Transgender Persons Can Avail SC/ST/OBC/EWS Reservation; No Separate Quota : Centre Tells Supreme Court

In this historic ruling, a bench of Justices KS Radhakrishnan and AK Sikri not only recognised gender identities outside the male-female binary and granted legal recognition and protection to the ‘third gender’, but the court also directed the central and state governments to devise mechanisms for the realisation of their rights, including by according them the benefits of affirmative action. The judgement states, “We direct the Centre and the state governments to take steps to treat them 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.”

Earlier this year, members of the transgender community approached the top court by filing a contempt petition pointing out that no reservation policy has been formulated for transgender persons, in contravention of the Supreme Court’s directions. The non-implementation of the direction with respect to affirmative action, in particular, adversely affected the livelihood and education of transgender persons, the petitioners have argued, complaining that members of the transgender community are not being provided certificates of identity by the concerned authorities and find it very difficult to get any employment due to the social stigma. A bench headed by Chief Justice Chandrachud issued notice in the contempt petition in March and sought the response of the union government as well as the governments of all states and union territories.

Last week, the Ministry of Social Justice and Empowerment filed an affidavit in response to the petition, maintaining that the government has “diligently taken necessary steps for implementing the directions of the court in NALSA” by, inter alia, enacting the Transgender Persons (Protection of Rights) Act, 2019; launching a national portal for the issuance of transgender certificates and identity cards “without any physical interface with any office”; constituting a National Council for Transgender persons to advise the government and conduct outreach and sensitisation programmes. However, transgender persons, the affidavit reveals, can avail themselves of the quota benefits only if they fall within the existing categories of reservation. In other words, there exists no separate federal policy for reservation for transgender persons in public education or employment. The affidavit states:

“The benefits of reservation in matters of direct recruitment in central government services and in admission to central government higher educational institutions are as follows: Scheduled Caste (SC) – 15 percent; Scheduled Tribe (ST) – 7.5 percent, Socially and Educationally Backward (SEBC) – 27 percent, Economically Weaker Sections (EWS) – 10 percent. The benefits of any of the reservations, including the above four reservations, can be availed by the marginalised and eligible population of the country, including transgender persons.”

This matter will be heard next on August 18. It is also to be noted that in the same month as when notice was issued in this contempt petition, the court dismissed an application that sought clarification on how the reservation prescribed in the NALSA judgement was to be implemented. Trans activist Grace Banu argued that clubbing all transgender persons in the same category, i.e., in the OBC reservation pool, would give rise to several problems and urged the Supreme Court to clarify that it had directed the central and state governments to adopt horizontal reservation. However, a bench led by Chief Justice Chandrachud expressed its disinclination to entertain an application in a matter that had already been disposed of.

The contempt petition has been filed by Advocate Reepak Kansal through Advocate-on-Record Pravir Chowdhury.

Case Details

Mx Kamlesh & Ors. v. Niten Chandra & Ors. | Contempt Petition (Civil) No. 952 of 2023 in Writ Petition (Civil) No. 400 of 2021