Karnataka High Court Directs NLSIU To Provide Reservation To Transgender Students As Per SC's NALSA Judgment

The Karnataka High Court as an interim measure directed the National Law School of India University (NLSIU) to provide a reservation of 0.5% to transgender persons (half the percentage of reservation provided for TGs in employment in State) with fee waiver, until it implements the 2014 directions of the Supreme Courts by formulating a reservation for transgender candidates.

In 2021 the State government provided a 1 per cent (horizontal) reservation to Transgender candidates in government jobs to be filled through the direct recruitment process. The reservation is applicable to transgender candidates in each category of General merit, SC,ST and in each of the OBC categories.

Justice Ravi V Hosmani directed, "NLSIU is directed to implement directions issued by Hon'ble Supreme Court in NALSA's case (NALSA v. Union of India) by formulating reservation along with measures for providing financial aid to TGs in education before commencement of admission process for next academic year. Until then to provide reservation of 0.5% (half the percentage of reservation provided for TGs in employment under State) as interim reservation with fee waiver and for which NLSIU may apply to State/Central Government for appropriate grant".

Further the court clarified that interim reservation is necessitated due to failure of the University to carry out directions issued by the Supreme Court in NALSA's case, admission of Transgender candidates to III year LL.B. Courses in NLSIU in pursuance of this order shall not be treated as excess, even if they are in addition to admissions under current admission process, as the same will be in force only for the current academic year.

It noted that NLSIU takes pride in various measures for transgender persons to create a level playing field 'to respond to all forms of discrimination and provide inclusive and supportive educational environment', in NLSIU.

The court however said “Strangely, it has not disclosed whether any steps are in progress or were taken for providing reservation and suitable financial aid policy specifically tailored for TGs. It is also not known whether the existing admission process accommodates TGs securing admission or undergoing studies in NLSIU. Therefore, failure of constitutional guarantees of equality of opportunity due to lack of measures/adequate measures for positive discrimination in securing sufficient representation to TGs in educational avenues in NLSIU is evident.”

It added “Present admission and financial aid policy of NLSIU is discriminatory against TGs and thereby deprived them of pursuing LL.B. Courses in NLSIU, objections of NLSIU being technical require to be ignored/waived, in facts and circumstances of present case.”

The direction was given while allowing in part the petition filed by a transgender person. The petitioner had sought a direction to the respondents (State Government and the University) to implement the Karnataka State Policy on Transgenders, 2017 and provide reservations to transgender persons, including the petitioner, in the University. Further, it sought to quash the decision of the University denying admission to the petitioner, and a direction to the University to provide admission to the petitioner in the 3-year L.L.B. course from the 2023-24 academic year.

By way of interim order the court had directed the University to grant admission to a transgender person in the 3-year LLB course for the academic year 2023-24, if found eligible. However, after the interim order the petitioner pleaded that without financial assistance reservation for TGs itself would be futile.

It was said that the Transgender persons normally suffer homelessness, disownment by family, unemployment and/or discrimination in employment resulting in lack of representation in education, employment as well as in public life. These disabilities have received recognition in NALSA's case, resulting in issuance of necessary directions and measures for addressing the same.

The University claimed that it was a premier educational institution in Law offering various courses with fees stipulated for each of them commensurate to expenditure involved. The selection of students for admission was based on cumulative score in NLSAT-LLB test and all candidates applying for said examination would be well aware of fee structure for each course at time of filing application. Therefore, being well aware of the fee structure the petitioner had appeared for the test. Neither at time of filing application nor at time of appearing for test, petitioner had expressed any difficulty in so far as fees.

Moreover, the petitioner was employed before admission to University. Therefore, the petitioner's claim for financial assistance would not be tenable. In any case, the University had lent available support to petitioners as per existing policies and had provided Laptop, stipend of Rs.27,000/- and reimbursement of interest on educational loan for a period of 3 years.

Findings:

The bench on going through the submission and judgments noted it is not in dispute that the petitioner has sought financial assistance from NLSIU. In response, NLSIU has stated that it offered financial assistance to an extent and as per existing financial aid policy.

“Thus, NLSIU has not denied the need for financial assistance by petitioner. On other hand it has stated that if the existing financial aid policy does not suit petitioner's needs, it cannot be helped,” it said.

Observing that determining specific percentage of reservation for TGs in educational avenues and manner of providing financial assistance would be beyond scope of petition under Article 226 of Constitution of India and same may also require appointing a Commission.

The court prescribed the interim measures, until NLSIU itself formulates reservation and financial aid for Transgender persons in admission to Courses offered by it including considering complete fee waiver.

Finally the court suggested “It would also be appropriate to direct State to take note of claims for reservation for TGs in education also and formulate reservation and fee reimbursement policy as contained in para-135.3 in NALSA's case.”

Appearance:

Advocates Clifton D. Rozario for Advocate Shilpa Prasad for Petitioner.

AGA Mamatha Shetty for R1 & R2.

Senior Advocate K G Raghavan and Advocate Aditya Narayan FOR R3 & R4

Citation No: 2024 LiveLaw (Kar) 525

Case Title: ABC And State of Karnataka & Others

Case No: WRIT PETITION NO.14909 OF 2023

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