpgraph 2, E
includes sexual orientation. States parties should ensure
that a person's sexual orientation is not a barrier to
realizing Covenant rights, for example, in accessing
survivor's pension rights. In addition, gender identity is
recognized as among the prohibited grounds of F
discrimination, for example, persons who are transgender,
transsexual or intersex, often face serious human rights
violations, such as harassment in schools or in the
workplace."
G
24. In this respect, reference may also be made to the
General Comment No.2 of the Committee on Torture and
Article 2 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment in 2008 and
also the General Comment No.20 of the Commit~ee on H
186 SUPREME COURT REPORTS [2014] 5 S.C.R.
A Elimination of Discrimination against Woman, responsible for
the implementation of the Convention on the Elimination of All
Forms of Discrimination against Woman, 1979 and 2010
report.
SRS and Foreign Judgments
8
25. Various countries have given recognition to the gender
identity of such persons, mostly, in cases where transsexual
persons started asserting their rights after undergoing SRS of
their re-assigned sex. In Corbett v. Corbett (1970) 2 All ER 33,
C the Court in England was concerned with the gender of a male
to female transsexual in the context of the validity of a marriage.
Ormrod, J. in that case took the view that the law should adopt
the chromosomal, gonadal and genital tests and if all three are
congruent, that should determine a person's sex for the purpose
D of marriage. Learned Judge expressed the view that any
operative intervention should be ignored and the biological
sexual constitution of an individual is fixed at birth, at the latest,
and cannot be changed either by the natural development of
organs of the opposite sex or by medical or surgical means.
E Later, in R v. Tan (1983) QB 1053, 1063-1064, the Court of
Appeal applied Corbett approach in the context of criminal law.
The Court upheld convictions which were imposed on Gloria
Greaves, a post-operative male to female transsexual, still being
in law, a man.
F 26. Corbett principle was not found favour by various other
countries, like New Zealand, Australia etc. and also attracted
much criticism, from the medical profession. It was felt that the
application of the Corbett approach would lead to a substantial
different outcome in cases of a post operative inter-sexual
G person and a post operative transsexual person. In New
Zealand in Attorney-General v. Otahuhu Family Court (1995)
1 NZLR 603, Justice Ellis noted that once a transsexual person
has undergone surgery, he or she is no longer able to operate
in his or her original sex. It was held that there is no social
H advantage in the law for not recognizing the validity of the
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 187
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
marriage of a transsexual in the sex of reassignment. The Court A
held that an adequate test is whether the person in question
has undergone surgical and medical procedures that have
effectively given the person the physical conformation of a
person of a specified sex. In Re Kevin (Validity of Marriage of
Transsexual) (2001) Fam CA 1074, in an Australian case, B
Chisholm J., he!d that there is no 'formulaic solution' ·to
determine the sex of an individual for the purpose of the law of
marriage. It was held that all relevant matters need to be
considered, including the person's life experienceS'and self-
perception. Full Court of the Federal Family Court in the year c
2003 approved the above-mentioned judgment holding that in
the relevant Commonwealth marriage statute the words 'man'
and 'woman' should be given their ordinary, everyday
contemporary meaning and that the word 'man' includes a post
operative female to male transsexual person. The Full Court 0
also held that there was a biological basis for transsexualism
and that there was no reason to exclude the psyche as one of
the relevant factors in determining sex and gender. The
judgment Attorney-General for the Commonwealth & "Kevin and
Jennifer" & Human Rights and Equal Opportunity Commission
E
is reported in (2003) Fam CA 94.
27. Lockhart, J. in Secretary, Department of Social
Security v. "SRA", (1993) 43 FCR 299 and Mathews, J. in R
v. Harris & McGuiness (1988) 17 NSWLR 158, made an
exhaustive review of the various decisions with regard to the F
question of recognition to be accorded by Courts to the gender
of a transsexual p'erson who had undertaken a surgical
procedure. The Courts generally in New Zealand held that the
decision in Corbett v. Corbett (supra) and R v. Tan (supra)
which applied a purely biological test, should not be followed. G
In fact, Lockhart. J. in SRA observed that the development in
surgical and medical techniques in the field of sexual
reassignment, together with indications of changing social
attitudes towards transsexuals, would indicate that generally
they should not be regarded merely as a matter of H
188 SUPREME COURT REPORTS [2014] 5 S.C.R.
A chromosomes, which is purely a psychological question, one
of self-perception, and partly a social question, how society
perceives the individual.
28. A.B. v. Western Australia (2011) HCA 42 was a case
concerned with the Gender Reassignment Act, 2000. In that Act,
8
a person who had undergone a reassignment procedure could
apply to Gender Reassignment Board for the issue of a
recognition certificate. Under Section 15 of that Act, before
issuing the certificate, the Board had to be satisfied, inter alia,
that the applicant believed his or her true gender was the
C person's reassigned gender and had adopted the lifestyle and
gender characteristics of that gender. Majority of Judges
agreed with Lockhart, J. in SRA that gender should not be
regarded merely as a matter of chromosomes, but partly a
psychological question, one of self-perception, and partly a
D social question, how society perceives the individual.
29. The House of Lords in Bellinger v. Bellinger (2003) 2
All ER 593 was dealing with the question of a transsexual. In
that case, Mrs. Bellinger was born on 7th September, 1946.
E At birth, she was correctly classified and registered as male.
However, she felt more inclined to be a fEfmale. Despite her
inclinations, and under some pressure, in 1967 she married a
woman and at that time she was 21 years old. Marriage broke
down and parties separated in 1971 and got divorce in the year
F 1975. Mrs. Bellinger dressed and lived like a woman and when
she married Mr. Bellinger, he was fully aware of her background
and throughout had been supportive to her. Mr. and Mrs.
Bellinger since marriage lived happily as husband and wife and
presented themselves in that fashion to the outside world. Mrs.
G Bellinger's primary claim was for a declaration under Section
55 of the Family Law Act, 1986 that her marriage to Mr.
Bellinger in 1981 was "at its inception valid marriage". The
House of Lords rejected the claim and dismissed the appeal.
Certainly, the "psychological factor" has not been given much
prominence in determination of the claim of Mrs. Bellinger.
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 189
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
30. The High Court of Kuala Lumpur in Re JG, JG v. A
Pengarah Jabatan Pendaftaran Negara (2006} 1 MLJ 90, was
considering the question as to whether an application to amend
or correct gender status stated in National Registration Identity
Card could be allowed after a person has undergone SRS. It
was a case where the plaintiff was born as a male, but felt more B
inclined to. be a wom~an. In 1996 at Hospital Siroros she
underwent a gender reassignment and got the surgery done for
changing the sex from male to female and then she lived like a
woman. She applied to authorities to change her name and also
for a declaration of her gender as female, but her request was c
not favourably considered, but still treated as a male. She
sought a declaration from the Court that s.he be declared as a
'·
female and that the Registration Department be directed to
change the last digit of her identity card to a digit that reflects
a female gender. The Malaysian Court basically applied the 0
principle laid down in Corbett (supra), however, both the prayers
sought for were granted, after noticing that the medical men
have spoken that the plaintiff is a female and they have
considered the sex change of the plaintiff as well as her
"psychological aspect". The Court noticed that she feels like a
woman, lives like one, behaves as one,.· has her physical body
E
attuned to one, and most important of all, her "psychological
thinking" is that of a woman.
31. The Court of Appeal, New South Wales was called
upon to decide the question whether the Registrar of Births, F
Deaths and Marriages has the power under the Births,.Deaths
and Marriages Act, 1995 to register a change of sex of a
person and the sex recorded on the register to "non-specific"
or "non-specified". The appeal was allowed and the matter was
remitted back to the Tribunal for a fresh consideration in G
accordance with law, after laying down the law on the subject.
The judgment is reported as Norrie v. NSW Registrar of Births,
Deaths and Marriages (2013) NSWCA 145. While disposing
of the appeal, the Court held as follows:-
H
190 SUPREME COURT REPORTS [2014] 5 S.C.R.
A "The consequence is that the Appeal Panel (and the
Tribunal and the Registrar) were in error in construing the
power in S.32DC(1) as limiting the Registrar to registering
a person's change of sex a.s only male or female. An error
in the construction of the statutory provision· granting the
B power to register a person's change of sex is an error on
a question of law. Collector of Customs v. Pozzolanic
Enterprises Pty. Ltd. [1993] FCA 322; (1993) 43 FCR 280
at 287. This is so notwithstanding that the determination
of the common understanding of a general word used in
c the statutory provision is a question of fact. The Appeal
Panel (and the Tribunal and the Registrar) erred in
determining that the current ordinary meaning of the word
"sex" is limited to the character of being either male or
female. That involved an error on a question of fact. But
the Appeal Panel's error in arriving at the common
D
understanding of the word "sex" was associated with its
error in construction of the effect of the statutory provision
of S.32DC (and also of S.32DA), and accordingly is of
law: Hope v. Bathurst City Council [1980] HCA 16, (1980)
144 CLR 1 at 10."
E
32. In Christine Goodwin v. United Kingdom (Application
No.28957/95 - Judgment dated 11th.July, 2002), the European
Court of Human Rights examined an application alleging
violation of Articles 8, 12, 13 and 14 of the Convention for
F Protection of Human Rights and Fundamental Freedoms, 1997
in respect of the legal status of transsexuals in UK and
particularly their treatment in the sphere of employment, social
security, pensions and marriage. Applicant in that case had a
tendency to dress as a woman from early childhood and
G underwent aversion therapy in 1963-64. In the mid-1960s she
was diagnosed as a transsexual. Though she married a woman
and they had four children, her inclination was that her "brain
sex" did not fit her body. From that time until 1984 she dressed
as a man for work but as a woman in her free time. In January,
H 1985, the applicant began treatment at the Gender Identity
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 191
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
Clinic. In October, 1986, she underwent surgery to shorten her A
vocal chords. In August, 1987, she was accepted on the waiting
list for gender re-assignment surgery and later underwent that
surgery at a National Health Service hospital. The· applicant
later divorced her former wife. She claimed between 1990 and
1992 she was sexually harassed by colleagues at work, B
followed by other human rights violations. The Court after
referring to various provisions and Conventions held as
follows:-
"Nonetheless, the very essence of the Convention is C
respect for human dignity and human freedom. Under
Article 8 of the Convention in particular; where the notion
of personal autonomy is an imp©rtant principle underlying
the interpretation of its guarantees, protection is given to
the personal sphere of each individuals, including the right
to establish details of their identity as individual human D
beings (see, inter alia, Pretty v. the United Kingdom
no.2346/02, judgment of 29 April 2002, 62, and Mikulic
v. Croatia, no.53176/99, judgment of 7 February 2002, 53,
both to be published in ECHR 2002 ... ). In the twenty first
century the right of transsexu.als to personal development E
and to physical and moral security in the full sense enjoyed
by others in society cannot be regarded as a matter of
controversy requiring the lapse of time to cast clearer light
on the issues involved. In short, the unsatisfactory situation
in which post-operative transsexuals live in an intermediate F
zone as not quite one gender or the other is no longer
sustainable."
33. The European Court of Human Rights in the case of
Van Kuck v. Germany (Application No.35968/97 - Judgment G
dated 12.9.2003) dealt with the application alleging that
German Court's decisions refusing the applicant's claim for
reimbursement of gender reassignment measures and the
related proceedings were in breach of her rights to a fair trial
and of her right to respect for her private life and that they H
192 SUPREME COURT REPORTS [2014] 5 S.C.R.
A amounted to discrimination on the ground of h1:r particular
"psychological situation". Reliance was placed on Articles 6,
8, 13 and 14 of the Convention for Protection of Human Rights
and Fundamental Freedoms, 1997. The Court held that the
concept of "private life" covers the phy$ical and psychological
B integrity of a person, which can sometimes embrace aspects
of an individual's physical and social identity. For example,
gender identifications, name and sexual orientation and sexual
life fall within the personal sphere protected by Article 8. The
Court also held that the notion of personal identity is an
c important principle underlying the interpretation of various
guaranteed rights and the very essence of the Convention being
respect for human dignity and human freedom, protection is
given to the right of transsexuals to personal development and
to physical and moral security.
