Horizontal Reservation For Transgender Persons : Supreme Court Refuses To Entertain Plea To Clarify NALSA Judgment

The Supreme Court on Monday (March 27) refused to entertain an application which sought a clarification that the reservation meant for transgender persons as per the 2014 judgment in the NALSA case is horizontal reservation.

The bench led by Chief Justice of India DY Chandrachud expressed disinclination to entertain the application in a disposed of matter. The bench however gave liberty to the applicant to avail other remedies in law (such as filing a separate substantive petition) for the reliefs sought. The application was filed by Grace Banu, a transgender rights activist. Senior Advocate Jayna Kothari represented the applicant.

The applicant pointed out that in National Legal Services Authority vs Union of India, the Supreme Court had directed the Union and the States to treat transgender persons as a socially and educationally backward class and provide them reservation in education and public employment. However, the Court did not state how the reservation should be implemented. Therefore, the applicant stated that many states are yet to implement such reservations.

The applicant stated that the NALSA judgment gives the impression that transgender persons are to be treated under the OBC class and hence their reservation will be vertical. If the reservation for transgender persons are treated as vertical reservation, it will give rise to several problems. The applicant illustrated some issues as follows :

1. A transgender person belonging to SC/ST category will have to choose whether to claim SC/ST quota or OBC quota.

2. If such persons opts for SC/ST quota, they will lose the benefit of transgender quota and will have to compete with others in the SC/ST category, putting them at a disadvantage.

3. if such persons are already from the OBC category, they will not get further benefits of affirmative action as a transgender persons.

The applicant argued that the effective way of giving reservations for transgender and inter-sex persons is on the ground of gender and disability, as has been done in the case of women and persons with disabilities.

The application stated that the Ministry of Social Justice moved a cabinet note in September 2021 to include transgender persons in OBC category. Tamil Nadu government has decided to include them in Most Backward Class category. Karnataka is the only state where they have been given horizontal reservation to the extent of 1%.

The applicant further prayed that reservations for transgender persons should include concessions in cut-off marks, age. The following were the reliefs sought in the application :

1. Clarify/modify the judgement dated 15.04.2014 passed in Writ Petition (Civil) No. 400 of 2012 that the reservations meant for transgender persons are horizontal reservations:

2. Clarify/modify the judgement dated 15.04.2014 passed in Writ Petition (Civil) No. 400 of 2012 to the effect that reservations for transgender persons should also provide for concessions in age, cut-off marks and physical criteria, as provided to other reserved categories;

3.  Clarify/modify the judgement dated 15.04.2014 passed in Writ Petition (Civil) No. 400 of 2012 to the effect that reservation should be provided for transgender persons in addition to public employment and public education also in allotment of housing sites, schemes and in local bodies.

The application was drawn and filed by Dr.Anandita Pujari, Advocate.

Case Title : National Legal Services Authority of India vs Union of India | Miscellaneous Application No. 396/2023 in W.P.(C) No. 400/2012

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