Sonal Singh Godara

BBA LLB
20131387
SECTION F

JUDGMENT ANAYLSIS OF NATIONAL LEGAL

SERVICE AUTHORITY vs UNION OF INDIA
I have chosen this judgment to depict the most progressive stance taken by the Supreme Court in
Indian History. This judgment is delivered by the two judged bench, Justices Radhakrishnan and
Justice Sikhri. These two judges have tried to bring reform and has brought such a progressive
stance, which the other courts have cringed to do. This judgment have broken the myopic stance
on the self-determination, redefined the constitutional morality and thus retained the faith in
judiciary which is mostly considered to be influenced by the politicians. First time the rights of the
transgender were taken into consideration. The two judged bench comprising of Justices
Radhakrishnan and Sikhri, understood the agony and trauma that members of transgender
community faces and the collective ignorance faced by the transgender in society, as well as
recognizing the inevitable, irrevocable and unconditioned right of an individual who’s conferred
rights by the constitution to define something as basic as your gender and sexual identity, as the
most essential and basic function of human life.

It is very disappointing that courts and the society has been ignorant to the condition of transgender
in India and it took so long by the courts to recognize the fundamental rights of transgender
community. In the particular case, the judges although have given the judgment without any
preconceived bias, however the judges at many instances while giving the judgment has jumped
to the conclusions without explaining the basis of it.

For instance, the study of terms like gender, sexual identity, sex and the societal and
epistemological premises on which such classification is based and how the concepts of gender
and sex are mutually different categories (such stance led to the court not discussing the
constitutionality of S. 377, and thus concluding that gender identity and sexual orientation are
mutually exclusive), were some unwarranted conclusions that the court implied in its judgement,
but never bothered to discuss it. In a judgement that seemed very enigmatic and cryptic in
understanding the complex nature of transgender community, the premise and the basis on which
Sonal Singh Godara
BBA LLB
20131387
SECTION F

the ‘third gender’ was formulated, in a way knocked down the very purpose of demolition of a
gender binary: does adding another category of gender, diminishes the gender binary or reinforces
it? Does creating no qualification even within the third gender, which comprised of different
transgender identities, and the same to be clubbed with Hijras and Eunuchs, make the third gender
invariably ambiguous and vague?

In this judgment, there is use of various rhetoric devices and there has been use of various figure
of speech which deceits the reader and then end up with such a conclusion which violates the basic
right of an individual. A transgender can express his gender identity but cannot practice his sexual
orientation. The criminalization of the same sex practice prohibits the person from practicing his
sexual activities. There is use of irony, although the courts believe in recognizing the right to
express the gender identity, but on the other hand prohibits a person from one of most essential
right to practice the sexual activity. In the judgment, there is use of meiosis, the judgement has
totally ignored to discuss the relevance of section 377 and the Naz Foundation judgment, thus to
some extent has diminished the importance of the judgment. Courts should have taken into
consideration the criminalization of section 377, because the ignorance of section 377 has
demolished the importance of National legal service authority vs Union of India.

Further there is use of aphorism in the judgment, the judges tend to presume that the recognition
of legal rights of transgender is sufficient to vanish the atrocities faced by the community. The
formation of third gender is used as a metaphor for all the people who doesn’t associate with their
sex identity. There has been no classification in the third genders. Whether only Hijras/eunuchs
are to be treated/declared as third gender or all transgender persons have to treated/declared as
third gender. This confusion arises due to use of different terms of the judgment by the court. Use
of word “third gender” implies the aphorismus, the confusion in the classification calls into
question the definition of the word “third gender”.

Further there is a sense of juxtaposition, the Supreme Court verdict has been a big progressive step
toward the transgender right, but in reality there exist a big dichotomy between the recognition of
legal rights by the court and actually giving them the right. The fact that section 377 is still in
operation is discriminating against the transgender community. The decision in Suresh Kumar
Sonal Singh Godara
BBA LLB
20131387
SECTION F

Kaushal v. Naz Foundation not being discussed or taken into consideration depicts how ignorant
the court can be at times. In the particular judgment courts have failed to provide proper
classification within the term third gender and then being ignorant of the fact that without
decriminalizing the section 377, the transgender community cannot enjoy their rights fully and
would be restricted in performing the sexual activity with the same sex. Right to perform sexual
activity is one of important human right which shouldn’t be restricted and in the present judgment
all the claims of transgender are not taken literally, thus this brings the use of hyperbole.