D 34. Judgments referred to above are mainly related to
transsexuals, who, whilst belonging physically to one sex, feel
convinced that they belong to the other, seek to achieve a more
integrated unambiguous identity by undergoing medical and
surgical operations to adapt their physical characteristic to their
E psychological nature. When we examine the rights of
transsexual persons, who have' undergone SRS, the test to be
applied is not the "Biological test", but the "Psychological test",
because psychological factor and thinking of transsexual has
to be given primacy than binary notion of gender of that person.
F Seldom people realize the discomfort, distress and
psychological trauma, they undergo and many of them undergo
"Gender Dysphoria' which may lead to mental disorder.
Discrimination faced by this group in our society, is rather
unimaginable and their rights have to be protected, irrespective
G of chromosomal sex, genitals, assigned birth sex, or implied
gender role. Rights of transgenders, pure and simple, like
Hijras, eunuchs, etc. have also to be examined, so also their
right to remain as a third gender as well as their physical and
psychological integrity. Before addressing those aspects
H further, we may also refer to few legislations enacted in other
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 193
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
countries recognizing their rights. A
LEGISLATIONS IN OTHER COUNTRIES ON TGs
35. We notice, following the -trend, in the international
human rights law, many countries have enacted laws for
recognizing rights of transsexual persons, who have undergone B
either partial/complete SRS, including United Kingdom,
Netherlands, Germany, Australia, Canada, Argentina, etc.
United Kingdom has passed the General Recommendation
Act, 2004, following the judgment in Christine Goodwin (supra)
passed by the European Courts of Human Rights. The Act is C
all encompassing as not only does it provide legal recognition
to the acquired gender of a person, but it also lays down
provisions highlighting the consequences of the newly acquired
gender status on their legal rights and entitlements in various
aspects such as marriage, parentage, succession, social D
security and pensions etc. One of the notable features of the
Act is' that it is not necessary that a person needs to have
undergone or in the process of undergoing a SRS to apply
under the Act. Reference in this connection may be made to
the Equality Act, 2010 (UK) which has consolidated, repealed E
and replaced around dine different anti-discrimination
legislations including the Sex Discrimination Act, 1986. The Act
defines certain characteristics to be "protected characteristics"
and no one shall be discriminated or treated less favourably
'on grounds th.at the person possesses one or more of the F
"protected characteristics". The Act also imposes duties on
Public Bodies to eliminate all kinds uf discrimination,
harassment and victimization. Gender reassignment has been
declared as one of the protected characteristics under the Act,
of course, only the transsexuals i.e. those who are proposing G
to undergo, is undergoing or has undergone the process of the
gender reassignment are protected under the Act.
36. In Australia, there are two Acts dealing with the gender
identity, (1) Sex Discrimination Act, 1984; and (ii) Sex
Discrimination Amendment (Sexual Orientation, Gender Identity H
194 SUPREME COURT REPORTS [2014] 5 S.C.R.
A and lntersex Status) Act, 2013 (Act 2013). Act 2013 amends
the Sex Discrimination Act, 1984. Act 2013 defines gender
identity as the appearance or mannerisms or other gender-
related characteristics of a person (whether by way of medical
intervention or not) with or without regard to the person's
B designated sex at birth.
Sections S(A), (B) and (C) of the 2013 Act have some
relevance and the same are extracted hereinbelow:-
"SA Discrimination on the ground of sexual
C orientation
(1) For the purposes of this Act, a person (the
discriminator) discriminates against another person (the
aggrieved person) on the ground of the aggrieved person's
D sexual orientation if, by reason of:
(a) the aggrieved person's sexual orientation; or
(b) a characteristic that appertains generally to
persons who have the same sexual orientation as
E the aggrieved person; or
(c) a characteristic that is generally imputed to persons
who have the same sexual orientation as the
aggrieved person;
F the discriminator treats the aggrieved person less
favourably than, in circumstances th.at are the same or are
not materially different, the discriminator treats or would
treat a person who has a different sexual orientation.
G (2) For the purposes of this Act, a person (the
discriminator) discriminates against another person (the
aggrieved person) on the ground of the aggrieved person's
sexual orientation if the discriminator imposes, or proposes
to impose, a condition, requirement or practice that has,
H or is likely to have, the effect of disadvantaging persons
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 195
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
who- have the same sexual orientation as the aggrieved A
person.
(3) This section has effect subject to sections 78 and 70.
58 Discrimination on the ground of gender identity
8
(1) For the purposes of this Act, a person (the
discriminator) discriminates against another person (the
aggrieved person) on the ground of the aggrieved person's
gender identity if, by reason of:
(a) the aggrieved person's gender identity; or
c
(b) a characteristic that appertains generally to
persons who have the same gender identity as the
aggrieved person; or
D
(c) a characteristic that is generally imputed to persons
who· have the same gender identity as the
aggrieved person;
the discriminator treats the aggrieved person less
favourably than, in circumstances that are the same or are E
not materially different, the discriminator treats or would
treat a person who has a different gender identity.
(2) For the purposes of this Act, a person (the
discriminator) -discriminates against another person (the F
aggrieved person) on the ground of the aggrieved person's
gender identity if the discriminafor imposes, or proposes
to impose, a condition, requirement or practice that has,
or is likely to have, the effect of disadvantaging persons
who have the same gender identity as the aggrieved G
person.
(3) This section has effect subject to sections 78 and_ 70.
5C Discrimination on the· ground of intersex status
H
196 SUPREME COURT REPORTS [2014] 5 S.C.R.
A (1) For the purposes of this Act, a person (the
discriminator) .discriminates against another person (the
aggrieved person) on the ground of the aggrieved person's
intersex status if, by reason of:
(a) the aggrieved person's intersex status; or
B
(b) a characteristic that appertains generally to
persons of intersex status; or
(c) a characteristic that is generally imputed to persons
c of intersex status;
the discriminator treats the aggrieved person less
favourably than, in circumstances that are the same or are
not materially different, the discriminator treats or would
treat a person who is not of intersex status.
D
(2) For the purposes of this Act, a person (the
discriminator) discriminates against another person (the
aggrieved person) on the ground of the aggrieved person's
intersex status if the discriminator imposes, or proposes
E to impose, a condition, requirement or practice that has,
or is likely to have, the effect of disadvantaging persons
of intersex status.
(3) This section has effect subject to sections 78 and 70."
F Various other precautions have also been provided under
the Act·.
37. We may in this respect also refer to the European
Union Legislations on transsexuals. Recital 3 of the Preamble
G to the Directive 2006/54/EC of European Parliament and the
Council of 5 July 2006 makes an explicit reference to
discrimination based on gender reassignment for the first time
in European Union Law. Recital 3 reads as under :-
"The Court of Justice has held that the scope of the
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 197
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
principle of equal treatment for men and women cannot be A
confined to the prohibition of discrimination based on the
fact that a person is of one or other sex. In view of this
purpose and the nature of the rights which it seeks to
safeguard .. it also applies to discrimination arising from the
gender reassignment of a person." B
38. European Parliament also adopted a resolution on
discrimination against transsexuals on 12th September, 1989
and called upon the Member States to take steps for the
protection of transsexual persons and to pass legislation to C
further that end. Following that Hungary has enacted Equal
Treatment and the Promotion of Equal Opportunities Act, 2003,
which includes sexual identity as one of the grounds of
discrimination, 2010 paper on 'Transgender Persons' Rights in
the EU Member States prepared by the Policy Department of
the European Parliament presents the specific situation of D
transgender people in 27 Member States of the European
Union. In the United States of America some of the laws
enacted by the States are inconsistent with each other. The
Federal Law which provides protection to transgenders is The
Matthew Shepard and James Byrd. Jr. Hate Crimes- Preve.ntion E
Act, 2009, which expands the scope of the 1969 United s'tates
Federal Hate-crime Law by including offences motivated by
actual or perceived gender identity. Around 15 States and
District of Colombia in the United States have legislations which
prohibit discrimination on grounds of gender identity and F
expression. Few States have issued executive orders
prohibiting discrimination.
39. The Parliament of South Africa in the year 2003,
enacted Alteration of Sex Description and Sex Status Act, G
2003, which permits transgender persons who have undergone .
gender reassignment or people whose sexual characteristics
have evolved naturally or an intersexed person to apply to the
Director General of the National Department of Home Affairs
for alteration of his/her sex description in the birth register,
H
198 SUPREME COURT REPORTS [2014] 5 S.C.R.
A though the legislation does not contemplate a more inclusive
definition of transgenders.
40. The Senate of Argentina in the year 2012 passed a
law on Gender Identity that recognizes right by all persons to
8 the recognition of their gender identity as well as free
development of their person according to their gender identity
and can also request that their recorded sex be amended along
with the changes in first name and image, whenever they do
not agree with the self-perceived gender identity. Not necessary
that they seemed to prove that a surgical procedure for total or
C partial genital reassignment, hormonal therapies or any other
psychological or medical treatment had taken place. Article 12
deals with dignified treatment, respecting the gender identity
adopted by the individual, even though the first name is different
from the one recorded in their national identity documents.
D Further laws also provide that whenever requested by the
individual, the adopted first name must be used for summoning,
recording, filing, calling and any other procedure or service in
public and private spaces.
E 41. In Germany, a new law has come into force on 5th
November, 2013, which allows the parents to register the sex
of the children as 'not specified' in the case of children with
intersex variation. According to Article 22, Section 3 of the
German Civil Statutes Act reads as follows:-
F "If a child can be assigned to neither the female nor the
male sex then the child has to be named without a
specification"
42. The law has also added a category of X, apart from
G "M" and "F" under the classification of gender in the passports.
Indian Scenario
43. We have referred exhaustively to the various judicial
pronouncements and legislations on the international arena to
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 199
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
highlight the fact that the recognition of "sex identity gender" of A
persons, and "guarantee to equality and non-discrimination" on
the ground of gender identity or expression is increasing and
gaining acceptance in international law and, therefore, be
applied in India as well.
B
44. Historical background of Transgenders in India has
already been dealth in the earlier part of this Judgment
indicating that they were once treated with great respect, at least
in the past, though not in the present. We can perceive a wide
range of transgender related identities, cultures or experiences C
which are generally as follows:
"Hijras: Hijras are biological males who reject their
'masculine' identity in due course of time to identify either
as women, or "not-men", or "in-between man and woman",
or "neither man nor woman". Hijras can be considered as D
the western equivalent of transgender/transsexual (male-
to-female) persons but Hijras have a long tradition/culture
and have strong social ties formalized through a ritual
called "reet'' (becoming a member of Hijra community).
There are regional variations in the use of terms referred E
to Hijras. For example, Kinnars (Delhi) and Ara~anis (Tamil
Nadu). Hijras may earn through their traditional work:
'Badhai' (clapping their hands and asking for alms),
blessing new-born babies, or dancing in ceremonies.
Some proportion of Hijras engage in sex work for lack of F
other job opportunities, while some may be self-employed
or work for non-governmental organisations." (See UNDP
India Report (December, 2010).
Eunuch: Eunuch refers to an emasculated male and
intersexed to a person whose genitals are ambiguously G
male-like at birth, but this is discovered the child previously
assigned to the male sex, would be recategorized as
intesexexd - as a Hijra.
