Horizontal Reservation for Transgender: A Mirage of Equality
Authored by Sparsh Srivastava, a 3rd-year student pursuing B.B.A.LL.B at National Law University, Odisha
LGBTQ+ rights have not been off the headlines for the last past few years. The debate is quite diverse and with various demands. One such limelight demand is a reservation for transgenders. The demand for horizontal reservation of trans people is not a recent phenomenon. A lot of ongoing debates concerning reservation for transgenders can be traced back to a landmark judgement made nine years ago, in 2014, i.e., National Legal Services Authority (NALSA) vs. Union of India (“NALSA judgement”). The NALSA judgment ensured trans persons a bundle of Constitutional and Fundamental rights under Article 14, 16 and 21, besides declaring them eligible for reservations. However, it didn’t clarify the nature of reservations, thus leading to the question of whether it should be horizontal or vertical reservations.
Recently, an application was filed seeking clarification that the kind of reservation meant for transgender persons, as per the NALSA judgement, is a horizontal reservation. A 3-judge bench led by CJI strenuously dismissed the petition; however, gave liberty to the applicant to avail other remedies in law for the reliefs sought, apparently by filing a separate substantive petition. The correctness of the decision is, however, out of the scope of discussion here.
The author attempts to justify the need for mandating the provisions for a community that has been historically marginalized in society and recognizing the different aspects making up their social identity. The paper also highlights the negligence and pitfalls that have jeopardized the rights of those communities.
In 2014, the NALSA judgment categorically upheld the right of all persons to self-identify their gender. In furtherance, the transgender community could legally identify as “third gender”. Pertinently, the court, inter alia, directed the Centre and the State Governments “to extend all kinds of reservation in cases of admission in educational institutions and for public appointments” owing to the fact that they are a “socially and educationally backward class.” The NALSA judgment safeguards the rights enshrined under Part III of the Constitution, provided to the community. It also directs the government to form social welfare schemes for them and create public awareness.
The Court provided reservation but did not specify how it should be imp indicating towards the duty of the Legislature to form the law for the implementation of the judgement leading, in some states, no implementation at all. Implementation of other directions or schemes for them is out of the question.
Significance of the Decision
A study conducted by the National Human Rights Commission revealed that in 2017, only 6 percent of transgender people were formally employed. Informal work that a significant portion of the community currently engages in, like begging and sex work, has been criminalized in India under various Acts and laws. But trans persons are often employed in such work for reasons related to both ritual and survival. This shows how important it is to implement the orders pronounced in the NALSA judgment.
Why the demand for horizontal reservation?
In India, Vertical reservation is particularly for the reservation for the underprivileged people belonging to Scheduled Castes, Scheduled Tribes, and Other Backward Classes. Whereas, Horizontal reservation is nothing but a part and parcel of vertical reservation that is meant to ensure equal opportunities for the disadvantaged among the underprivileged - such as women, veterans, and people with disabilities.
For clarification, for instance, the rolled-out policies that guarantee horizontal reservation for women mean that a woman who belongs to the SC category should be able to avail reservation based on both caste and gender. The horizontal model ensures this. This is what transgender persons are fighting for, as well.
A plain reading of the NALSA judgement identifying the community as “a socially and educationally backward class”, prima facie, gives the impression of vertical reservation, preferably considering transgender persons as OBCs. The author presumes that transgender would fall under the OBC category to critically appreciate the pros and cons of vertical and horizontal reservations. The purpose of upliftment of the community is arguably better served through horizontal reservations. Vertical reservations would create another option for Transgender persons in the already present reservation criterion. It, in spite of serving the greater good, would have more repercussions.
If a trans person of Scheduled Caste/Tribe category will have to choose whether to claim a reservation for SC/ST or transgender. Additionally, this will come at a loss for Dalit, Bahujan and Adivasi transgender persons, as they will have to make a choice between availing reservation either based on caste and tribal identity or gender identity. The opportunity cost of choosing a reservation for transgender is huge. Thus, it would effectively create no benefit for such a person as if a trans person opts to claim for SC/ST, they will lose the opportunity to claim for transgender quota and will have to compete with others in the SC/ST category. In another scenario, if a trans person is already from the OBC category, they will not have any actual incentive.
The marginalized section of society, i.e., persons belonging to the SC/ST/OBC category, still faces a lot of discrimination. A trans person belonging to it is even more vulnerable. If vertical reservation is provided, it will not create any difference to the status quo; thus, aspirations from the judgment would be diluted if not dissolved.
In Indira Sawhney v Union of India, (“Indira Sawhney”), Supreme Court provided a 50% cap on reservations. If vertical reservations are given, it would also impact onlooking the current structure, whereas horizontal reservations would actually not be affected by such a change. The aftermath of the NALSA judgement would also possibly affect the decision in Indira Sawhney if applied otherwise.
Thus, Horizontal reservation provides a win-win solution for all.
Steps taken after the judgement
One of the early steps was taken in 2015, the Tamil Nadu government decided to categorize “transgender or eunuch (thirunangai or aravani)”, that is, only transwomen under the Most Backward Classes (MBC) category.
A notable step forward was taken in 2021, the Karnataka State Government became the first state to provide 1% reservation for transgender persons in civil service jobs across caste categories. In furtherance of the same, the High Court had also issued orders for the government to consider issuing an advisory to all state public corporations and statutory bodies to make similar reservations.
This decision came as a result of an intervention filed by Jeeva, an organisation dedicated to the rights of transgender persons and sexual minorities, in the case of Sangama v. State of Karnataka(“Sangama”). The case began with a challenge to notification for recruitment to the State Police, which called for men and women to fill positions and did not include a ‘transgender’ category. After Sangama, Karnataka became the first and only state to offer one per cent horizontal reservation to transgender persons in 2021. It is worth noting that this amendment provides for horizontal reservations rather than vertical reservations. This means that reservations will be guaranteed across caste categories.
The Central and other State governments should take inspiration from the same. However, it is pertinent to mention that the Ministry of Social Justice moved a cabinet note in September 2021 to include transgender persons in the OBC category, which the author strongly opposes and advocates horizontal reservation for transgenders. Also, transgender persons were included in the OBC category in Madhya Pradesh.
Transgender people are still fighting for their basic rights, highlighting the lack of progress made in the last decade. Since the NALSA judgment, there has been no direction from the Central government on delivering on the right to reservation for trans persons. The aspect of the implementation [of the NALSA judgment has really not gone anywhere. Currently, the primary challenges are legislative. This lack of action needs to be legally challenged.
With the judgment, it is expected that the cycle of discrimination and ostracism finally be broken for the transgender community, but unfortunately, the rights guaranteed to them still remain on paper. The matter should be taken up expeditiously, as the fundamental rights of trans persons can’t be compromised further. Until then, the success of the NALSA judgment remains unclear.
The matter needs to be taken expeditiously to create a de facto change in the status quo. Judicial decisions, immaterial of how liberal and progressive they might be, would create no difference without bringing effect to it.