Judith butler explains the term sex and gender identity. He explains in gender trouble that the
moment the immutable character of sex is questioned, the construct called ‘sex’ is as culturally
constructed as gender, which implies that gender and sex have no difference at all. The claims of
sex are similar and identical to imply claims of gender norms. The Supreme Court judgement,
hence, by following the argument in favor of this line of thought, has tried to inculcate
transsexuality, even when it was not required. The witnesses and other sources taken by the court
to determine the difference between sex and gender is very absurd. For instance, court has
determined on the basis of ‘cooking’ for the family and interest towards household chores. Judges
have diminished the line between gender and sex, therefore both have acquired interchangeable
meanings, so as to refer that ‘cooking’ and doing household chores, or even choosing to cross
dress, are basically female essentialities, which requires a ‘transition’, thus the change of a legal
status from a man to a woman, as a third ‘gender’.

A man, if needs to cook, and dedicate his life to household works, does not need to change his sex
through Sex Re-arrangement surgery, but on the other hand he/ she needs to recognize the change
in sexual orientation which again is something that people can accomplish without the requirement
for any biological change. However the judges by formulating the third gender has made obscured
and vague the subjective and individual nature of sex. Further this has led people to changer their
“sex" or be called either a "male" or "female" inside the extremely significance of third gender,
which is essentially transition or change from Male to Female and Female to Male. Not just this,
the judgment has considered even intersex and the people who don’t perform any sexual change
for example people who don't have hormonal change or Sex Re-arrangement surgery and
individuals who have transitioned as a particular unfit classification. This implies the use of device,
Sonal Singh Godara
BBA LLB
20131387
SECTION F

enthymeme, as there is omission of the premises, still can be concluded well by the reader that in
concluding the third gender the court has opted out various notions of gender identity and actual
performance of sex between the same sexes.

The arrangement made for the third sex involves a hidden patriarchal construct, which includes
any individual either physically, rationally or mentally who does not adjust to such thoughts about
sex expression or performance, or even the individuals who reject sex, rendering the differing
qualities of the sexual range to be harsh and rules out individual liberation. This is an example of
rhetoric device innuendo, even the hidden construct can be detected without any direct reference.
The individual's entitlement to choose sex is respectable, however to be known as a 'third sex'
poses questions on what gender identity is, its intrinsic function with sex and sexuality. There is
use of prior assumption by the court in order to determine the term third gender and this also
implies the sense of antithesis.

Last yet not minimal, one of the significant issues of the judgment is its unclearness and vagueness,
and the regulatory issues that it involves, particularly with regards to legal authorization. The rules
for the judgment are broad, and announce different courses for the transgender to look for
governmental policy regarding minorities in society. Be that as it may, it has enigmatically
characterized a specialist board, enrolled parts and requested the advisory group to send a report
most recent by 6 months. The board of trustees has as an after effect of this, requested that the
Court should elucidate its position on what it implies by the 'third gender'. Moreover, the board of
trustees is confounded with reference to what the bearings implied when it said things like tending
to the requirements of the transgender individuals to coordinate them back in the public arena.

This permits absence of responsibility and authorization for not conforming to these bearings,
which the Official is by all accounts exploiting. Further the sexual orientation affirmations and
different types of legitimate acknowledgment have not been executed and this implies the
judgment can't take structure and substance. A judgment whose principle target was for the general
public to endure contrasts and difference, really re-made modest classifications, even the absence
of capabilities made inside these classifications, really fortifies the gender binary, and therefore
re-strengthened the "us" and "them" logic in heteronormative circles of family and life .
Sonal Singh Godara
BBA LLB
20131387
SECTION F

The judgment made as opposed to managing a plausibility of a range of human conduct and
personality, re-declared the cliché and the ideas of being male, female and club the other people
who dismiss a societal meaning of the same into the making of this alleged 'third gender'. This
would imply that the law will then, not separate between sex, trans men, trans ladies, sexual
orientation eccentric, hijras, and different variations of non-adjusting sex conduct. While the
mentality of the judgment inclined towards a post-sexual orientation approach, it really left with
its central position by attempting to bother the transient objectives of the members. Therefore the
case of National legal service authority vs Union of India is an example on how the court influences
itself and readers by gratifying judgements using various rhetoric devices and figures of speeches
to amplify or exemplify, understate or exaggerate, various facts and cases to interpret in accordance
to their caprice.