Clarify The Steps Taken For Affording Reservation In Field Of Education/services To Members Of Transgender Community: Patna HC Seeks Govt. Response [Read Order]

The Division Bench of Chief Justice Sanjay Karol and Justice S. Kumar issued this order in a petition highlighting the pitiable state of affairs of the transgender in the state. Allegedly, the community is ostracized, more so in times of the current outbreak of Pandemic Corona Virus.

The Court appreciated the efforts of the State for taking some measures for providing immediate relief as now ration is being distributed without insisting upon furnishing a Ration Card to the members of the Transgender community.

The Court noted that the basic necessity of meeting the need of hunger stands taken care of.

In this regard, the Court fully appreciated the efforts taken by Shri Ajay, learned Government Advocate No. 5, who has been fairly assisting the Court along with Shri Akash Keshav, learned counsel for the petitioner.

Further, the Court also appreciated the efforts put in by the Government in now establishing the Facilitation Centres at the District Level wherein at least two members of the transgender community would be associated.

However, the court said that other issues warranting immediate attention, are required to be considered in the light of the direction issued by the Hon'ble Apex Court in National Legal Services Authority Vs. Union of India and others, (2014) 5SCC 438 paragraph 135.

It may be noted that Section 8 of the Transgender Persons (Protection of Rights) Act, 2019 mandates the Government to take all steps securing full and effective participation of the members of the transgender community so as to make it an inclusive society.

Equally, different welfare measures protecting their rights and interest have to be taken. It is the mandate of the statute that the Government shall formulate schemes and programmes ensuring inclusive growth and protection from stigmatization and discrimination. Fair and equal treatment and opportunities have to be afforded to them.

The High Court was of the considered view that a lot more needs to be done. The Court highlighted the following points:-

(a) Evidently, the proposal for setting up of a separate HIV Surveillance Centre has yet not been established.

(b) As per the decision taken in the meeting dated 21.03.2018 by the Bihar Kalyan Board established under the Bihar Rajya Kalyan Board Rules, 2015 two committees were formed for making recommendations and giving suggestions for the welfare of the members of the community. What is its outcome is not known.

(c) The process of sensitization of the residents of the State of the plight and the problem faced by the members of the transgender community is under process. But details thereof are not disclosed.

(d) What are the steps taken for affording reservation in the field of education or services is not clear.

On all these issues, the Court directed that a supplementary affidavit indicating the latest status and the progress made be filed by the Additional Chief Secretary, State of Bihar (within a period of two weeks).

Further, the Court directed that a report, indicating the number of facilitation centres established in Bihar and the names of members of the Patna High Court transgender community identified be also made known in a tabular form.

What facilities, including remuneration, if any, are being made available to them be made known, asked the Court.

The matter has been listed for further hearing on 15.10.2020.

Notably, a plea has been preferred in the Supreme Court seeking equal protection of laws to the transgender community from sexual crimes in the context of the Indian Penal Code.

The plea states that there is no provision or section in the IPC which may protect the third gender from sexual assault by males/females and from other transgender and anti-discrimination laws are needed to safeguard the Transgender community.

The previous orders of the Patna HC related to this PIL

The Patna High Court on Wednesday (09^th September) asked the State Government to think about enhancing the economic support to the members of the Transgender community who, "at this point in time, are suffering acute hardship, more so on account of the nature of the activity to which they are engaged."

Further, the Patna High Court on 20^th May had directed the Government to ensure that the persons belonging to the Transgender community are not deprived of food grains distributed under the social security schemes, solely for not possessing a ration card.

On 27^th August, the Patna High Court had sought a report from the Central as well as the State Government, delineating the steps taken by them to implement the welfare provisions contained under Transgender Persons (Protection of Rights) Act, 2019.

The Division Bench comprising Chief Justice Sanjay Karol and Justice S. Kumar had also asked the Government to show steps taken for compliance with the implementation of the directions issued by the Supreme Court in National Legal Services Authority v. Union of India.

Notable orders of other High Courts

Notably, the High Courts of Karnataka, Jharkhand and Telangana have also ordered the Government to ensure that the Transgender community is provided adequate protection and benefits during the lockdown.

In the month of May, a petition was also filed in the Kerala High Court seeking protection of the community against discrimination in the grant of relief measures during the lockdown.

In the month of June, the Bombay High Court had directed the Principal Secretary to the State Social Justice and Special Assistance Department to consider and dispose of within a fortnight, concerns expressed by an activist working for the transgender community, regarding the plight of the members especially after the lockdown and seeking directions for the formulation of a welfare scheme for the 40,000 members of the community in the State.

Recently, the Karnataka High Court has directed the State Government to take steps for implementation of the relevant provisions of the Transgender Persons (Protection of Rights) Act, 2019 and also extend all kinds of the reservation to members of the community.

In the month of July, the Karnataka High Court had sought a reply from the state government on why it has not included a separate category for the transgender community in its notification for recruitment to the post of Special Reserve Constable Force and Bandsmen.

Case Details:

Case Title: Veera Yadav v. Government of Bihar & Ors.

Case No.: CWJC No. 5627/2020

Quorum: Chief Justice Sanjay Karol and Justice S. Kumar

Appearance: Advocates Akash Keshav, Shaswat and Deepak Kumar Singh (for Petitioner); ASG KN Singh, CGC Ratnesh Kumar Singh and Govt Advocate Ajay (for Respondents)