Constitution of India
Arts. 15, 16 and 19 - Citizen - Meaning, scope and extent - Held, term citizen is gender neutral and also covers
hijras/TGs who are neither male nor female,
National Legal Services Authority v. Union of India, (2014) 5 SCC 438
Constitution of India
Arts. 14 to 16, 19 and 21 - Gender identity - Right of Transgender Community (TG) to seek gender identity alternate to
the one assigned, male or female, at the time of birth - More so, when such person has undergone surgical procedure to
change sex (transsexuals) - Regard to sexual orientation which is distinct from gender identity - Psychological and not
biological test to be applied to transsexuals - Discrimination and denial of equality in matters of access to education,
healthcare, employment, licences, etc. and to rights and privileges as persons and as citizens of India - Denial of right to
live with dignity - Historical background of the community (paras 14 to 20) and situation in other countries examined
(paras 38 to 45) - Stance of UN and other human right bodies examined (paras 23 to 27) - Yogyakarta Principles
endorsed - Per curiam, held, non-recognition of gender identity and equality of TGs violates Arts. 14, 15, 16, 19 and 21 -
These articles are not restricted to males or females and also cover hijras/TGs - In the absence of any Indian law on
TGs, in view of Arts. 253 and 51 of the Constitution, municipal courts in India must respect international law in respect of
TGs - Right to gender identity also flows from India being a democracy - Impact on rights of transsexuals after
undergoing sex reassignment surgery (SRS) historically considered with regard to issue of marriage of TGs - Regard to
the psyche and psychological factor/aspect - Right of transsexuals to personal development and to physical and moral
security in the full sense, (2014) 5 SCC 438-A
Constitution of India
Arts. 14 to 16, 19 and 21 and Pt. IV - Gender identity - Right of Transgenders (TGs) (hijras/eunuchs) who are neither
male nor females to be identified and categorised as third gender with legal and constitutional protection, upheld (per
curiam) - Flows from natural law also (per Sikri, J., para 122) - Right to live a life with dignity - Claim to be treated as
SEBCs/OBCs, upheld (per curiam) - Directions issued to Central and State Governments in this regard, to extend all
benefits available to SEBCs/OBC to TGs, (2014) 5 SCC 438-B
Constitution of India
Arts. 21 and 14 - Gender identity - Fundamental importance to intrinsic sense of self - Distinguished from sexual
orientation (per Radhakrishnan, J.) - Gender identity, right to choose, held, is a human right from which many other rights
flow (per Sikri, J.), (2014) 5 SCC 438-C
Constitution of India
Art. 14 and Art. 21 - Person - Meaning, scope and extent - Held, term person is gender neutral and also covers
hijras/TGs who are neither male nor female - Hence, they are 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 enjoyed by any other
citizen of India - Directions issued to Central and State Governments, in this regard, (2014) 5 SCC 438-D
Constitution of India
Arts. 15 and 16 - Prohibition of discrimination based on sex - Held, expression sex not limited to biological sex of male
or female and covers hijras/TGs who consider themselves neither male nor female - Thus Arts. 15 and 16 prohibit
discrimination based on gender identity - TGs have been denied rights under Arts. 15(2) and 15(4) as also Art. 16(2) and
Art. 16(4) - They are legally entitled and eligible to get benefits available to socially and educationally backward classes
(SEBCs) for admission in educational institutions and in public employment - Directions issued to Central and State
Governments in this regard,
Constitution of India
Art. 19(1)(a) - Scope and extent - Held, extends to citizen's right to expression of his self-identified gender as in the
case of TGs - That can be expressed through varied ways and means by way of expression, speech, mannerisms,
clothing, etc. and through dress, words, action or behaviour or any other form - Directions issued to Central and State
Governments in this regard,
Arts. 19(1)(a) & (2) - Expression - Held, covers right to choose one's personal appearance or dress subject to Art. 19(2) -
Hence, TGs have right to express their self-identified gender through their speech, dress, appearance and mannerisms,
(2014) 5 SCC 438-G
Constitution of India
Art. 21 - Scope and extent - Fundamental right to live a life with dignity - Held, right to dignity has been recognised to be
an essential part of the right to life and accrues to all persons on account of being humans - It covers personal autonomy
and self-determination - It extends to recognition of one's gender identity as sought to be expressed by TGs - Self-
determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of
personal liberty guaranteed under Art. 21 - The self-identified gender can be either male or female or a third gender -
Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under Constitution of
India - Directions issued to Central and State Governments in this regard,
Constitution of India
Arts. 15, 16 and 19 - Citizen - Meaning, scope and extent - Held, term citizen is gender neutral and also covers
hijras/TGs who are neither male nor female, (2014) 5 SCC 438-I
Constitution of India
Art. 14 - Classification - Under classification - Classification restricted to limited choices thereby excluding certain
categories, held, amounts to discrimination - Binary notion of gender in IPC and other laws recognising only male or
female gender, held, discriminates against TGs,
Constitution of India
Arts. 253 and 51 - International law held applicable where Indian law absent to deal with the situation - Absence of
Indian law on TGs - Held, municipal courts to follow international law on the subject,
Words and Phrases
Transgender - Meaning and scope - Persons of different identities and experiences covered by the expression and
included in transgender community, explained (Radhakrishnan, J., para 13) (Sikri, J., paras 113 to 115),
Constitution of India
Arts. 32, 226, 14 to 19 and 21 - Judicial activism - Absence of any law to safeguard rights covered by Arts. 14 to 19 and
21 - Held (per Radhakrishnan, J.), constitutional court cannot remain a mute spectator when such rights are violated,
especially when such rights have gained universal recognition and acceptance, as in the case of TGs - Held (per Sikri,
J.), judicial role in a democracy is not only to decide the dispute before the Court, but to uphold the rule of law and
ensure access to justice to the marginalised sections of society like TGs - By recognising TGs as a third gender Supreme
Court is only bridging the gap between the law and life and that is the primary role of the Court in a democracy - Amounts
to giving purposive interpretation to Arts. 14 to 19 and 21,
Human and Civil Rights
Nature of - Held, human rights are rights that belong to every person - Not dependent on specifics of the individual -
They are moral, pre-legal rights and cannot be granted by people or taken away by them - Human rights have been
recognised by the Universal Declaration of Human Rights and adopted as fundamental rights in the Constitution of India -
TGs being humans have every right to enjoy their human rights, (2014) 5 SCC 438-N
Constitution of India
Art. 14 - Equality - Test - What is not reasonable, just and fair is not treated to be equal and is, therefore, violative of Art.
14 (per Sikri, J.), (2014) 5 SCC 438-O
Constitution of India
Art. 21 - Nature and scope - Art. 21 guarantees enjoyment of life by all citizens of this country with dignity, viewing this
human right in terms of human development (per Sikri, J.), (2014) 5 SCC 438-P
Constitution of India
Preamble - Democratic Republic - Democracy is based on the recognition of the individuality and dignity of man - Hence
citizens have a right to gender identity (per Sikri, J.), (2014) 5 SCC 438-Q
Constitution of India
Preamble and Pts. III & IV - Social justice - Social justice does not mean equality before law on paper but to translate
the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State
Policy into action - Includes granting recognition to TGs (per Sikri, J.),
Jurisprudence
Justice - Conceptions of - Aristotle, Kant, Locke, Goodman and Rawls' views considered - Conception of justice as
fairness combined with distributive justice considered in granting due recognition to TGs (per Sikri, J.), (
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