Calcutta High Court directs govt to implement horizontal reservation for transgender persons

In a significant judgment, Justice Rajasekhar Mantha of the Calcutta High Court has directed West Bengal to ensure 1 percent reservation for transgender persons in all public employment.

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BEGGING in the streets of Kolkata is a two-time qualified Teachers' Eligibility Test (TET) candidate, Mrinal Barik.

Barik is a transgender woman who was discriminated against and humiliated during the interview, in which she was asked to appear, because of her gender identity. As a consequence, she was compelled to beg at traffic signals.

In 2014, the Supreme Court of India, in National Legal Services Authority versus Union of India & Ors (NALSA), granted transgender persons a legal status of "third gender" to safeguard their fundamental rights under Part III of the Constitution.

In a series of exhaustive directions passed by Justices K.S. Radhakrishnan and A.K. Sikri, it was also directed that "[T]he Centre and the state governments take steps to treat the third gender as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments."

Consequently,  the Transgender Persons (Protection of Rights), Act, 2019 and Rules 2020 solidified the directions of the Supreme Court. However, it omitted enacting any laws on guaranteeing reservation to one of the most marginalised communities in India.

The Transgender Protection Act, under Section 3, provides a general provision prohibiting discrimination including on the grounds of employment or occupation. Section 9 specifically prohibits discrimination in matters relating to employment including, but not limited to, recruitment, promotions and other related issues.

Brief facts

In this case, the petitioner had raised complaints against the TET agency which failed to conduct her interview properly. She alleged that the interview was not conducted as she was not asked any questions.

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Aggrieved by the conduct, she approached the Calcutta High Court. In a writ petition, Justice Abhijit Ganguly (the judge who resigned from his post on March 5, 2024 and joined the Bharatiya Janata Party two days later) passed an Order on April 19, 2023 directing the chief secretary, government of West Bengal, to decide on the issue and pass a reasoned Order within 45 days.

After that, an Order was passed by the chief secretary, disposed of her petition on July 25, 2023. In the Order, it is stated that earlier the State did not have any policy allowing the benefit of reservation to transgender persons.

However, as a consequence of the notification passed by the Women and Child Development and Social Welfare Department of West Bengal dated November 30, 2022, it adopted a policy of guaranteeing equal opportunities in employment without any discrimination to transgender persons.

The petitioner alleges that West Bengal is yet to implement this policy and therefore, is in violation of Articles 16 (equality of opportunity in matters of public employment) and 21 (protection of life and personal liberty) of the Indian Constitution.

What is the current situation of reservation demands of transgender persons?

As per the current status, many states have implemented the policy of reservation for transgender persons in employment. Karnataka was the first State to guarantee one percent horizontal reservation to transgender persons in 2021.

This was pursuant to a public interest litigation filed in Karnataka High Court in Sangama by its Director & Anr. versus State of Karnataka & Ors where it was pleaded that transgender persons should be included in filling up vacancies for the post of Special Reserve Constable Force and Bandsmen.

Also read: Madras HC suggests 1 percent horizontal reservation for transgender persons in TN

In an interim Order passed on August 28, 2020, the state government declared that they would make suitable amendments to the government notification to provide reservations for transgender persons. The Karnataka Civil Services (General Recruitment) (Amendment) Rules, 2021 provides 1 percent horizontal reservation for transgender persons.

In 2017, the High Court of Rajasthan directed the appointment of Ganga Kumari, a transgender woman, for the post of a woman police constable as per the NALSA guidelines.

Kumari had successfully qualified for the exam but she was denied an appointment letter because her medical report termed her a 'hermaphrodite'.

In 2018, the Uttarakhand High Court directed the state to extend reservations in educational institutions and for public appointments to transgender persons. It stated that the government must frame a scheme extending welfare measures and other benefits to transgender persons within six months.

Other states such as Kerala and Bihar have extended reservations for transgender persons in nursing courses and in government services, especially in police.

When it comes to reservations, there have been debates about whether horizontal or vertical reservations or both should be extended to transgender persons. Extending vertical reservations would imply that transgender persons have to be recognised as 'backward classes'.

Recently, the Madras High Court quashed a government Order extending reservation to transgender persons in educational institutions and appointments or posts in the services in the state as the most backward class community issued by the Backward Classes, Most Backward Classes & Minorities Welfare Department.

In this case, a transgender woman qualified for B.Sc nursing and got registered with the Tamil Nadu Nurses and Midwives Council. She was accorded vertical reservation based on the NALSA judgment which states that transgender community should be treated as social and educationally backward class of citizens.

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The court said that vertical reservations cannot be extended to the transgender community as it goes against the NALSA judgment. It clarified that in NALSA, the court recognised transgender persons as a distinct gender identity. Thus, transgender identity cannot be treated as a caste. Only horizontal reservations based on their gender identity could be provided.

The court said: "Like every other person in India, the degree of discrimination faced by an individual is an intersection of their gender identity and caste identity. The discrimination faced by a Dalit woman is the result of intersecting identities of being a woman from the Dalit caste. This will be lesser than the discrimination faced by an upper caste woman."

It added: "Similarly, the discrimination faced by a transgender Dalit person is worse than the discrimination faced by an upper caste transgender person. Therefore, any reservation provided to the transgender will not be effective unless this intersection of these identities is addressed."

What did the High Court of West Bengal decide?

Justice Rajasekhar Manta found that the West Bengal government had failed to adopt a policy to ensure reservation for transgender persons.

It has directed the chief secretary to ensure 1 percent reservation for transgender persons in all public employment as per the NALSA directions.

The court has further directed the secretary of the West Bengal Board of Primary Education to arrange for an interview and counselling of the petitioner as a special case. Consequently, the court has ordered her recruitment as an assistant teacher in primary education as against present future vacancies.

Speaking to The Leaflet, the petitioner said: "I cannot believe I can now get a job and a decent life."