NALSA vs Union of India
India is one of the most religiously and traditionally diverse nation in the entire world .The very concept of hijras and other transgender in India is not a few concept , they have been recognized in our ancient history as well . Transgenders community comprises of Hijras , eunuchs ,kothis, Aravanis, Jogappas, Shivshaktis etc. and they as a group have got a strong historical presence in our country.
Lord Rama , in the epic Ramayana, was leaving for the forest upon being banished from the kingdom for 14 years turns around to his followers and ask all 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 to 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 Hindu mythology, Bahuchara Mata who is a Hindu goddess is considered as the patronage of the hijra community in India.
In August 1852, a eunuch called Bhoorah was found brutally murdered in Northern India ,Manipur district .
She lived in what was then the North – west provinces with 2 disciples and a male lover performing and accepting gifts at auspicious occasions like births of children and at weddings in public. She had left her lover for another man before she was killed. British judges were convinced that her former lover had killed her in a fit of rage . During the trial they described eunuchs as cross- dressers , beggers and unnatural prostitutes .
British officials began considering eunuchs “ungovernanable” commentators said they evoked images of “filth, disease, contagion and contamination.” They were portrayed as people who were a addicted to sex with men.”
Colonial officials said they were not only a danger to “public morals” but also a threat to Colonial political authority.
Years after her murder, the provinces launched a campaign to reduce the no of eunuchs with the objective of gradually causing their “ extinction “ . They were considered a “ criminal tribe “ under a controversial 1871 laws which targeted caste groups considered to be hereditary criminals . The law armed the police with power of increased surveillance of the community. Police compiled registers of eunuchs with their personal details , often defining “ an eunuch as a criminal and sexually duriant person”.
One of the most shocking moves of the authorities was to take away children who were living with eunuchs to “rescue them from a life of infamy.” If eunuchs were living with a male child , they risked fines and jail.
NALSA vs union of India
This case was filed by the National legal Services Authority of India (NALSA) to legally recognize persons who fall outside the male /female gender binary including persons who identify as “ third gender” . From having a good reputation in society since historic periods to being reduced to positions of beggers due to 1871 act it was a long way.
Though 1871 Act was repealed in 1949,the sentiment behind the law remained strong. Transgender people were shunned and ridiculed and denied education and employment. It was only three years ago that the first progressive judgement in their favor was passed by the Supreme Court in the National Legal Services Authority (NALSA) vs Union of India case.
This was a landmark decision where the apex court legally recognized “ third gender” / transgender persons for the first time and discussed gender identity at length . The court recognized that third gender person persons were entitled to fundamental rights under the constitution and under International law.
Definition of third gender
The golden thread that runs through the equality scheme of the Indian constitution ( Article 14,15,16 ,19 and 21) is enjoyment of life by all citizens and an equal opportunity to grow as human beings irrespective of their race, caste, religion, community, social status and gender .
One of the basic tenets of the equality scheme lies in the recognition and Acknowledgement of the right of choice and self determination. Determination of the gender to which a person belongs and relates is intrinsic to their right of self determination and their dignity.
In the case of NALSA vs Union of India the court upheld the right of all persons to self identity their gender .Further , it declared that hijras and eunuchs can legally identify as “third gender”.
The court said that gender identity can’t be on the basis of biological characteristics but to inmate percent ones gender.
Court drew attention to fact that transgender have to face extreme discrimination in all spheres of society which was a violation of their right to equality.
Court said that under Art 15 and 16 sex doesn’t apply to biological attributes ( such as chromosomes, genitalia and sexual characteristics) but also includes “gender”.
Fundamental Rights
- Article 14:- This shall states that state can’t deny any person equality before the law or the equal protection of the laws within the territory of India. It doesn’t restrict the word ‘person’ and its application only to male or female. Hijras fall into a person shouldn’t be denied equality.
- Article 15 and 16:- It prohibits discrimination against any citizen on certain enumerated grounds including the ground of ‘sex’.
- Art 21 :- It reads as No person shall be deprived of his life or personal like except according to procedure established by law.
- Section 377 of the IPC found place in the IPC , 1860,prior to the enactment of Criminal Tribles 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 practice.
During the hearing of this case court also looked into Corbett vs Corbett: The court in England was concerned with the gender of male to female transsexuals in the context of validity of a marriage. In this case , the court said that the laws should adopt the chromosomal, gonadal and genital test and if all three are congruent, that should determine a persons sex for the purpose of Marriage.
But even a landmark case can’t change the identity of Transgenders till society doesn’t change its approach towards them
Also Read: Rights of undertrial prisoners in India