"Aravanis and 'Thirunangi' - Hijras in Tamil Nadu identify H
200 SUPREME COURT REPORTS [2014] 5 S.C.R.
A as "Aravani". Tamil Nadu Aravanigal Welfare Board, a
state government's initiative under the Department of
Social Welfare defines Aravanis as biological males who
self-identify themselves as a woman trapped in a male's
body. Some Aravani activists want the public and media
B to use the term 'Thirunangi' to refer to Aravanis.
Kothi - Kothis are a heterogeneous group. 'Kothis' can be
described as biological males who show varying degrees
of 'femininity' - which may be situational. Some proportion
of Kothis have bisexual behavior and get married to a
c woman. Kothis are generally of lower socioeconomic
status and some engage in sex work for survival. Some
proportion of Hijra-identified people may also identify
themselves as 'Kothis'. But not all Kothi identified people
identify themselves as transgender or Hijras.
D
Jogtas/Jogappas: Jogtas or Jogappas are those
persons who are dedicated to and serve as a servant of
goddess Renukha Devi (Yellamma) whose temples are
present in Maharashtra and Karnataka. 'Jogta' refers to
E male servant of that Goddess and 'Jogti' refers to female
s~rvant (who is also sometimes referred to a·s 'Devadasi').
One can become a 'Jogta' (or Jogti) if it is part of their
family tradition or if one finds a 'Guru' (or 'Pujari') who
accepts him/her as a 'Chela' or 'Shishya' (disciple).
Sometimes, the term 'Jogti Hijras' is used to denote those
F
male-to-female transgender persons who are devotees/
servants of Goddess Renukha Devi and who are also in
the Hijra communities. This term is used to differentiate
them from 'Jogtas' who are heterosexuals and who may
or may not dress in woman's attire when they worship the
G
Goddess. Also, that term differentiates them from 'Jogtis'
who are biological females dedicated to the Goddess.
However, 'Jogti Hijras' may refer to themselves as 'Jogti'
(female pronoun) or Hijras, and even sometimes as
'Jogtas'.
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 201
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.}
Shiv-Shakthis: Shiv-Shakthis are considered as males. A
who are possessed by or particularly close to a goddess
and who have feminine gender expression. Usually, Shiv-
Shakthis are inducted into the Shiv-Shakti community by
senior gurus, who teach them the norms, customs, and
rituals to be observed by them. In a ceremony, Shiv- B
Shakthis are married to a sword that represents male
power or Shiva (deity). Shiv-Shakthis thus become the
bride of the sword. Occasionally, Shiv-Shakthis cross-
dress and use accessories and ornaments that are
generally/socially meant for women. Most people in this c
community· belong to lower socio-economic status and
earn for their living as astrologers, soothsayers, and
spiritual healers; some also seek alms." (See Serena
Nanda, Wadsworth Publishing Company, Second Edition
(1999) D
45. Transgender people, as a whole, face multiple forms
of oppression in this country. Discrimination is so large and
pronounced, especially in the field of health care, employment,
education, leave aside social exclusipXJ. A detailed study was
conducted by the United Nations t>evelopment Programme E
(UNDP - India) and submitted a report in December, 2010 on
Hijras/transgenders in India: "HIV Human Rights and Social
Exclusion". The Report states that the HIV Human
Immunodeficiency Virus and Sexually Transmitted Infections
(STI) is now increasingly seen in Hijras/transgenders population. F
The estimated size of men who have sex with men (MSM) and
male sex workers population in India (latter presumably includes
Hijras/TG communities) is 2,352,133 and 235,213 respectively.
It was stated that no reliable estimates are available for Hijras/
TG women. HIV prevalence among MSMpopulation was 7.4% G
against the overall adult HIV prevalence of 0.36%. It was stated
recently Hijras/TG people were included under the category of
MSM in HIV sentinel serosurveillance. It is also reported in
recent studies that Hijras/TG women have indicated a very high
HIV prevalence (17.5% to 41%) among them. Study conducted H
202 SUPREME COURT REPORTS [2014] 5 S.C.R.
A by NACO also highlights a pathetic situation. Report submitted
by NACI, NACP IV Working Group Hijras TG dated 5.5.2011
would indicate that transgenders are extremely vulnerable to
HIV. Both the reports highlight the extreme necessity of taking
emergent steps to improve their sexual health, mental health
B and also address the issue of social exclusion. The UNDP in
its report has made the following recommendations, which are
as under:
"Multiple problems are faced by Hijras/TG, which
necessitate a variety of solutions and actions. While some
c actions require immediate implementation such as
introducing Hijra/TG-specific social welfare schemes,
some actions need to be taken on a long-term basis
changing the negative attitude of the general public and
increasing accurate knowledge about Hijra/TG
D communities. The required changes need to be reflected
in policies and laws; attitude of the government, general
public and health care providers; and health care systems
and practice. Key recommendations include the following:
E 1. Address the gape in NACP-111: establish HIV sentinel
serosurveillance sites for Hijras/TG at strategic locations;
conduct operations research to design and fine-tune
culturally-relevant package of HIV prevention and care
interventions for Hijras/TG; provide financial support for the
F formation of CBOs run by Hijras/TG; and build the capacity
of CBOs to implement effective rogrammes.
2. Move beyond focusing on individual-level HIV prevention
activities to address the structural determinants of
risks and mitigate the impact of risks. For example,
G mental health counseling, crisis intervention (crisis in
relation to suicidal tendencies, police hara""Ssment and
arrests, support following sexual and physical violence),
addressing alcohol and drug abuse, and connecting to
livelihood programs all need to be part of the HIV
H interventions.
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 203
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
3. Train health care providers to be competent and A
sensitive in providing health care services (including STI
and HIV-related services) to Hijras!TG as well as develop
and monitor implementation of guidelines related to gender
transition and sex reassignment surgery (SRS).
B
4. Clarify the ambiguous legal status of sex reassignment
surgery and provide gender transition and SRS
services (with proper pre-and post-operation/transition
counseling) for free in public hospitals in various parts in
India.
c
5. Implement stigma and discrimination reduction
measures at various settings through a variety of ways:
mass media awareness for the general public to focused
training and sensitization for police and health care
providers. D
6. Develop action steps toward taking a position on legal
recognition of gender identity of Hijras/TG need to be
taken in consultation with Hijras/TG and other key
stakeholders. Getting legal recognition and avoiding E
ambiguities in the current procedures that issue identity
documents to Hijras/TGs are required as they are
connected to basic civil rights such as access to health and
public services, right to vote, right to contest elections, right
to education, inheritance rights, and marriage and child
adoption.
F
7. Open up the existing Social Welfare Schemes for needy
Hijras!TG and create specific welfare schemes to address
the basic needs of Hijras/TG including housing and
employment needs. G
8. 'Ensure greater involvement of vulnerable communities
including Hijras/TG women in policy formulation and
program development."
H
204 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 46. Social exclusion and discrimination on the ground of
gender stating that one does not conform to the binary gender
(male/female) does prevail in India. Discussion on gender
identity including self-identification of gender of male/female or
as transgender mostly focuses on those persons who are
s assigned male sex at birth, whether one talks of Hijra
transgender, woman or male or male to female transgender
persons, while concern voiced by those who are identified as
female to male trans-sexual persons often not properly
addressed. Female to male unlike Hijra/transgender persons
c are not quite visible in public unlike Hijra/transgender persons.
Many of them, however, do experience violence and
discrimination because of their sexual orientation or gender
identity.
INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
D
47. International Conventions and norms are significant for
the purpose of interpretation of gender equality. Article 1 of the
Universal declaration on Human Rights, 1948, states that all
human··beings are born free and equal in dignity and rights.
E Article 3 of the Universal Declaration of Human Rights states
that everyone has a right to life, libe'rty and security of person.
Article 6 of the International Covenant on Civil and Political
Rights, 1966 affirms that every human-being has the inherent
right to life, which right shall be protected by law and no one
F shall be arbitrarily deprived of his life. Article 5 of the Universal
Declaration of Human Rights and Article 7 of the International
Covenantun Civil and Political Rights provide that no one shall
be subjected to torture or to cruel inhuman or degrading
treatment or punishment. United Nations Convention against
Torture and Other Cruel Inhuman and Degrading Treatment or
G Punishment (dated 24th January, 2008) specifically deals with
protection of individuals and groups made vulnerable by
discrimination or marginalization. Para 21 of the Convention
states that States are obliged to protect from torture or ill-
treatment all persons regardless of sexual orientation or
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 205
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
transgender identity and to prohibit, prevent and provide A
redress for torture and ill-treatment in all contests of State
. custody or control. Article 12 of the Universal Declaration of
Human Rights and Article 17 of the International Covenant on
Civil and Political Rights state that no one shall be subjected
to "arbitrary or unlawful interference with his privacy, family, B
home or correspondence".
48. Above-mentioned International Human Rights
instruments which are being followed by various countries in the
world are aimed to protect the human rights of transgender C
people since it has been noticed that transgenders/
transsexuals often face serious human rights violations, such
as harassment in work place, hospitals, places of public
conveniences, market places, theaters, railway stations, bus
stands, and so on.
D
49. Indian Law, on the whole, only recognizes the paradigm
of binary genders of male and female, based on a person's sex
assigned by birth, which permits gender system, including the
law relating to marriage, adoption, inheritance, succession and
taxation and welfare legislations. We have exhaustively referred E
to various articles contained iri the Universal Declaration of
Human Rights, 1948, the International Covenant on Economic,
Social and Cultural Rights, 1966, the International Covenant on
Civil and Political Rights, 1966 as well as the Yogyakarta
prinCiples. Reference was also made to legislations enacted F
in other countries dealing with rights of persons of transgender
community. Unfortunately we have no legislation·in this country
dealing with the rights of transgender community. Due to the
absence of suitable legislation protecting the rights of the
members of the transgender community, they are facing G
discrimination in various areas and hence the necessity to
follow the International Conventions to which India is a party and
to give due respect to other non-binding International
Conventions and principles. Constitution makers could not have
envisaged that each and every human activity be guided,
H
206 SUPREME COURT REPORTS [2014] 5 S.C.R.
A controlled, recognized or safeguarded by laws made by the
legislature. Article 21 has been incorporated to safeguard those
rights and a constitutional Court cannot be a mute spectator
when those rights are violated, but is expected to safeguard
those rights knowing the pulse and feeling of that community,
s though a minority, especially when their rights have gain~d
universal recognition and acceptance.
50. Article 253 of the Constitution of India states that the
Parliament has the power to make any law for the whole or any
part of the territory of India for implementing any treaty,
C agreement or convention. Generally, therefore, a legislation is
required for implementing the international conventions, unlike
the position in the United States of America where the rules of
international law are applied by the municipal courts on the
theory of their implied adoption by the State, as a part of its
D own municipal law. Article VI, Cl. (2) of the U.S. Constitution
reads as follows:
" ........ all treaties made, or which shall be made, under the
authority of the united States, shall be the supreme law of
E the land, and the judges in every State shall be bound
thereby, anything in the Constitution or laws of any State
to the contrary not-withstanding."
51. In the United States, however, it is open to the courts
F to supersede or modify international law in its application or it
may be controlled by the treaties entered into by the United
States. But, till an Act of Congress is passed, the Court is
bound by the law of nations, which is part of the law of the land.
Such a 'supremacy clause' is absent in our Constitution. Courts
in India would apply the rules of International law according to
G the principles of comity of Nations, unless they are overridden
by clear rules of domestic law. See: Gramophone Company
of India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534
and Tractor Export v. Tarapore & Co. (1969) 3 SCC 562, Mirza
Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR
H 391. In the case of Jolly George Varghese v. Bank of Cochin
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 207
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
(1980) 2 SCC 360, the Court applied the above principle in A
respect of the International Covenant on Civil and Political
Rights, 1966 as well as in connection with the Universal
Declaration of Human Rights. India has ratified the above
mentioned covenants, hence, those covenants can be used by
the municipal courts as an aid to the Interpretation of Statutes B
by applying the Doctrine of Harmonization. But, certainly, if the
Indian law is not in conflict with the International covenants,
particularly pertaining to human rights, to which India is a party,
the domestic court can apply those principles in the Indian
conditions. The Interpretation of International Conventions is c
governed by Articles 31 and 32 of the Vienna Convention on
the Law of Treaties of 1969 .
