National Legal Services Authority v. Union of India and others - Final Opinion (Part VIII)

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In the previous posts [(Part I, Part II, Part III, Part IV and Part V), Part VI (Opinion), Part VII (Opinion)], I discussed my opinion on the fundamental rights of the transgenders. We know that the court passed many directions and observations in the case of National Legal Services Authority v. Union of India and others. Many critics of this verdict say that this judgment suffers from the vice of excessive Judicial Adventurism and by extending reservation to the transgenders, the court clearly overstepped into the domain of the executive. And by creating a ‘Third Gender’, the court clearly indulged into Judicial Legislation.

Before going further, I would like clarify what I mean by Judicial Activism. Judicial Activism has been used in both, pejorative and positive sense by the jurists. Here, I am referring to ‘Judicial Activism’ as Judiciary engaging in Rule-Making, filling the lacunas in law and making law. I agree that of late, Judicial Activism by the Supreme Court has clearly increased. Our Constitutional Scheme is such that it gives ample powers to the Supreme Court and except self-restraint, there is nothing stopping the Supreme Court to engage into Judicial Activism. I also agree that Judicial Activism should be exercised with great care and caution. It is a tool to be used sparingly and in the rarest of the rarest circumstances. Its exercise should be such that the court must be left with no other option than to resort to Judicial Activism.

There is no denying the fact that the present case is clearly one of Judicial Activism by the Supreme Court. But, I feel that this is one of those cases that should not be treated at par with other cases of Judicial Activism. The gap in the law existed for decades. Subsequent government came and went away. No one did nothing for the transgenders. No one even cared to recognize them. They were treated as illegitimate. Governments remained aloof and oblivious to their existence. It is not as if governments were not petitioned by the organizations representing the transgenders. Letters were written, dharnas were done from time to time. But, the government chose to remain a mute spectator. It is in this light that we must see the action taken by the Supreme Court.

The matter would have again gone into a Cold Baggage had the court not declared that let there be a ‘third gender’ and since transgenders are economically and educationally extremely backward, let them avail the benefit of reservation. The apathy of subsequent governments led to this action of the Court. If the governments were vigil enough, they would heard the plight of the transgenders and requisite action in this regard would have been initiated.

As I said, I completely endorse this verdict. But, let us not expect from the Supreme Court to cross all lines of separation of power and engage into Judicial Legislation for other matters that are of substantial importance. I feel the cause involved in this case was exceptional and hence, exceptional steps were taken by the Supreme Court. With this, my analysis of National Legal Services Authority v. Union of India and others is officially over.