Madras High Court Quashes Govt Order Giving Reservation To Transgender Persons As Most Backward Class Community, Says NALSA Judgment Not Implemented Properly

Justice GK Ilanthraiyan noted that the State had failed to implement the judgment of the Supreme Court in the Nalsa case properly. The court noted that by bringing transgender persons into the Most Backward Class community, the state was treating gender as a caste which was against the judgment of the Supreme Court. The court added that only horizontal reservation could be granted to the community for complying with the order of the Apex Court.

“In view of the above discussion, the impugned Government Order is liable to be struck down for being manifestly arbitrary and thereby, violative of Article 14, 15, 16, 19 and 21 of Constitution of India. Accordingly, G.O.Ms.No.28, Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department dated 06.04.2015 issued by the second respondent, is hereby quashed. The second respondent is directed to provide horizontal reservation to the transgender community in compliance of the Judgment of Hon'ble Supreme Court of India in NALSA v Union of India reported in (2014) 5 SCC 438,” the court said.

The court was hearing the plea of a transgender person challenging the GO. It was submitted that by providing vertical reservation, the transgender community was treated as a caste, instead of horizontal reservation by treating them as a gender identity.

It was contended that the GO was in violation of Articles 14,15,16,19, and 21 of the Constitution and had no logical or legal basis. It was submitted that those who identify as transgender would be treated as an MBC man which was discriminatory. The petitioner further argued that she belonged to the Scheduled Caste community, but would be treated as an MBC candidate which was against the constitution.

The State, drawing attention to another GO issued by the Social Welfare and Nutritious Meal Programme Department clarified that third-gender candidates who did not possess any community certificate were treated as MBC while those who belonged to Scheduled Caste or Scheduled Tribe community would be considered as per their respective community. Thus, the state argued that the petitioner's grievance had been met.

The court noted that the Apex Court while treating transgender persons as a third gender, directed the state and central governments were directed to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservations to them in education and public employment. Thus, the court observed that the state ought not to have treated transgender persons as a caste under the MBC category.

The court observed that the degree of discrimination faced by a person was an intersection of their gender identity and caste identity and any reservation provided to transgender persons would not be effective unless this intersection of identities was addressed.

The court further observed that the transgender community, being a socially and educationally backward community discriminated on the basis of gender, should be given similar horizontal reservation as other genders. The court also remarked how the State of Karnataka had amended its Karnataka Public Service Conditions of Service Act to provide 1% reservation across all community reservation like SC,ST, MBC etc.

The court thus directed the state to provide horizontal reservation within 12 weeks and quashed the GO.

Counsel for the Petitioner: Ms.N.S.Tanvi

Counsel for the respondent: Mr.E.Vijay Anand Additional Government Pleader

Citation: 2024 LiveLaw (Mad) 228

Case Title: Rakshika Raj v State of Tamil Nadu and Others

Case No: W.P.No.6967 of 2022