Public International Law

NATIONAL LEGAL SERVICES AUTHORITY V.
UNION OF INDIA, (2014)

5 SCC 438
BRIEF BY DHAWAL SHARMA
Facts
The case of National Legal Services Authority v. Union of India is a landmark judgment by the
Supreme Court of India, which was delivered on April 15, 2014. This case is often cited as a
significant advancement in the legal recognition of transgender rights in India. The petitioner in
this case was the National Legal Services Authority (NALSA), which was established under the
Legal Services Authorities Act, 1987. The respondent in this matter was the Union of India.
The genesis of this case lies in the long-standing grievances and demands of the transgender
community in India for recognition of their gender identity and rights. The transgender
community, often sidelined and stigmatized, has faced discrimination and denial of basic rights
afforded to other citizens. The lack of formal recognition of their gender identity in public
documents compounded their difficulties in accessing education, healthcare, employment, and
justice.
NALSA, along with various NGOs and activists, filed a writ petition in the Supreme Court under
Article 32 of the Constitution of India. The petition sought legal recognition for individuals who
identify themselves as transgender and called for directions to the government to provide them
with the same rights and entitlements as other male and female citizens in terms of education,
health, employment, and protection from discrimination and violence.
Legal Issues
The primary legal issues addressed in this case involved:
1. Recognition of Gender Identity: Whether individuals have a right to be recognized according
to their self-identified gender rather than the biological sex assigned at birth.
2. Fundamental Rights: Whether the non-recognition of transgender individuals' identities in
official records violates their fundamental rights under Articles 14, 15, 16, 19, and 21 of the
Constitution.
3. Directive Principles and International Law: The applicability of the Directive Principles of
State Policy and international conventions to which India is a party, concerning the rights of
transgender individuals.
Legal Analysis
The Supreme Court's analysis in this case was deeply rooted in the constitutional framework of
India, interpretations of various precedents, and international legal standards.
Constitutional Provisions: The Court recognized that the right to choose one's gender identity is
integral to the right to dignity and autonomy under Article 21 of the Constitution. Furthermore,
the discrimination faced by transgender people was acknowledged as contrary to the equality
promised under Articles 14 and 15, as well as the freedom to express oneself under Article 19.
Precedents and Comparative Law: The bench referred to various international cases and
conventions, such as the Yogyakarta Principles, which outline the rights of sexual and gender
minorities. Comparisons were made with legal advances in other jurisdictions which have
recognized the rights of transgender individuals.

Interpretative Approach: The Court adopted a dynamic and progressive interpretative approach,
recognizing the need for law to evolve with societal changes and the interpretation of
constitutional rights to be expansive enough to accommodate emerging rights and issues.
Ratio Decidendi of the Case
The Court's ruling had several critical components:
1. Recognition of Third Gender: Transgender persons have the right to decide their self-
identified gender, and the authorities must recognize them as 'third gender' for all legal
and official purposes.
2. Fundamental Rights: Non-recognition of transgender as a third gender violates Articles
14, 15, 19, and 21 of the Constitution.
3. Directives to Government: The Court issued several directives to the government,
including framing policies and laws to eradicate discrimination, creating welfare
schemes, ensuring healthcare, providing for reservations in education and employment,
and facilitating changes in identification documents.
Impact and Implications
The judgment has had a profound impact:
1. Policy Changes: Post the verdict, several policies were introduced, including the
Transgender Persons (Protection of Rights) Bill, aimed at establishing a comprehensive
legal framework for addressing the issues faced by transgender individuals.
2. Social Awareness: The judgment significantly elevated public discourse around
transgender issues in India, promoting greater social acceptance and understanding.

3. Legal and Administrative Framework: This case has prompted changes in various
government documents allowing for the inclusion of a third gender option, thereby
mainstreaming the issues faced by transgender people in bureaucratic processes.
Critique and Reflection
While the judgment was celebrated as a historic milestone, it also faced critiques:
1. Implementation Gaps: The lack of clarity on the enforcement mechanisms and delays in
the implementation of court directives has been a significant concern.
2. Comprehensive Anti-Discrimination Laws: Critics argue that broad anti-discrimination
laws extending beyond gender to address all forms of discrimination against transgender
people are still needed.
3. Socio-Economic Reality: The legal recognition has not completely translated into societal
acceptance. Transgender people continue to face significant challenges in terms of stigma
and exclusion from mainstream social, economic, and cultural life.
In conclusion, National Legal Services Authority v. Union of India remains a seminal case in the
annals of Indian constitutional law, primarily altering the landscape of rights for transgender
individuals

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NATIONAL LEGAL SERVICES AUTHORITY V.

UNION OF INDIA, (2014)

BRIEF BY DHAWAL SHARMA

documents compounded their difficulties in accessing education, healthcare, employment, and

health, employment, and protection from discrimination and violence.

1. Recognition of Gender Identity: Whether individuals have a right to be recognized according

2. Fundamental Rights: Whether the non-recognition of transgender individuals' identities in

India, interpretations of various precedents, and international legal standards.

recognized the rights of transgender individuals.

constitutional rights to be expansive enough to accommodate emerging rights and issues.

Ratio Decidendi of the Case

The Court's ruling had several critical components:

and official purposes.

2. Fundamental Rights: Non-recognition of transgender as a third gender violates Articles

14, 15, 19, and 21 of the Constitution.

3. Directives to Government: The Court issued several directives to the government,

including framing policies and laws to eradicate discrimination, creating welfare

schemes, ensuring healthcare, providing for reservations in education and employment,

and facilitating changes in identification documents.

Impact and Implications

The judgment has had a profound impact:

Transgender Persons (Protection of Rights) Bill, aimed at establishing a comprehensive

legal framework for addressing the issues faced by transgender individuals.

2. Social Awareness: The judgment significantly elevated public discourse around

transgender issues in India, promoting greater social acceptance and understanding.

mainstreaming the issues faced by transgender people in bureaucratic processes.

Critique and Reflection

the implementation of court directives has been a significant concern.

2. Comprehensive Anti-Discrimination Laws: Critics argue that broad anti-discrimination

people are still needed.

acceptance. Transgender people continue to face significant challenges in terms of stigma

and exclusion from mainstream social, economic, and cultural life.

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