.1\.... .....
. , 5~~\~rticle 51 of the Directive Principles of State Policy,
Wbf6R1faltS 'under Part IV of the Indian Constitution, reads as
U'nder: D
"Art. 51. The State shall endeavour to -
(a) promote international peace and security;
(b) maintain just a.nd honourable relations between E
nations;
(c) Foster respect for international law and treaty obligation
in the dealings of organised peoples with one another; and
F
(d) Encourage settlement of international disputes by
arbitration."
53. Article 51, as already indicated, has to be read along
with Article 253 of the Constitution. If the parliament has made
any legislation which is in conflict with the international law, then G
Indian Courts are bound to give effect to the Indian Law, rather
than the international law. However, in the absence of a contrary
legislation, municipal courts in India would respect the rule? of
international law. In His Holiness Kesavananda Bharati
Sripadavalvaru v. State of Kera/a (1973) 4 SCC 2?5, it was 1:i
208 SUPREME COURT REPORTS [2014] 5 S.C.R.
A stated that in view of Article 51 of the Constitution, the Court
must interpret language of the Constitution, if not intractable,
in the light of United Nations Charter and the solemn
declaration subscribed to it by India. In Apparel Export
Promotion Council v. A. K. Chopra (1999) 1 SCC 759, it was
s pointed out that domestic courts are under an obligation to give
due regard to the international conventions and norms for
construing the domestic laws, more so, when there is no
inconsistency between them and there is a void in domestic
law. Reference may also be made to the Judgments of this
c Court in Githa Hariharan (Ms) and another v. Reserve Bank
of India and another (1999) 2 sec 228, R.D. Upadhyay v.
State of Andhra Pradesh and others (2007) 15 SCC 337 and
People's Union for Civil Liberties v. Union of India. and
another (2005) 2 sec 436. In Vishaka and others v.
State, of
D Rajasthan and Others (1997) 6 SCC 241, this Court under
Article 141 laid down various guidelines to prevent sexual
harassment of women in working places, and to enable gender
equality relying on Articles 11, 24 and general
recommendations 22, 23 and 24 of the Convention on the
Elimination of All Forms of Discrimination against Women. Any
E international convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into those
provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution
to enlarge the meaning and content thereof and to promote the
object of constitutional guarantee. Principles discussed
F hereinbefore on TGs and the International Conventions,
including Yogyakarta principles, whic.h we have found not
inconsistent with the various fundamental rights guaranteed
under the Indian Constitution, must be recognized and followed,
which has sufficient legal and historical justification in our
G country.
ARTICLE 14 AND TRANSGENDERS
54. Article 14 of the Constitution of India states that the
State shall not deny to "any person" equality before the law or
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 209
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
the equal protection of the laws within the territory of India. A
Equality includes the full and equal enjoyment of all rights and
freedom. Right to equality has been declared as the basic
feature of the Constitution and treatment of equals as unequals
or unequals as equals will be violative of the basic structure of
the Constitution. Article 14 of the Constitution also ensures B
equal protection and hence a positive obligation on the State
to ensure equal protection of laws by bringing in necessary
_ social and economic changes, so that everyone including TGs
may enjoy equal protection of laws and nobody is denied such
protection. Article 14 does not restrict the word 'person' and c
its application only to male or female. Hijras/transgender
persons who are neither male/female fall within the expression
'person' and, hence, entitled to legal protection of laws in all
spheres of State activity, including employment, healthcare,
education as well as equal civil and citizenship rights, as
0
enjoyed by any other citizen of this country.
55. Petitioners have asserted as well as demonstrated on
facts and figures supported by relevant materials that despite
constitutional guarantee of equality, Hijras/transgender persons
have been facing ~xtreme discrimination in all spheres of th~ E
society. Non-recog'nition of the identity of Hijras/transgender
persons denies them equal protection of law, thereby leaving
them extremely vulnerable to harassment, violence and sexual
assault in public spaces, at home and in jail, also by the police.
Sexual assault, including molestation, rape, forced anal and oral F
sex, gang rape and stripping is being committed with impunity
and there are reliable statistics and materials to support such
activities. Further, non-recognition of identity of Hijras I
transgender persons results in them facing extreme
discrimination in all spheres of society, especially in the field G
of employment, education, healthcare etc. Hijras/transgender
persons face huge discrimination in access to public spaces
like restaurants, cinemas, shops, malls etc. Further, access to
public toilets is also a serious problem they face quite often.
Since, there are no separate toilet facilities for Hijras/ H
210 SUPREME COURT REPORTS [2014] 5 S.C.R.
A transgender persons, they have to use male toilets where they
are prone to sexual assault and harassment. Discrimination on
the ground of sexual orientation or gender identity, therefore,
impairs equality before law and equal protection of law and
violates Article 14 of the Constitution of India.
B ARTICLES 15 & 16 AND TRANSGENDERS
56. Articles 15 and 16 prohibit discrimination against any
citizen on certain enumerated grounds, including the ground of
'sex'. In fact, both the Articles prohibit all forms of gender bias
C and gender based discrimination.
57. Article 15 states that the State shall not discriminate
against any citizen, inter alia, on the ground of sex, with regard
to
D (a) access to shops, public restaurants, hotels and
places of public entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places
of public resort maintained wholly or partly out of
E State funds or dedicated to the use of the general
public.
The requirement of taking affirmative action for the
advancement of any socially and educationally backward
F classes of citizens is also provided in this Article.
58. Article 16 states that,there shall be equality of
opportunities for all the citizens in matters relating to
employment or appointment to any office under the State.
Article 16 (2) of the Constitution of India reads as follows :
G
"16(2). No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect
or, any employment or office under the State."
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 211
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
Article 16 not only prohibits discrimination on the ground A
· of sex in public employment, but also imposes a duty on the
State to ensure that all citizens are treated equally in matters
relating to. employment and appointment by the State.
59. Articles 15 and 16 sought to prohibit discrimination on
8
the basis of sex, recognizing that sex discrimination is a
historical fact and needs to be addressed. Constitution makers,
it can be gathered, gave emphasis to the fundamental right
against sex discrimination so as to prevent the direct or indirect
attitude to treat people differently, for the reason of not being
in conformity with stereotypical generalizations of binary C
genders. Both gender and biological attributes· constitute
distinct components of sex. Biological characteristics, of
course, include genitals, chromosomes and secondary sexual
features, but gender attributes include one's self image, the
deep psychological or emotional sense of sexual identity and D
character. The discrimination on the ground of 'sex' under
Articles 15 and 16, therefore, includes discrimination on the
ground of gender identity. The expressjon 'sex' used in Articles
15 and 16 is not just limited to biological sex of male or female,
but intended .to include people who consider themselves to be E
neither male'or female. ·
60. TGs have been systematically denied the rights under
Article 15(2) that is not to be subjected to any disability, liability,
restriction or condition in regard to access to public· places.
F
TGs have also not been afforded special provisions envisaged
under Article 15(4) for the advancement of the socially and
educationally backward classes (SEBC) of citizens, which they
are, and hence legally entitled and eligible to get the benefits
of SEBC. State is bound to take some affirmative action for
their advancement so that the injustice done to them for G
centuries could be remedied. TGs are also entitled to enjoy
economic, social, cultural and political rights without
discrimination, because forms of discrimination on the ground
of gender are violative of fundamental freedoms and human
H
212 SUPREME COURT REPORTS [2014] 5 S.C.R.
A rights. TGs have also been denied rights under Article 16(2)
and discriminated against in respect of employment or office
under the State on the ground of sex. TGs are also entitled to
reservation in the matter of appointment, as envisaged under
Article 16(4) of the Constitution. State is bound to take
8 affirmative action to give them due representation in public
services.
61. Articles 15(2) to (4) and Article 16(4) read with the
Directive Principles of State Policy and various international
instruments to which Indian is a party, call for social equality, .
C which the TGs could realize, only if facilities and opportunities
are extended to them so that they can also live with dignity and
equal status with other genders.
ARTICLE 19(1)(a) AND TRANSGENDERS
D
62. Article 19(1) of the Constitution guarantees certain
fundamental rights, subject to the power of the State to impose
restrictions from exercise of those rights. The rights conferred
by Article 19 are not available to any person who is not a citizen
of India. Article 19(1) guarantees those great basic rights which
E are recognized and guaranteed as the natural rights inherent
in the status of the citizen of a free country. Article 19(1) (a) of
the Constitution states that all citizens shall have the right to
freedom of speech and expression, which includes one's right
to expression of his self-identified gender. Self-identified
F gender can be expressed through dress, words, action or
behavior or any other form. No restriction can be placed on
one's personal appearance or choice of dressing, subject to
the restrictions contained in Article 19(2) of the Constitution.
G 63. We may, in this connection, refer to few judgments of
the US Supreme Courts on the· rights of TG's freedom of
expression. The Supreme Court of the State of Illinois in the
City of Chicago v. Wilson et al., 75 lll.2d 525(1978) struck down
the municipal law prohibiting cross-dressing, and held as
follows"-
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 213
OF INDIA AND OTHERS· [K.S. RADHAKRISHNAN, J.]
"the notion that the State can regulate one's personal A
appearance, unconfined by any constitutional strictures
whatsoever, is fundamentally inconsistent with "values of
privacy, self-identity, autonomy and personal integrity that
...... the Constitution was designed to protect."
B
64. In Doe v. Yunits et al., 2000 WL33162199 (Mass.
Super.), the Superior Court of Massachusetts, upheld the right
of a person to wear school dress that matches her gender
identity as part of protected speech and expression and
observed as follows :-
c
"by dressing in clothing and accessories traditionally
. associated with the female gender, she is expressing her
identification with the gender. In addition, plaintiffs ability
to express hers.elf and her gender identity through dress
is important for her health and well-being. Therefore, D
a
plaintiffs expression is not merely personal preference
but a necessary symbol of her identity." ·
65. Principles referred to above clearly indicate that the
freedom of expression guaranteed under Article 19(1 )(a) E
includes the freedom to express one's chosen gender identity
through varied ways and means by way of expression, speech,
mannerism, clothing etc.
66. Gender identity, therefore, lies at the core of one's
personal identity, gender expression and presentation and, F
therefore, it will have to be protected under Article 19(1 )(a) of
the Constitution of India. A transgender's personality could be
expressed by the transgender's behavior and presentation.
State cannot prohibit, restrict or interfere with a transgender's
expression of such personality, which reflects that inherent G
personality. Often the State and its authorities either due to
ignorance or otherwise fail to digest the innate character and
identity of such persons. We, therefore, hold that values of
privacy, self-identity, autonomy and personal integrity are
fundamental rights guaranteed t~ members of the transgender H
214 SUPREME COURT REPORTS [2014] 5 S.C.R.
A commurtTty under Article 19(1 )(a) of the Constitution of India and
the State is bound to protect and recognize those rights.
ARTICLE 21 AND THE TRANSGENDERS
67. Article 21 of the Constitution of India reads as follows:
B
"21. Protection of life and personal liberty • No person
shall be deprived of his life or personal liberty except
according to procedure established by law."
C Article 21 is the heart and soul of the Indian Constitution,
which speaks of the rights to life and personal liberty. Right to
life is one of the basic fundamental rights and not even the State
has the authority to violate or take away that right. Article 21
takes all those aspects of life which go to make a person's life
meaningful. Article 21 protects the dignity of human life, one's
D personal autonomy, one's right to privacy, etc. Right to dignity
has been recognized to be an essential part of the right to life
and accrues to all persons on account of being humans. In
Francis Coralie Mullin v. Administrator, Union Territory of
Delhi (1981) 1 SCC 608 (paras 7 and 8), this Court held that
E the right to dignity forms an essential part of oµr constitutional
culture which seeks to ensure the full development and evolution
of persons and includes "expressing oneself in diverse forms,
freely moving about and mixing and comingling with fellow
human beings".
