UNDERPRIVILEGED IN NEED: NALSA AS A FRIEND INDEED
This article is written by Kaustubh Kumar, Law Student at National University of Study and Research in Law, Ranchi, and Hani Dipti, Law Student at Chanakya National Law University, Patna.
National Legal Services Authorities Act, 1987 (“Act”) was passed on October 11, 1987. However, it took nearly eight years for the government to implement the same. On November 09, 1995, the Act was implemented through a gazette notification by the Government of India. Under the Act, National Legal Service Authority (“NALSA”) was established at the national level as the apex central authority governing or directing all other authorities and committees formulated by the Act. Chief Justice of India serves as Patron-in-chief, while the senior-most judge of the Hon’ble Supreme Court serves as the Executive Chairman of NALSA. The vision of NALSA, “To promote an inclusive legal system in order to ensure fair and meaningful justice to the marginalized and disadvantaged sector” itself states the motive behind the creation of the authority. Since the creation of the authority, it has played an active role in the development of the nation by helping the most underprivileged strata through its various schemes and free legal services. Similarly, in 2012, NALSA considered the plight of the Transgender community and helped them in coming out of the sludge by assisting and extending its help. This led to the judgment where the Apex court gave them ‘legal’ recognition as ‘third gender’ and also considered their rights under the purview of fundamental rights. The article attempts to analyse the pivotal role played by NALSA in protecting the interest of the underprivileged section (i.e., Transgenders) with the help of the landmark case of NALSA vs. UOI.
WHO ARE TRANSGENDERS AND WHY THEY ARE UNDERPRIVILEGED?
The Transgender Persons (Protection of Rights) Act, 2019, formulated after the direction issued to the government by the Apex court in NALSA vs. UOI which defines “Transgender person as ‘a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as a kinner, hijra, aravani and jogta.” However, it is argued that the definition is narrow and shows a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. Considering the question that why transgenders are underprivileged, the Supreme Court went through the historical aspects presented by the petitioners where the instances of Hindu philosophy, Vedic, and Puranic literatures were quoted. In Indian history, transgenders were given a special and sacred status. They played an important role in different royal courts and are considered to have a special privilege in giving blessings and curses. In Vedas, there is also a discussion about transgender as “The Man Mahadev get inspired with Pushpadanta who himself was the Kinner and he was a great scholar and a poet.” It shows that the condition of transgenders in past was better than the present scenario of the post-modern world. However, the golden era where the transgenders were treated with respect came to an end immediately after the colonialization of India by the British forces. After British rule, the same was followed and transgenders were treated in an inhumane manner and oppressed. Considering the plight of this underprivileged community, NALSA came forward and by filing a petition on behalf of the whole community attempted to ensure fair and meaningful justice.
WHAT WAS THE CASE ALL ABOUT?
In 2012, the National Legal Services Authority filed a writ petition in the Supreme Court of India. The petition sought a legal declaration of the gender identity than one assigned at the time of birth for transgenders. It was followed by ‘Poojya Mata Nasib Kaur Ji Women Welfare Society’, a non-governmental organization protecting the rights of Kinnar (Transgender) community and an individual named Laxmi Narayan Tripathi, who identified himself as a Hijra, and claimed that his rights under Article 14 and Article 21 were being denied and the Court should intervene so that he and other individuals from his communities are not discriminated further. The petition brought a legal declaration of their gender identity than one assigned at the time of birth and are neither treated as male or females nor given the status of the third gender. Non-recognition of their gender identity violates Articles 14 viz. guaranteeing equality before the law and Article 21 viz. guaranteeing right to life and liberty of the Constitution of India. The transgender community urged that their inability to express themselves in terms of a binary gender prohibits them from the various rights and equal protection of the law that other members of the society enjoy. They also demanded legal protection as a neglected community, as well as the right to be able to express their self-recognized gender in government schemes and forms.
WHAT ROLE NALSA PLAYED IN HELPING THEM?
NALSA being the main petitioner appointed different counselors to present the interest of the community. NALSA through its counselor draws the attention of the Court to the traumatic experiences faced by the members of the Transgender community and submitted that every person of that community has a legal right to decide their sexual orientation and to espouse and determine their identity. Moreover, it stated that since the transgenders are 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 individuals enjoy as citizens of this country. Further, it was submitted that transgenders are deprived of social and cultural participation and hence, restricted access to education, health care, and public places that deprive them of the constitutional guarantee of equality before the law and equal protection of laws enjoyed by each citizen of India by virtue of Article 15. They are also deprived of employment which results in the violation of Article 16. It was pointed out that the community also faces discrimination to contest an election, right to vote, employment, to get licenses, etc. and, in effect, treated as an outcast and untouchable. Hence, at last, NALSA requested the court to consider the plight of the community as the State cannot discriminate them on the ground of gender, violating Articles 14, 15, 16, and 21 of the Constitution of India.
The article attempted to analyze one of the landmark judgments in the history of India that has been cited in different international cases as a precedent by focusing on the major role that NALSA played in protecting the interests of the underprivileged and marginalized section of the society. Accepting the submissions made by NALSA, the Supreme Court outlined Article 14, Article 19(1)(a) viz. freedom of speech and expression as gender-neutral terms and applicable for each person. Further, it prohibited any discrimination against transgenders considering it as a violation of Article 15 and Article 16. The Court also took notice of the sex-identity and treated it as the ‘dignity’ of the transgenders under Article 21. Also, recognizing “third gender” as “socially and educationally” backward class of the society, the court entitled reservations in educational institutions and public services, and directed the government that schemes must be framed for their betterment and public awareness as well. The way NALSA actively came out, in this case, should be appreciated and given due consideration. However, since the enactment of the Act and the creation of NALSA, this was the only case where NALSA came boldly to face the evil prevalent in society. There are various other issues such as but not limited to hate crimes against women with disabilities, pending justice, poor policing where NALSA should also help the victims/citizens so that they might also enjoy the rights and freedoms entitled to them without constraints.