Meemansha Choudhary
Introduction
Numerous steps have been taken to integrate the transgender community into the mainstream society, since the landmark case of NALSA v. UOI. But, there still remains room for bringing coherence in these efforts. While there are certain policies that are in consonance with the NALSA judgement; for instance, in states like Karnataka, Madhya Pradesh, Orissa etc., affirmative steps are taken by recognising the need for reforms, but they have not been acknowledged at the national level. As a reaction to this fragmented approach, in the recent case of Subi K.V v. UOI, the Supreme Court passed an order seeking a response from the Centre, the states and the Union Territories with regard to the reservation status of the transgender community.
Current Scenario: Is the Judiciary the Sole Path to Relief?
Article 15(4) and Article 46 of the Indian Constitution categorically states that the State has to undertake such actions, which are in favour of protecting the interests of the weaker sections of the society, as well as protection from all kinds of exploitations. The Constitution’s primary aim is to foster inclusivity among all societal groups, permitting legislature to formulate specific treatment, for this purpose.
However, the same hasn’t been reflected in the legislative actions for the Transgender community. The report of the Parliamentary Standing Committee, while examining the Transgender Persons (Protection Rights) Bill, 2016 (currently “the Transgender Persons (Protection Rights) Act, 2019”), recommended the reservation to the transgender community under the socially and educationally backward class because there is no provision in the Act governing the reservation aspect and it led to the nation-wide criticism of the Act. Even though the need for the reservation was realised by the Apex Court, the same did not find a place in the legislation.
In the much-celebrated judgment of Sangama v. State of Karnataka, the reservation for transgenders was recognised, yet the applicability of that reservation was confined to direct recruitment in government services related to Groups A, B, C and D which was addressed by amending the Karnataka Civil services (General Recruitment) (Amendment) Rules, 2021 and the Court did not delve into diversifyingthis benefit to any other institution. Furthermore, this amendment of rules has brought no change in other factors such as exam fees, the number of available attempts, all of which raises questions on the efficiency of the step in empowering the community.
The present legal position of India on transgender reservation resembles a void in the legislation. While the identity has been recognised, there exists no statutory mandate for reservation. However, there has been a slew of cases concerning declaring the right to get reservation under Article 15(3) and Article 16(1). In the case of President ND Mohan v. District Collector and ors, the Madras High Court identified that there is a need to blend the transgenders into the mainstream for changing the societal mindset and such kind of change can be realised when the reservation for transgenders is extended to the law-making institutions. In the Shanavi Ponnusamy v. Ministry of Civil Aviation, the court observed that the 2019 Act has to be read in letter and in spirit, as outlined by the NALSA judgement. The court highlighted the need for a policy that is effective enough to realise all the rights that can be carved out from NALSA judgement. Similarly in the S. Tamilselvi v. Sect to Government, the court directed that the transgender student has to be availed with special reservation in the cut-off for admission in an educational institution.
The prevailing trend in judicial interpretation tilts favourably towards acknowledging the entitlement of transgender community to reservation benefits. However, the legislative stance has not consistently aligned with this approach. The advocacy for transgender reservation is not a mere interpretative consideration, as it unequivocally aligns with the principle of non-discrimination in opportunities. This absence of uniform application of such reservation with no supervisory body, especially when horizontal reservations exist for numerous similarly backward strata, lacks a justifiable rationale, this argument is explored in the next section by the author.
The Principal Basis for Inefficacy and the Legitimacy of Legislature’s Justifications
Despite Judicial efforts, the transgender community’sprogressremains limiteddue to the absence of legislative action. For instance, in Vishakha case, although the guidelines were significant step, practical compliance came only after POSH Act was enacted. Judicial acknowledgment of the rights is possible, but the assurance that the recognised rights will get approval at societal level, depends on the actions of the legislature, coupled with a comprehensive awareness programme. Similarly, in present situation, void has been addressed on case-to-case basis, but there is lack of eagerness on part of legislature, as inferred from the justifications of non-action given by the state on recurring basis.
The first issue is based on the categorical argument given by the Union government, that the transgender community can avail the existing vertical reservation, along with all other forms of prevailing horizontal reservations such as PWD, Ex-Servicemen, EWS etc., without any obstacle. This is an attempt to justifyabsence of reservations,by mentioning that theyare covered under existing welfare schemes and additional reservation will serve no special purpose.