F
68. Recognition of one's gender identity lies at the heart
of the fundamental right to dignity. Gender, as already
indicated, constitutes the core of one's sense of being as well
as an integral part of a person's identity. Legal recognition of
G gender identity is, therefore, part of right to dignity and freedom
guaranteed under our Constitution.
69. Article 21, as already indicated, guarantees the
protection of "personal autonomy" of an individual. In Anuj Garg
v. Hotel Association of India (2008) 3 SCC 1 (paragraphs 34-
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 115
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
35), this Court held that personal autonomy includes both the A
negative right of not to be subject to interference by others and
the positive right of individuals to make decisions about their
life, to express themselves and to choose which activities to
take part in. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the B
realm of personal liberty guaranteed under Article 21 of the
Constitution of India.
LEGAL RECOGNITION OF THIRD/TRANSGENDER
IDENTITY
c
70. Self-identified gender can be either male or female or
a third gender. Hijras are identified as persons of third gender
and are not identified either as male or female. Gender identity,
as already indicated, refers to a person's internal sense of
being male, female or a transgender, for example Hijras do not D
identify as female because of their lack of female genitalia or
lack of reproductive capability. This distinction makes them
separate from both male and female genders and they consider
themselves neither man nor woman, but a "third gender". Hijras,
therefore, belong to a distinct socio-religious and cultural group E
and have, therefore, to be considered as a'"third gender", apart
from male and female. State of Punjab has treated.all TGs as
male which is not legally sustainable. State of Tamil Nadu has
taken lot of welfare measures to safeguard the rights of TGs,
which we have to acknowledge. Few States like Kerala, Tripura, F
Bihar have referred TGs as "third gender or sex". Certain States
recognize them·as "third category". Few benefits have also
been extended by certain .other States. Our "neighbouring
countries h.ave also upheld their fundamental rights and right
to live with dignity.
G
71. The Supreme Court of Nepal in Sunil Babu Pant &
Ors. v. Nepal Government (Writ Petition No.917 of 2007
decided on 21st December, 2007), spoke on the rights of
Transgenders as follows:-
H
216 SUPREME COURT REPORTS [2014] 5 S.C.R.
A "the fundamental rights comprised under Part II of the
Constitution are enforceable fundamental human rights
guaranteed to the citizens against the State. For this
reason, the fundamental rights stipulated in Part Ill are the
rights similarly vested in the third gender people as human
B beings. The homosexuals and third gender people are
also human beings as other men and women are, and they
are the citizens of this country as well .... Thus, the people
other than 'men' and 'women', including the people of 'third
gender' cannot be discriminated. The State should
c recognize the existence of all natural persons including the
people of third gender other than the nien and women. And
it cannot deprive the people of third gender from enjoying
the fundamental rights provided by Part Ill of the
Constitution."
D 72. The Supreme Court of Pakistan in Dr. Mohammad
As/am Khaki & Anr. V. Senior Superintendent of Police
(Operation) Rawalpindi & Ors. (Constitution Petition No.43 of
2009) decided on 22nd March, 2011, had occasion to consider
the rights of eunuchs and held as follows:-
E
"Needless to observe that eunuchs in their rights are
citizens of this country and subject to the Constitution of
the Islamic Republic of Pakistan, 1973, their rights,
obligations including right to life and dignity are equally
F protected. Thus no discrimination, for any reason, is
possible against them as far as their rights and obligations
are concerned. The Government functionaries both at
federal and provincial levels are bound to provide them
protection of life and property and secure their dignity as
well, as is done in case of other citizens."
G
73. We may remind ourselves of the historical presence
of the third gender in this country as well as in the neighbouring
countries.
H 74. Article 21, as already indicated, protects one·s right
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 217
OF INDIA AND OTHERS [K.S. RADHAKRISHNAN, J.]
of self-determination of the gender to which a person belongs. A
Determination of gender to which a person belongs is to be
decided by the person concerned. In other words, gender
identity is integral to the dignity of an individual and is at the
core of "personal autonomy" and "self-determination". Hijras/
Eunuchs, therefore, have to be considered as Third Gender, B
over and above binary genders under our Constitution and the
laws.
75. Articles 14, 15, 16, 19 and 21, above discussion,
would indicate, do not exclude Hijras/Transgenders from its C
ambit, but Indian law on the whole recognize the paradigm of
binary genders of male and female, based on one's biological
sex. As already indicated, we cannot accept the Corbett
principle of "Biological Test", rather we prefer to follow the
psyche of the person in determining sex and gender and prefer
the "Psychological Test" instead of "Biological Test". Binary D
notion of gender reflects in the Indian Penal Code, for example,
Section 8, 10, etc. and also in the laws related fo marriage,
adoption, divorce, inheritance, succession and other welfare
legislations like NAREGA, 2005, etc. Non-recognition of the
identity of Hijras/Transgenders in the. various legislations denies E
them equal protection of law and they face wide-spread
discrimination.
76. Article 14 has used the expression "person"and the
Article 15 has used the expression "citizen" and "sex"· so also F
Article 16. Article 19 has also used the expression "citizen".
Article 21 has used the expression "person". -:A.II these
expressions, which,,are. ·~gender neutral" evidently refer to
human-beings. Hence, they take within their sweep Hijras/
Transgenders and are not as such limited to male or female G
gender. Gender identity as already indicated forms the core of
one's personal self, based on self identification, not on surgical
or medical procedure. Gender identity, in our view, is an inf~gral
part of sex and no citizen can be discriminated on the ground
of gender identity, including those who identify as third gender.
H
218 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 77. We, therefore, conclude that discrimination on the
basis of sexual orientation or gender identity includes any
discrimination, exclusion, restriction or preference, which has
the effect of nullifying or transposing equality by the law or the
equal protection of laws guaranteed under our Constitution, and
B hence we are inclined to give various directions to safeguard
the constitutional rights of the members of the TG community.
A.K. SIKRI, J.
78. I have carefully, and with lot of interest, gone through
C the perspicuous opinion of my brother Radhakrishnan,J. I am
entirely in agreement with the discussion contained in the said
judgment on all the cardinal issues that have arisen for
consideration in these proceedings. At the same time, having
regard to the fact that the issues involved are of seminal
D importance, I am also inclined to pen down my thoughts.
79. As is clear, these petitions essentially raise an issue
of "Gender Identity", which is the core issue. It has two facets,
viz.:
E "(a) Whether a person wl)o is born as a male with
predominantly female orientation (or vice-versa}, has a
right to get himself to be recognized as a female as per
his choice moreso, when such a person after having
undergone operational procedure, changes his/her sex as
F well;
(b)'Whether transgender (TG), who are neither males nor
females, have a right to be identified and categorized as
a "third gender"?
G 80. We would hasten to add that it is the second issue with
which we are primarily concerned in these petitions though in
the process of discussion, first issue which is somewhat inter-
related, has also popped up.
H 81. Indubitably, the issue of choice of gender identify has
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 21.9
OF INDIA AND OTHERS [A.K. SIKRI, J.]
all the trappings of a human rights. That apart, as it becomes A
clear from the reading of the judgment of my esteemed Brother
Radhakrishnan,J., the issue is not limited to the exercise of
choice of gender/sex. Many rights which flow from this choice
also come into play, inasmuch not giving them the status of a
third gender results in depriving the community of TGs of many B
of their valuable rights and privileges which other persons enjoy
as citizens of this Country. There is also deprivation of social
and cultural participation which results into eclipsing their
access to education and health services. Radhakrishnan,J. has
exhaustively described the term 'Transgen.der' as an umbrella c
term which embraces within itself a wide range of identities and
experiences including but not limited to pre-operative/post-
operative trans sexual people who strongly identify with the
gender opposite to their biological sex i.e. male/ female.
Therein, the history of transgenders in India is also traced and 0
while doing so, there is mention of upon the draconian
legislation enacted during the British Rule, known as Criminal
Tribes Act, 1871 which treated, per se, the entire community
of Hizra persons as innately 'criminals', 'addicted to the
systematic commission of non-bailable offences'.
E
82. With these introductory remarks, I revert to the two
facets of pivotal importance mentioned above. Before
embarking on the discussion, I may clarify that my endeavour
would be not to repeat the discussion contained in the judgment
of my Brother Radhakrishnan, J., as I agree with every word F
written therein. However, at times, if some of the observations
are' re-narrated, that would be only with a view to bring continuity
in the thought process.
(1) Re: Right of a person to have the gender of his/her G
choice.
When a child is born, at the time of birth itself, sex is
assigned to him/her. A child would be treated with that sex
thereafter, i.e. either a male or a female. However, as explained
in detail in the accompanying judgf!!ent, some pe~ns, though H
220 SUPREME COURT REPORTS [2014] 5 S.C.R.
A relatively very small in number, may born with bodies which
incorporate both or certain aspects of both male or female
physiology. It may also happen that though a person is born as
a male, because of some genital anatomy problems his innate
perception may be that of a female and all his actions would
s be female oriented. The position may be exactly the opposite
wherein a person born as female may behave like a male
person.
83. In earlier times though one could observe such
characteristics, at the same time the underlying rationale or
C reason behind such a behavior was not known. Over a period
of time, with in depth study and research of such physical and
psychological factors bevaviour, the causes of this behaviour
have become discernable which in turn, has led to some
changes in societal norms. Society has starting accepting,
D though slowly, these have accepted the behavioral norms of
such persons without treating it as abnormal. Further, medical
science' has leaped forward to such an extent that even
physiology appearance of a person can be changed through
surgical procedures, from male to female and vice-versa. In this
E way, such persons are a!:)le to acquire the body which is in
conformity with the perception of their gender/gender
characteristics. In order to ensure that law also keeps pace with
the aforesaid progress in medical science, various countries
have come out with Legislation conferring rights on such
F persons to recognize their gender identity based on reassigned
sex after undergoing Sex Re-Assignment Surgery (SRS). Law
and judgments given by the courts in other countries have been
exhaustively and grandiloquently traversed by my learned
Brother in his judgment, discussing amongst others, the
G Yogyakarta principles, the relevant provisions of the Universal
Declaration of Human Rights 1948 and highlighting the statutory
framework operating in those countries.
84. The genesis of this recognition lies in the
acknowledgment of another fundamental and universal principal
H
NATIONAL LEGAL SERVICES AUTHORITYv. UNION 221
OF INDIA AND OTHERS [A.K. SIKRI, J.]
viz. "right of choice" given to an individual which is the A
inseparable part of human rights. It is a matter of historical
significance that the 20th Century is often described as "the
age of rights".
85. The most important lesson which was learnt as a result 8
of Second World War was the realization by the Governments
of various countries about the human 'dignity which needed to
be cherished and protected. It is for this reason that in the
U.N.Charter, 1945, adopted immediately after the Second
World War, dignity of the individuals was mentioned as of core C
value. The almost contemporaneous Universal Declaration of
Human Rights (1948) echoed same sentiments.
. . . .'
86. The underlined message in the aforesaid documents
is the acknowledgment that human rights are individual and
have a definite linkage of human development, both sharing D
common vision and with a common purpose. R.espect for
human rights is the root for human development and realization
of full potential of each individual; which in turn leads to the
augmentation of human resources with progre~s of the nation.
Empowerment of the people through human development is the E
aim of human rights. · · · ·
87. There is thus a universal recognition that h.uman rights
, are rights that "belong" to every person, and do not depend on
the specifics of the individual or the relationship between the
F
.right-holder and the right-granter. Moreover, human rights exist
irrespective of the question whether. they are granted or
recognized by the legal and social ~ystem within which we live.
