NALSA v. Union of India (2014)

Citation – (2014) 5 SCC 438

Court – Supreme Court of India

Bench – Justice K.S. Radhakrishnan and Justice A.K. Sikri

Date of Judgement – April 15, 2014

Introduction

The case NALSA v. Union of India (2014)[1], is a landmark case in which the court recognized the rights of the transgender. The Court impressed that transgender individuals made a third gender, and they could enjoy fundamental rights by the Indian Constitution provisions. It inserted the right to self-identification in the rights-framework and further gave positive guidelines to the Union and State governments to grant transgender people equality, dignity, and socio-economic welfare.[2]

Facts

The National Legal Services Authority (NALSA) and a few transgenders and various organizations filed the petition in which they requested to recognize the rights of transgender people, non-discrimination, and certain reliefs like the legal recognition of gender identity, welfare, reservations in education and employment, and the benefits of healthcare and legal redress.

The petitioners pointed to systemic discriminations like the absence of legal identity documents reflecting self-identified gender, exclusion of public schemes, harassment and violence, and lack of healthcare, ostracism, and an absence of educational and employment opportunities and criminalization or stigmatization of hijras, eunuchs, transmen and transwomen in the past. It involved an application of rights under the Articles 14[3], 15[4], 16[5], 19[6], and 21[7] of the Constitution and guidelines on protective measures.[8] [9]

Issues

1. Whether transgender individuals are a representative group that undergoes protection by Articles 14, 15, 16 and 21.
2. Whether the government has the duty to accept the gender identity of transgender people and whether they are entitled to legal acknowledgment (including identity documents) based on how they identify themselves.
3. Whether transgender persons should be provided with reservation/affirmative action in education and employment.
4. What are the good steps to be followed by the state concerning welfare, their health care, education and social inclusion of transgender.
5. Whether there is ability of the current statutory provisions and historic judicial strategies to adequately safeguard the rights of transgender persons.[10]

Judgement

Conclusions of court –

• Identity, dignity and liberty: The Court determined that gender identity is inseparably connected with individual liberty and dignity in the Article 21. Articles 14 and 15 are violated because of discrimination of transgender persons.
• Third gender recognition: The transgender people (including hijras, eunuchs, transmen and transwomen) were acknowledged as a third gender, who must have equal protection by the Constitution. The Court recognized past and social marginalization and economic deprivation.
• Right to self-identification: The Court ratified that gender is a matter of self-perception, hence the right of an individual to choose their gender needs to be honored. The Court explained that the conditionality of the state recognition was not based on genital surgery or any medical operation.
• Affirmative action and a backward class status: The Court, seeing the social and educational backwardness, issued an order that transgender persons were treated by the State and Central governments as a socially and educationally backward class so that they could be reserved in education and public employment just as modalities were permitted to be worked out by the Executive/legislature.
• The positive duties of the State: The Court interpreted the Articles 14, 15, 16 and 21 to mean that the State has positive responsibilities toward the welfare and healthcare of its population, access to education and work, legal recognition of transgender individuals by assigning them gender identities, and protection against violence and discrimination of transgender individuals.

Measures

The report made action-oriented descriptions of what should be done by Union and State governments; the following are salient ones –

• Legal status: The issuance of identity cards/records that acknowledge the self-identification of gender, and does not mandate medical interventions; and change of administrative forms and databases to create the third gender.
• Reservation and welfare: Sport transgender individuals as backward classes socially and educationally; provide them with welfare schemes (pensions, housing, social security, etc.); create special programmes in education, vocation training and employment.
• Healthcare: Provide gender affirms health care services, mental care, HIV prevention, and treatment, and transgender inclusion in medical education. Hospitals in a government to offer such care and recovery.
• Law enforcement and police reforms: Police and judicial officer sensitization, development of SOPs to deal with sensitive treatment and actual safety against violence and sex.
• Separate wards or institutional accommodations: Where necessary in hospitals, prisons and shelters, provision of separate wards or facilities; non-discriminatory access to general services.
• Awareness and sensitization campaigns: Education of the general officials, teachers, health professionals and popular awareness to air out stigma.
• Checking: The establishment of checks by having supervisory committees and making frequent reports to the Supreme Court to check on compliance.[11]

Impact of the judgment

• Historic significance: It was the first decision to state statutory-style instructions in which transgender persons having constitutional rights were acknowledged by the Supreme Court and that affirmative action of states was necessary.
• Policy and administrative changes: Numerous central and states governments started to modify applications forms and databases and add a third gender option; some welfare schemes were made or adjusted and reservation and other protection debates were held.
• Legislation and institutional changes: The decision stimulated lawmaking and policymaking. It had an impact on subsequent arguments related to the Transgender Persons (Protection of Rights) Act, 2019[12] and other state regulations / notifications that are supposed to address the judgment.
• Discourse rights: The ruling became the basis of transgender rights movement in India – a legal acknowledgement of dignity, identity and socio-economic inclusion established in the constitution.[13]