The reservation granted to Scheduled Castes, Scheduled Tribes, and other backward classes (as per Article 16(4) is defined as vertical reservation. However, the term “horizontal reservation” encompasses groups like women (in accordance with Article 15(3)) and military veterans, etc. to ensure equitable opportunities. The transgender community shares elements of the category of horizontal reservation, because the vertical reservation derives primary value from the communal division of the society. Along with the limitation on the ground of scope, the existing framework of vertical reservation is not specifically targeted towards the benefit of the transgender community.
It is crucial to realise that the community still suffers from problems such as homophobia and transphobia, hindering their inclusion in society, in such circumstances, expecting that the community can secure existing opportunities on par with the other backward groups, without external support is unrealistic. . There is a need for external support as observed in the case of Manoj Kumar Giri v. State of UP stating, reservation is aimed at uplifting a particular class and is essentially an ameliorative measure to enable the members of the said class or group to ultimately shed off the burden of disparity and integrate in society.
Furthermore, societal needs keep changing, and this dynamic society is another ground for the creation of horizontal reservation the community. Horizontal reservation is considered to be dynamic in nature, as it has a mechanism to balance itself every year with the changing society. This assists the system to provide external support without breaching the threshold.
Second justification for not providing special reservations is the threshold set by the judiciary. In Indra Sawhney v. UOI case, it was categorically expressed by the Court that the 50% rule has to be followed, as welfare measures cannot keep sacrificing merit. Hence, it is argued that making provisions for trans-reservation can lead to surpassing this threshold.
In the case of Anil Kumar Gupta v. State of UP, a method of balancing reservations for the Trans community and remaining within the threshold of 50% limit was devised and has been followed in various subsequent judgements. Accordingly, it was agreed that, firstly, the seats have to be filled in the vertical category on the basis of merit, secondly, the State must identify how many people falling under the special category are already there in the selected merit list, and if the number is as per the required percentage, then there is no need for any further accommodation. If the requisite percentage of people falling under special category is not selected then the accommodation will be made within the social reservation.
Moreover, another alternative being observed in the case of Janhit Abhiyan v UOI, where Supreme Court evaluated the applicability of 50% reservation limit concerning EWS quota. The Court observed that, if the Parliament finds it imperative to provide reservation support to any community, then it has ability to exceed this limit, no court decision can obstruct the state from implementing affirmative steps, thus nullifying the justification.
Acknowledging the Overdue Rights
All reservations that have been provided under the horizontal category have a specific background that differs from the other; however, one common ground shared by all of them is that there exist factors other than caste which pushes people backward. These factors have been time and again recognised by the law-making authority of our nation, which indicates the approach favouring upliftment in all cases.
Going by the past approach of the Parliament, it falls in the category of legitimate expectation. It was observed in Union of India v. Col P.K Choudhary that the even though doctrine of legitimate expectation cannot be claimed as a right, if the negation of such expectation leads to denial of equality under article 14 then it can be demanded. Further, it is a universally accepted principle of Article 14 that likes should be treated alike. This approach is supported by Article 46 and the Directive Principles of State Policy is the guide for policy formulation of the state.
The need for affirmative steps has been acknowledged by international law as well. The United Nations has responded in the form of Yogyakarta Principles. Principle 2 states that states shall take appropriate steps to secure adequate advancement of persons of diverse sexual orientations and gender identities. This can be considered as a clarion call to which every state respecting the international law should respond. If international law is to be used as a tool for interpreting human rights in India, then reading these principles with the NALSA judgement gives a clear indication for establishing a system of proportionate rights that can eliminate social differences.
Way Forward
As has been identified in the course of the article, there exist various solutions for the purpose of recognising the rightful claims of the transgender community. Denying these rights would contradict historical approach of the Indian legislature and violate Article 14 of the Indian Constitution. It is crucial to bridge the gap persisting between individuals irrespective of their gender and sex orientation, to establish a just society. In a constitutional democracy, prioritizing welfare of every community is crucial, irrespective of the number of beneficiaries. This distinguishes democracy from majoritarianism and failure to recognise this distinction can undermine the people’s will.
The author is a third-year student at National Law University, Jodhpur
Image Credits: Social Story
Constitutional Law Society 
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