They are devices .to evaluate these existing• arrangements:
ideally, these arrangements should not violate human rights. In
other words, human· rights are moral,· pre-legal hghts. They are G
not granted by people nor can they be taken ~way by them.
' '
'
., 88. In international human rights law, equality is found upon
1
two complementary principles'. non-discr imination and
reasonable differentiation. The principle of noh-discrimination H
222 SUPREME COURT REPORTS [2014] 5 S.C.R.
A seeks to ensure that all persons can equally enjoy and exercise
all their rights and freedoms. Discrimination occurs due to
arbitrary denial of opportunities for equal participation. For
example, when public facilities and services are set on
standards out of the reach of the TGs, it leads to exclusion and
B denial of rights. Equality not only implies preventing
discrimination (example, the protection of individuals against
unfavourable treatment by introducing anti- discrimination laws),
but goes beyond in remedying discrimination against groups
suffering systematic discrimination in society. In concrete terms,
c it means embracing the notion of positive rights, affirmative
action and reasonable accommodation.
89. Nevertheless, the Universal Declaration of Human
Rights recognizes that all human beings are born free and equal
in dignity and rights and, since the Covenant's provisions apply
D fully to all members of society, persons with disabilities are
clearly entitled to the full range of rights recognized in the
Covenant. Moreover, the requirement contained in Article 2 of
the Covenant that the rights enunciated will be exercised
without discrimination of any kind based on certain specified
E grounds or other status clearly applies to cover persons with
disabilities.
90. India attained independence within two years of
adoption of the aforesaid U.N.Charter and it was but natural that
F such a Bill of Rights would assume prime importance insofar
as thinking of the members of the Constituent Assembly goes.
It in fact did and we found chapter on fundamental rights in Part-
111 of the Constitution. It is not necessary for me, keeping in view
the topic of today's discussion, to embark on detailed
G discussion on Chapter-Ill. Some of the provisions relevant for
our purposes would be Article 14, 15,16 and 21 of the
Constitution which have already been adverted to in detail in
the accompanying judgment. At this juncture it also needs to
be emphasized simultaneously is that in addition to the
H fundamental rights, Constitution makers also deemed it proper
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 2?3
OF INDIA AND OTHERS [A.K. SIKRI, J.]
to impose certain obligations on the State in the form of A
"Directive Principles of State Policy" (Part-IV) as a mark of good
governance. It is thi~ part which provides an ideal and purpose
to our Constitution and delineates certain principles which are
fundamental in the governance of the country. Dr.Ambedkar had
explained the purpose of these Directive Principles in the B
following manner (See Constituent Assembly debates):
"The Directive Principles are like the Instruments of
Instructions which were issued to the Governor-General .
and the Governors of Colonies, and to those of India by C
the British Government under the 1935 Government of
India Act. What is called "Directive Principles" is merely
another name for the Instrument of Instructions. The only
difference is that they are instructions to the legislature and
the executive. Whoever capture power will not be free to
do what he likes with it. In the exercise of it he will have to D
respect these instruments of instructio.ns which are called
Directive Principles".
'
91. The basic spirit of our Constitution is to provide each
and every person of the nation equal opportunity to grow as a E
human being, irrespective of race, caste, religion, community
and social status. Granville Austin while analyzing the functioning
of Indian Constitution in first 50 years ha described three
distinguished strands of Indian Constitution: (i)protecting
national unity and integrity, (ii)establishing the institution and F
spirit of democracy; and (iii) fostering social reforms. The
Strands are mutually dependent, and inextricably intertwined in
what he elegantly describes as "a seamless web". And there
cannot be social reforms till it is ensured that each and every
citizen of this country is able to exploit his/her potentials to the G
maximum. The Constitution, although drafted by the Constituent
Assembly, was meant for the people of India and that is why it
is given by the people to themselves as expressed in the
opening words "We the People". What is the most important
gift to the common person given by this Constitution is
H
224 SUPREME COURT REPORTS [2014] 5 S.C.R.
A "fundamental rights" which may be called Human Right3 as well.
92. The concept of equality in Article 14 so also the
meaning of the words 'life', 'liberty' and 'law' in Article 21 have
been considerably enlarged by judicial decisions. Anything
which is not 'reasonable, just and fair' is not treated to be equal
8
and is, therefore, violative of Article 14.
93. Speaking for the vision of our founding fathers, in State
of Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this
Court speaking through Justice Krishna Iyer observed:
c
"The social philosophy of the Constitution shapes
creative judicial vision and orientation. Our nation has, as
its dynamic doctrine, economic democracy sans which
political democracy is chimerical. We say so because our
D Constitution, in Parts Ill and IV and elsewhere, ensouls such
a value system, and the debate in this case puts precisely
this soul in peril.. .. Our thesis is that the dialectics of social
justice should not be missed if the synthesis of Parts Ill and
Part IV is to influence State action and court
pronouncements. Constitutional problems cannot be
E
studied in a socio-economic vacuum, since socio-cultural
changes are the source of the new values,, and sloughing
off old legal thought is part of the process the new equity-
loaded legality. A judge is a social scientist in his role as
constitutional invigilator and fails functionally if he forgets
F this dimension in his complex duties."
94. While interpreting 'Art. 21, this Court has
comprehended such diverse aspects as children in jail entitlep
to special treatment (Sheela Barse vs. Union of India [(1986)3
G SCC 596], health hazard due to pollution (Mehta M.C. v. Union
of India [(1987) 4 SCC 463], beggars interest in housing
(Kalidas Vs. State of J&K [(1987) 3 SCC 430] health hazard
from harmful drugs (Vincent Panikurlangara Vs. Union of India
AIR 1987 SC 990), right of speedy trial (Reghubir Singh Vs.
H State of Bihar, AIR 1987 SC 149), handcuffing of
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 225
OF INDIA AND OTHERS [A.K. SIKRI, J.]
prisoners(Aeltemesh Rein Vs. Union of India, AIR 1988 SC A
1768), delay in execution of death sentence, immediate
medical aid to injured persons(Parmanand Katara Vs. Union
of India, AIR 1989 SC 2039), starvation deaths(Kishen Vs.
State of Orissa, AIR 1989 SC 677), the right to know(Reliance
Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay B
'Pvt. Ltd. AIR 1989SC190), right to open trial(KeharSingh Vs.
State (Delhi Admn.) AIR 1988 SC 1883), inhuman conditions
an after-care home( Vikram Deo Singh Tomar vs: State of
Bihar, AIR 1988 SC 1782).
95. A most remarkable feature of this expansion of Art.21
c
is that many of the non-justiciable Directive Principles
embodied in Part IV of the Constitution have now been
resurrected ~s enforceable fundamental rights by the magic
wand of judicial activism, playing on Art.21 e.g.
D
(a) Right to pollution-free water and air (Subhash Kumar
Vs. State of Bihar, AIR 1991 SC 420).
(b) Right to a reasonable residence (Shantistar Builders
Vs. Narayan Khimalal Totame AIR 1990 SC 630).
E
(c) Right to food (Supra note 14), clothing, decent
environment (supra note 20) and even protection of cultural
heritage (Ram Sharan Autyanuprasi Vs. UOI, AIR 1989 SC
549) .
F
(d) Right of every child to a full development (Shantistar
Buitpers V,:$. Nwa.xar1)<him?IE!l, Totame AIR 1990 SC 630).
(e) Right of residents of hilly-areas to access to
roads(State of H:P. Vs. Urned Ram Sharma, AIR 1986 SC G
847).
(f) Right to education (Mohini Jain Vs. State of Karnataka,
AIR 1992 SC 1858), but not for a professional degree (Unni
Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178).
H
226 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 96. A corollary of this development is that while so long
the negative language of Ar.t.21 and use of the word 'deprived'
was supposed to impose upon the State the negative duty not
to interfere with the life or liberty of an individual without the
sanction of law, the width and amplitude of this provision has
B now imposed a positive obligation (Vincent Panikurlangara Vs.
UOI AIR 1987 SC 990) upon the State to take steps for ensuring
to the individual a better enjoyment of his life and dignity, e.g.
C (i) Maintenance and improvement of public health (Vincent
Panikurlangara Vs. UOI AIR 1987 SC 990).
(ii) Elimination of water and air pollution (Mehta M. C. Vs.
uo1 (1987) 4 sec 463).
0 (iii) Improvement of means of communication (State of H.P.
Vs. Urned Ram Sharma AIR 1986 SC 847).
(iv) Rehabilitation of bonded labourers (Bandhuva Mukti
Morcha Vs. UOI, AIR 1984 SC 802).
E (v) Providing human conditions if prisons (Sher Singh Vs.
State of Punjab AIR 1983 SC 465) and protective homes
(Sheela Barse Vs. UOI (1986) 3 SCC 596).
(vi) Providing hygienic condition in a slaughter-house
F (Buffalo Traders Welfare Ass. Vs. Maneka Gandhi (1994)
Suppl (3) sec 448) .
97. The common golden thread which passes through all
these pronouncements is that Art.21 guarantees enjoyment of
life by all citizens of this country with dignity, viewing this human
G rights in terms of human development.
98. The concepts of justice social, economic and political,
equality of status and of opportunity and of assuring dignity of
the individual incorporated in the Preamble, clearly recognize
H the right of one and all amongst the citizens of these basic
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 227
OF INDIA AND OTHERS [A.K. SIKRI, J.]
essentials designed to flower the citizen's personality to its A
fullest. The concept of equality helps the citizens in reaching
their highest potential.
99. Thus, the emphasis is on the development of an
individual in all respects. The basic principle of the dignity and
8
freedom of the individual is common to all nations, particularly
those having demQcratic set up. Democracy requires us to
respect and develop the free spirit of human being which is
responsfQle: for all progress in human history. Democracy is
also a method by which we attempt to raise the living standard C
of the people and to give opportunities to every person to
develop his/her personality. It is founded on peaceful co-
existence and cooperative living. If democracy is based on the
recognition of the individuality and dignity of man, as a fortiori
we have to recognize the right of a human being to choose his
sex/gender identity which is integral his/her personality and is D
one of the most basic aspect of self-determination dignity and
freedom. In fact, there is a growing recognition that the true
measure of development of a nation is not economic growth; it
is human dignity.
E
100'. More than 225 years ago, Immanuel Kant propounded
the doctrine of free will, namely the free willing individual as a
natural law ideal. Without going into the detail analysis of his
aforesaid theory of justice (as we are not concern.ed with the
analysis of his jurisprudence) what we want to point out is his F
emphasis on the "freedom" of human volition. The concepts of
volition and freedom are "pure", that is not drawn from
experience. They are independent of any particular body of
moral or legal rules. They are presuppositions of all such rules,
valid and necessary for all of them.
G
101. Over a period of time, two divergent interpretations
of the Kantian criterion of justice came to be discussed. One
trend was an increasing stress on the maximum of individual
freedom of action as the end of law. This may not be accepted
and was criticized by the protagonist of 'hedonist utilitarianism', H
228 SUPREME COURT REPORTS [2014] 5 S.C.R.
A notably Benthem. This school of thoughts laid emphasis on the
welfare of the society rather than an individual by propounding
the principle of maximum of happiness to most of the people.