Critical analysis

Strengths of the judgment:

• Progressive constitutional interpretation: The Court applied the inclusive interpretation of Articles 14, 15 and 21 to give broad coverage of protection and dignity to a marginalized group of people.
• The focus on self-identification: Two important human-rights based advances were the focus on the predominance of self-determination in gender identity.
• Elaborate, applied instructions: The Court did not confine itself to the declaration of the principles, but made clear detailed instructions to the Union and the States on how to put them into practice.
• Recognition of affirmative action: The state guide on reservation consideration directed in favor of transgender individuals the actual disadvantages of their structure.

Limitations:

• Alignment gap: Numerous paths had to be taken legislatively, and had to be resourced and administratively endorsed. The application to the states and the Union Ministries has been skewed with some of the recommendations taking years to be implemented.
• Reserved to state policy: The Court recommended treating transgender persons as backward classes, although this was without a specific formula, a particular percentage, or a specific mechanism. This rendered substantive relief to be at the mercy of political processes.
• Response by the executive and legislature: Since that time, many activists and legal commentators have criticized the projects of the ensuing legislative action; Transgender Persons (Protection of Rights) Act, 2019, as being inconsistent with NALSA, especially insofar as the 2019 act has created bureaucratic processes called certification and criminalization of same-sex identification, which could run counter to the principle of self-identification enshrined by the Court.
• Low urgent material assistance: Awareness but not adequate; structural socio-economic exclusion needs to have a long-term focused budget and affirmative schemes that many states have not ranked highly.
• Medical and prison systems: There was still limited capacity in the institutional structure of both the public health and penal systems to address gender affirming care and non-discriminatory treatment.

Conclusion

The case, NALSA v. Union of India (2014), is a groundbreaking constitutional case that changed the Indian constitutional jurisprudence on gender and identity by making transgender persons a separate class, right to self-identify, and a directive to affirmative state action to facilitate social inclusion. The decision is regarded as one of the examples of judicial activism to correct the systemic exclusion and to secure the human dignity.

Meanwhile, the full potential of the judgment is yet to be fulfilled. It has been rolled out sporadically; policy measures have been uneven and marginalization of transgender people on socio-economic grounds continues to happen. The NALSA ruling offers both constitutional and normative rationale; transforming those guidelines to institutionalized popular policy, material reservations to the fullest degree of social receptance, political intent, administrative intervention, sufficient resources and constant judicial supervision where appropriate. The ruling is still the key instrument that activists, policymakers and courts may use to promote equality, dignity and justice to transgender people in India.

References:

[1] NALSA v. Union of India (2014) 5 SCC 438 (India)

[2] Proposed Amendments to the Transgender Persons (Protection of Rights) Act, 2019, KANOONIYAT (July 2, 2021), https://kanooniyat.com/2021/07/proposed-amendments-to-the-transgender-persons-protection-of-rights-act-2019/

[3] India Const. art. 14

[4] India Const. art. 15

[5] India Const. art. 16

[6] India Const. art. 19

[7] India Const. art. 21

[8] Saomya Shreya, ANALYZING THE RIGHT TO EDUCATION FOR TRANSGENDER IN INDIA, JUS CORPUS (Aug. 25, 2024),  https://www.juscorpus.com/analyzing-the-right-to-education-for-transgender-in-india/

[9] Aditya, NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS UNION OF INDIA || (2014) 5 SCC 438  || Transgender Case, BENCH NOTES (Mar. 7, 2025), https://www.benchnotes.in/post/national-legal-services-authority-nalsa-vs-union-of-india-2014-5-scc-438-transgender-case

[10] RESERVATION FOR THE TRANSGENDER COMMUNITY, IAS GYAN, https://www.iasgyan.in/daily-current-affairs/reservation-for-the-transgender-community

[11] Harsh Gupta, The Conflict between the Transgender Persons Ac, 2019, and the NALSA v. Union of India verdict of 2014, iPleaders Blog (Sept. 26, 2021), https://blog.ipleaders.in/conflict-between-transgender-persons-act-2019-nalsa-uoi-verdict-2014/

[12] Transgender Persons (Protection of Rights) Act, 2019

[13] Sarayu, Transgender Persons Protection of Rights Act – Key Points, WRTING LAW,  https://www.writinglaw.com/transgender-persons-protection-of-rights-act/