Commentariat | Legally India

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The amendment flies in the face of the Supreme Court's decision in NALSA v. Union of India. That decision held that self-determination of gender is rooted in Article 21. Legislatures are free to effectively overrule precedent by taking away the basis of the decisions in question. That cannot be done when it comes to NALSA since the basis of its holding was Article 21. Hence, irrespective of whatever policy arguments may exist in favour of doing away with self-determination, it simply cannot be done. This simple point seems to have been lost on the Central Government. This does not answer your question which is decidedly about the socio-economic aspects of the 2019 Act, but I think it is always good to keep both policy and law in mind while thinking about such issues.

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