Fortunately, in the instant case, there is no such dichotomy
between the individual freedom/liberty we are discussing, as
B against public good. On the contrary, granting the right to
choose gender leads to public good. The second tendency of
Kantian criterion of justice was found in re-interpreting
"freedom" in terms not merely of absence of restraint but in
terms of attainment of individual perfection. It is this latter trend
C with which we are concerned in the present case and this holds
good even today. As pointed out above, after the Second World
War, in the form of U.N.Charter and thereafter there is more
emphasis on the attainment of individual perfection. In that
united sense at least there is a revival of natural law theory of
justice. Blackstone, in the opening pages in his 'Vattelian
0
Fashion' said that the principal aim of society "is to protect
individuals in the enjoyment of those absolute rights which were
vested in them by the immutable laws of nature ...... "
102. In fact, the recognition that every individual has
E fundamental right to achieve the fullest potential, ,is founded on
the principle that all round growth of an individual leads to
common public good. After all, human beings are also valuable
asset of any country who contribute to the growth and welfare
of their nation and the society. A person who is born with a
F particular sex and his forced to grow up identifying with that
sex, and not .c:i sex that his/her psychqlogical behavior identifies
with, faces innumerable obstacles in growing up. In an article
appeared in the magazine "Eye" of the Sunday Indian Express
(March 9-15, 2014) a person born as a boy but with trappings
G of female (who is now a female after SRS) has narrated these
difficulties in the following manner:
"The other children treated me as a boy, but I preferred
playing with girls. Unfortunately, grown-ups consider that
okay only as long as you are a small child. The constant
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 229
OF INDIA AND OTHERS [A.K. SIKRI, J.]
inner conflict made things difficult for me and, as I grew A
up, I began to dread social interactions".
103. Such a person, carrying dual entity simultaneously,
would encounter mental and psychological difficulties which
would hinder his/her normal mental and even physical growth. B
It is not even easy for such a person to take a decision to
unqergo SRS procedure which requires strong mental state of
affairs. However, once that is decided and the sex is changed
in tune with psychological behavior, it facilitates spending the
life smoothly. Even the process of transition is not smooth. C
The transition .from a man to a woman is not an overnight
process. It is a "painfully" long procedure that requires a lot of
patience. A person must first undergo hormone therapy and, if
possible, live as a member of the desired sex for a while., To
be eligible for hormone therapy, the person needs at least two
psychiatrists to certify that he or she is mentally sound, and D
schizophrenia, depression and transvestism have to be ruled
out first. The psychiatric evaluation involved a serious a
questions on how Sunaina felt, when she got to know of her
confusion and need for sex change, whether she is a recluse,
her,socio-economic condition, among other t~ings. E
104. In the same article appearing in the "Eye" referred
to above, the person who had undergone the operation and
became a complete girl, Sunaina (name changed) narrates the
benefit which ensued becalise of change in sex, in harmony with F
her emotional and psychological character, as is clear from the
f()llowing passage in that article: .,, .,
"Like many other single people in the city, she can
· spend hours watching Friends, and reading thrillers and
· ~Harry Potter. A new happiness has taken seed in her and G
'·· · · : ·Tshe says it does not feel that she ever had a male body. "I
· am a 'person who likes to laugh. Till my surgery, behind
every smile of mine, there was a struggle. Now it's about
time that I laughed for real. I have never had a relationship
in my life, because somewhere, I always wanted'fo be H
230 SUPREME COURT REPORTS [2014] 5 S.C.R.
A treated as a girl. Now, that I am a woman, I am open to a
new life, new relationships. I don't have to hide anymore, I
don't feel trapped anymore. I love coding and my job. I love
cooking. I am learning French and when my left foot
recovers fully, I plan to learn dancing. And, for the first time
B this year, I will vote with my new name. I am looking
forward to that," she says.
105. If a person has changed his/her sex in tune with his/
her gender characteristics and perception ,which has become
possible because of the advancement in medical science, and
c when that is permitted by in medical ethics with no legal
embargo, we do not find any impediment, legal or otherwise,
in giving due recognition to the gender identity based on the
reassign sex after undergoing SRS.
106. For these reasons, we are of the opinion that even
o in the abseQce of any statutory regime in this country, a person
has a constitutional right to get the recognition as male or
female after SRS, which was not only his/her gender
characteristic but has become his/her physical form as well.
(2) Re: Right of TG to be identified and categorized as
E "third gender''.
107. At the outset, it may be clarified that the term
'transgender' is used in a wider sense, in the present age. Even
Gay, Lesbian, bisexual are included by the descriptor
'transgender'. Etymologically, the term 'transgender' is derived
F from two words, namely 'trans' and 'gender'. Former is a Latin
word which means 'across' or 'beyond'. The grammatical
meaning of 'trari'sgender', therefore, is across or beyond
gender. This has come to be known as umbrella term which
includes Gay men, Lesbians, bisexuals, and cross dressers
G within its scope. However, while dealing with the present issue
we are not concerned with this aforesaid wider meaning of the
expression transgender.
108. It is to be emphasized that Transgender in India have
assumed distinct and separate class/category which is not
H prevalent in other parts of the World except in some
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 231
. OF INDIA AND OTHERS [A.K. SIKRI, J.]
'neighbouring countries . In this country, TG community A
~ comprise of Hijaras, enunch, Kothis, Aravanis, Jogappas, Shiv-
Shakthis etc. In Indian community transgender are referred as
Hizra or the third gendered people. There exists wide range of
transgender-related identities, cultures, or experience -including
Hijras, Aravanis, Kothis, jogtas/Jogappas, and Shiv-Shakthis 8
(Hijras: They are biological males who reject their masculinity
identity in due course of time to identify either as women, or
'not men'. Aravanis: Hijras in Tamil Nadu identify as 'Aravani'.
Kathi: Kothis are heterogeneous group. Kothis can be .
described as biological males who show varying degrees of
'feminity'. Jogtas/Jogappas: They are those who are dedicated C
to serve as servant of Goddess Renukha Devi whose temples
are present in Maharashtra and Karnataka. Sometimes, Jogti
Hijras are used to denote such male-to-female transgender
persons who are devotees of Goddess Renukha and are also
from the Hijra community. Shiv-Shakthis: They are considered - D
as males who are possessed by or particularly close· to a
goddess and who have feminine gender expression). The way
they behave and acts differs from the normative gen~r role of
a men and women. For them, furthering life is far more difficult
since such people are neither categorized as men nor women E
and this deviation is unacceptable to society's vast majority.
Endeavour to live a life with dignity is even worse. Obviously
transvestites, the hijra beg from merchants who quickly, under
threat of obscene abuse, respond to the silent demands of
such detested individuals. On occasion, especially festival days,
they press their claims with boisterous and ribald singing and F
dancing.( A Rigl;lt to Exist: Eunuchs and the State in Ninete~nth
Century India Laurence W. Preston Modern Asian Studies,
Vol.21,No.2 (1987), pp.371-387).
109. Therefore, we make it clear at the outset that when
we discuss about the question of conferring distinct identity, we G
are restrictive in our meaning which has to be given to TG
community i.e. hijra etc., as explained above.
110. Their historical background and individual scenario
has been stated. in detail in th'e accompanying judgment H
232 SUPREME COURT REPORTS [2014] 5 S.C.R.
A rendered by my learned Brother. Few things which follow from
this discussion are summed up below:
' "(a) Though in the past TG in India was treated with great
respect. that does not remain the scenario any longer.
Attrition in their status was triggered with the passing of
B the Criminal Tribes Act, 1871 which deemed the entire
community of Hijara persons as innately 'criminal' and
'adapted to the systematic commission of non-bailable
offences'. This dogmatism and indoctrination of Indian
people with aforesaid presumption, was totally capricious
c a.nd nefarious. There could not have been more harm
caused to this community with the passing of the aforesaid
brutal Legislation during British Regime with the vicious
and savage this mind set. To add insult to the irreparable
injury caused, Section 377 of the Indian Penal Code was
misused and abused as there was a tendency, in British
D period, to arrest and prosecute TG persons under Section
377 merely on suspicion. To undergo this sordid historical
harm caused to TGs of India, there is a need for incessant
efforts with effervescence.
(b) There may have been marginal improvement in the
E social and economic condition of TGs in India. It is still far
from satisfactory and these TGs continue to face different
kinds of economic blockade and social degradation. They
still face multiple forms of oppression in this country.
Discrimination qua them is clearly discernable in various
F fields including health care, employment, education, social
cohesion etc.
(c) The TGs are also citizens of this country. They also
have equal right to achieve their full potential as human
beings. For this purpose, not only they are entitled to
G proper education, social assimilation, access to public and
other places but employment opportunities as well. The
discussion above while dealing with the first issue,
therefore, equally applies to this issue as well.
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 233
OF !NOIA AND OTHERS [A.K. SIKRI, J.]
111. We are of the firm opinion that by recognizing such A
TGs as third gender, they would be able to enjoy their human
rights, to which they are largely deprived of for want of this
.recognition. As mentioned above, the issue of transgender is
not merely a social or medical issue but there is a need to
adopt human right approach towards transgenders which may 8
focus on functioning as an interaction between a person and
their environment highlighting the role of society and changing
the stigma attached to them. TGs face many disadvantages
due to various reasons, particularly for gender abnormality
which in certain level needs to physical and mental disability.
Up till recently they were subjected to cruelty, pity or charity. · C
Fortunately, there is a paradigm shift in thinking from the
aforesaid approach to a rights based approach. Though, this
may be the thinking of human rights activist, the society has not
kept pace with this shift. There appears to be limited. public
knowledge and understanding of same-sex sexual orientation D
and people whose gender identity and expression are
incongruent with their biological sex. As a result of this approach,
such persons are socially excluded from the mainstream of the
society and they are denied equal access to those fundamental
rights and freedoms that the other people enjoy freely.(See, E
Hijras/Transgender Women in India: HIV, Human Rights and
Social Exclusion, UNDP report on India Issue: December,
2010).
112. Some of the common and reported problem that
transgender most commonly suffer are: harassment by the .. F
police in public places, harassment at home, police entrapment,
rape, discriminations, abuse in public places et.al. The other
major problems that the transgender people face in their daily
life are discrimination, lack of educational facilities, ·1ack of
medical facilities, homelessness, unemployment, depression, G
hormone pill abuse, tobacco and alcohol abuse, and problems
related to marriage and adoption. In spite of the adoption of
Universal Declaration of Human Rights (UDHR) in the year
1948, the inherent dignity, equality, respect and rights of all
human beings throughout the world, the transgender are denied
H
234 SUPREME COURT REPORTS [2014] 5 S.C.R.
A basic human rights. This denial is premised on a prevalent
juridical assumption that the law should target discrimination
based on sex (i.e., whether a person is anatomically male or
female), rather than gender (i.e., whether a person has qualities
that society consider masculine or feminine (Katherine
8 M.Franke, The Central Mistake of Sex Discrimination Law: the
Disaggregation of Sex from Gender, 144 U.Pa.Rev.1,3 (1995)
(arguing that by defining sex in biological terms, the law has
failed to distinguish sex from gender, and sexual differentiation
from sex discrimination). Transgender people are generally
excluded from the society and people think transgenderism as
C a medical disease. Much like the disability, which in earlier
times was considered as an illness but later on looked upon
as a right based approach. The question whether
transgenderism is a disease is hotly debated in both the
transgender and medical-psychiatric communities. But a
D prevalent view regarding this is that transgenderism is not a
disease at all, but a benign normal variant of the human
experience akin to left-handedness.
113. Therefore, gender identification becomes very
essential component which is required for enjoying civil rights
E by this community. It is only with thi~ recognition that many rights
attached to the sexual recognition as 'third gender' would be
available to this community more meaningfully viz. the right to
vote, the right to own property, the right to marry, the right to
claim a formal identity through a passport and a ration card, a
F driver's license, the right to education, employment, health so
on.
114. Further, there seems to be no reason why a
transgender must be denied of basic human rights which
includes Right to life and liberty with dignity, Right to Privacy
G and freedom of expression, Right to Education and
Empowerment, Right against violence, Right against
Exploitation and Right against Discrimination. Constitution has
fulfilled its duty of providing rights to transgenders. Now it's time
for us to recognize this and to extend and interpret the
H Constitution in such a manner to ensure a dignified life of
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 235
OF INDIA AND OTHERS [AK. SIKRI, J.]
transgender people. All this can be achieved if the beginning . A
is made with the recognition that TG as third gender.
115. In order to translate the aforesaid rights of TGs into
reality, it becomes imperative to first assign them their proper
'sex'. As is stated earlier, at the time of birth of a child itself,
sex is assigned. However, it is either male or female. In the B
process, the society as well as law, has completely ignored the
basic human right of TGs to give them their appropriate sex
categorization. Up to now, they have either been treated as male
or female. This is not only improper as it is far from truth, but
indignified to these TGs and violates their hul')'lan rights. c
116. Though there may not be any statutory regime
recognizing 'third gender' for these TGs. However, we find
enough justification to recognize this right of theirs in.natural law
sphere. Further, such a justification can be traced to the various
provisions contained in Part Ill of the Constitution relating to o
'Fundamental Rights'. In addition to the powerful justification
accomplished in the accompanying opinion of my esteemed
Brother, additional raison d'etre for this conclusion is stated
hereinafter.
117. We are in the age of democracy, that too substantive E
and liberal democracy. Such a democracy is not based solely
on the rule of people through their representatives' namely
formal democracy. It also has other percepts like Rule of Law,
human rights, independence of judiciary, separation of powers
etc. F
118. There is a recognition to the hard realty that without
protection for human rights there can be no democracy and no
justification for democracy. In this scenario, while working within
the realm of separation of powers (which is also fundamental
to the substantive democracy), the judicial role is not only to G
decide the dispute before ,the Court, but to uphold the rule of
law and ensure access fo justice to the marginalized section
of the society. It cannot be denied that TGs. belong to me
unprivileged class which is a marginalized section.
119. The role of the Court is to understand the central H.
236 SUPREME COURT REPORTS [2014] 5 S.C.R.
A purpose and theme of the Constitution for the welfare of the
society. Our Constitution, like the law of the society, is a living
organism. It is based on a factual and social realty that is
constantly changing. Sometimes a change in the law precedes
societal change and is even intended to stimulate it.
8 Sometimes, a change in the law is the result in the social realty.
When we discuss about the rights of TGs in the constitutional
context, we find that in order to bring about complete paradigm
shift, law has to play more pre-dominant role. As TGs in India,
are neither male nor female, treating them as belonging to either
of the aforesaid categories, is the denial of these constitutional
C rights. It is the denial of social justice which in turn has the effect
·of denying political and economic justice.
120. In Dattatraya Govind Mahajan vs. State of
Maharashtra (AIR 1977 SC 915) this Court observed:
D "Our Constitution is a tryst with destiny, preamble
with luscent solemnity in the words 'Justice - social,
economic and political.' The three great branches of
Government, as creatures of the Constitution, must
remember this promise in their fundamental role and forget
it at their peril, for to do so will be a betrayal of chose high
E values and goals which this nation set for itself in its
objectivE~ Resolution and whose elaborate summation
appears in Part IV of the Paramount Parchment. The
history of our country's struggle for independence was the
story of a battle between the forces of socio-economic
F exploitation and the masses of deprived people of varying
degrees and the Constitution sets the new sights of the
nation ..... Once we grasp the dharma of the Constitution,
the new orientation of the karma of adjudication becomes
clear. Our founding fathers, aware of our social realities,
G forged our fighting faith and integrating justice in its social,
economic and political aspects. While contemplating the
meaning of the Articles of the Organic Law, the Supreme
Court shall not disown Social Justice."
121. Oliver Wendlle Holmes said: "the life of law has been
H logical; it has been experience". It may be added that 'the life
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 237
OF INDIA AND OTHERS [A.K. SIKRI, J.]
of law is not just logic or experience. The life of law is renewable A
based on experience and logic, which adapted law to the new
social realty'. Recognizing this fact, the aforesaid provisions of
the Constitution are required to be given new and dynamic
meaning with the inclusion of rights of TGs as well. In this
process, the first and foremost right is to recognize TGs as 'third 8
gender' in law as well. This is a recognition of their right of
equality enshrined in Art.14 as well as their human right to life
with dignity, which is the mandate of the Art.21 of the
Constitution. This interpretation is in consonance with new social
needs. By doing so, this Court is only bridging the gap between C
the law and life and that is the primary role of the Court in a
democracy. It only amounts to giving purposive interpretation
to the aforesaid provisions of the Constitution so that it can
adapt to the changes in realty. Law without purpose has no
raison d'etre. The purpose of law is the evolution of a happy
society. As Justice Iyer has aptly put: . D
"The purpose of law is the establishment of the
welfare of society "and a society whose members enjoy
welfare and happiness may be described as a just society.
It is a negation of justice to say that some members, some
groups, some minorities, some individual~ do not have E
welfare: on the other hand they suffer from ill-fare. So.it is
axiomatic that law, if it is to fulfil itself, must produce a
contented, dynamic society which is at once meting out
justice to its members."
122. It is now very well recognized that the Constitution is F
a living character; its interpretation must be dynamic. It must
be understood in a way that intricate and advances modern
realty. The judiciary is the guardian of the Constitution and by
ensuring to grant legitimate right that is due to TGs, we are
simply protecting the Constitution and the democracy inasmuch G
as judicial protection and democracy in general and of human
rights in particular is a characteristic of our vibrant democracy.
123. As we have pointed out above, our Constitution
inheres liberal and substantive democracy with rule of law as
H
238 SUPREME COURT REPORTS [2014] 5 S.C.R.
A an important and fundamental pillar. It has its 0·wn internal
morality based on dignity and equality of all human beings. Rule
of law demands protection of individual human rights. Such
rights are to be guaranteed to each and every human being.
These TGs, even though insignificant in numbers, are still
8 human beings and therefore they have every right to enjoy their
human rights.
124. In National Human Rights Commission vs. State of
Arunachal Pradesh (AIR 1996 SC 1234), This Court observed:
"We are a country governed by the Rule of Law. Our
c Constitution confers certain rights on every human being
and certain other rights on citizens. Every person is entitled
to equality before the law and equal protection of the laws."
125. The rule of law is not merely public order. The rule of
law is social justice based on public order. The law exists to
D ensure proper social life. Social life, however, is not a goal in
itself but a means to allow the individual to life in dignity and
development himself. The human being and human rights
underlie this substantive perception of the rule of law, with a
proper balance among the different rights and between human
F rights and the proper needs of society. The substantive rule of
law "is the rule of pro1:fer law, which balances the needs of
society and the individual." This is the rule of law that strikes a
balance between society's need for political independence,
social equality, economic development, and internal order, on
F the one hand, and the needs of the individual, his personal
liberty, and his human dignity on the other. It is the duty of the
Court to protect this rich concept of the rule of law.
126. By recognizing TGs as third gender, this Court is not
only upholding the rule of law but also advancing justice to the
G class, so far deprived of their legitimate natural and
constitutional rights. It is, therefore, the only just solution which
ensures justice not only to TGs but also justice to the society
as well. Social justice does not mean equality before law in
papers but to translate the spirit of the Constitution, enshrined
H in the Preamble, the Fundamental Rights and the Directive
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 239
OF INDIA AND OTHERS [A.K. SIKRI, J.]
Principles of State Policy into action, whose arms are long A
enough to bring within its reach and embrace this right of
recognition to the TGs which legitimately belongs to them.
127. Aristotle opined that treating all equal things equal
and all unequal things unequal amounts to justice. Kant was of
the view that at the basis of all conceptions of justice, no matter B
which culture or religion has inspired them, lies the golden rule
that you should treat others as you would want everybody to treat
everybody else, including yourself. When Locke conceived of
individual liberties, the individuals he had in mind were
independently rich males. Similarly, Kant thought of c
economically self-sufficient males as the only possible citizens
of a liberal democratic state. These theories may not be
relevant in today's context as it is perceived that the bias of their
perspective is all too obvious to us. In post-traditional liberal
democratic theories of justice, the background assumption is
that humans have equal value and should, therefore, be treated 0
as equal, as well as by equal laws. This can be described as
· 'Reflective Equilibrium'. The method of Reflective Equilibrium
was first introduced by Nelson Goodman in 'Fact, Fiction and
Forecast' (1955). However, it is john Rawls who elaborated
this method of Refl.ective Equilibrium by introducing the E
conception of 'Justice as Fairness'. In his 'Theory of Justice',
Rawls has proposed a model of just institutions for democratic
societies. Herein he draws on certain pre-theoretical
elementary moral beliefs ('considered judgments'), which he
assumes most members of democratic societies would accept. F
"[Justice as fairness [ .... ] tries to draw solely upon basic
intuitive ideas that are embedded in the political institutions of
a constitutional democratic regime and the public traditions of
their interpretations. Justice as fairness is a political conception
in part because it starts from within a certain political tradition. G
Based on this preliminary understanding of just institutions in
a democratic society, Rawls aims at a set of universalistic rules
with the help of which the justice of present formal and informal
institutions can be assessed. The ensuing conception of justice
is called 'justice as fairness'. When we combine Rawls 1s
H
240 SUPREME COURT REPORTS [2014] 5 S.C.R.
A notion of Justice as Fairness with the notions of Distributive
Justice, to which Noble Laureate Prof. Amartya Sen has also
subscribed, we get jurisprudential basis for doing justice to the
Vulnerable Groups· which definitely include TGs. Once it is
accepted that the TGs are also part of vulnerable groups and
marginalized section of the society, we are only bringing them
8
within the fold of aforesaid rights recognized in respect of other
classes falling in the marginalized group. This is the minimum
riposte in an attempt to assuage the insult and injury suffered
by them so far as to pave way for fast tracking the realization
of their human rights.
c
128. The aforesaid, thus, are my reasons for treating TGs
as 'third gender' for the purposes of safeguarding and enforcing
appropriately their rights guaranteed under the Constitution.
These are my reasons in support of our Constitution to the two
issues in these petitions.
D
129. We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary gender, be
treated as "third gender" for the purpose of
safeguarding their rights under Part Ill of our
E Constitution and the laws made by the Parliament
and the State Legislature.
(2) Transgender persons' right to decide their self-
identified gender is also upheld and the Centre and
State Governments are directed to grant legal
F recognition of their gender identity such as male,
female or as third gender.
(3) We direct the Centre and the State Governments
to take steps to treat them as socially and
educationally backward classes of citizens and
G extend all kinds of reservation in cases of
admission in educational institutions and for public
appointments.
(4) Centre and State Governments are directed to
operate separate HIV Sero-survellance Centres
H
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 241
OF INDIA AND OTHERS
since Hijras/ Transgenders face several sexual A
_ .. health issues.
(5) Centre and State Governments should seriously
address the problems being faced by Hijras/
Transgenders such as fear, shame, gender
dysphoria, social pressure, depression, suicidal B
tendencies, social stigma, etc. and any insistence
for SRS for declaring one's gender is immoral and
illegal.
(6) Centre and State Governments should take proper
measures to provide medical care to TGs in the C
hospitals and also provide them separate public
toilets and other facilities.
(7) Centre and State Governments should also take
steps for framing various social welfare schemes
for their betterment. 0
\
(8) Centre and State Governments should take steps
to create public awareness so that TGs will feel that
they are also part and parcel of the social life and
be not treated as untouchables.
E
(9) Centre and the State Governments should also fake
measures to regain their respect and place in the
society which once they enjoyed in our cultural and
social life.
130. We are informed an Expert Committee has already F
been constituted to make an in-depth study of the problems
faced by the Transgender community and suggest measures
that can be taken by the Government to ameliorate their
problems and to submit its report with recommendations within
three months of its constitution. Let the recommendations be G
examined based on the legal declaration made in this
Judgment and implemented within six months.
131. Writ Petitions are, accordingly, allowed, as above.
Devika Gujral Writ Petitions allowed.
H
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