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Prithviraj Raorane,
DES SNFLC
Introduction-The supreme court recently sought responses from various states and UTs regarding compliance with the directions given in the landmark case NALSA vs. Union of India. The case is well known for its third gender recognition. The case revolved around 5 main issues, before 2014 there was no legal recognition of the transgender community, the pre-existing laws only mentioned two genders, male and female, due to which the transgender community did not have access to legal rights such as article 14, 15, 21. The second issue was whether the transgenders have the right to choose their gender? Third issue was whether the States should pass a legislation to protect the rights of the transgenders?
Case law (Nalsa vs. Union of India) and legal implications-
This case, initiated by the National Legal Services Authority of India (NALSA), sought legal recognition for individuals who do not fit within the traditional male/female gender categories, including those who identify as "third gender." The Court needed to determine if individuals outside the male/female gender binary could be legally recognized as "third gender." It considered whether ignoring non-binary gender identities violated fundamental rights guaranteed by the Indian Constitution. The Court referred to the "Expert Committee on Issues Relating to Transgender," formed under the Ministry of Social Justice and Empowerment, to inform its decision. In this landmark ruling, the Supreme Court legally recognized "third gender"/transgender individuals for the first time and extensively discussed "gender identity." The Court affirmed that third gender individuals are entitled to fundamental rights under both the Constitution and international law. Additionally, it directed state governments to establish mechanisms to protect and realize the rights of "third gender"/transgender persons.
Supreme court’s judgement and Government’s inefficiency-
The court also gave orders to state and central government to treat transgenders as minorities and socially and economically backward classes thereby to give them reservation in jobs and education. In today’s time the transgender community is dissatisfied with the government for not taking proper measures and not implementing policies meant for protection of the community. A contempt petition was filed which alleged the absence of effective reservation policy for transgenders, even after the judgement was delivered. They stated that the lack of reservation policy has miserably affected the livelihood and education of transgenders. The petitioners also alleged that members of the transgender community are not provided with any kind of certificates of identity by the authorities, and they find it difficult to find any employment due to the social stigma attached to them. The court noticed that five Union territories and 3 states namely Sikkim, Rajasthan, Telangana, UT of Chandigarh, NCT of Delhi, Lakshadweep, Dadar and Nagar Haveli, Daman and Diu, Ladakh were yet to file their responses regarding with their compliance with the said judgement of the Supreme Court. Therefore, the court ordered that the responses to the said compliance are to filed by 31st August. The next hearing regarding this matter is on 6th September.
The current reservation status at State and Centre level - Another aspect regarding the reservation status of the transgender community has also been put forward which demands for horizontal reservation. The difference between horizontal and vertical reservation is that the horizontal reservation applies to every section of the society may it be OBC, SC or ST, which means that the transgender community would reservation in each category may it be General or OBC, SC, ST. Recently, Karnataka has become the first state to grant 1% reservation to the transgender community in all government services. The reservation policy used by the Tamil Nadu and Kerala government is of vertical reservation, which means that they provide reservations in a category separate from or part of reservations for one of the SC/ST/OBC categories. The Centre, however has denied separate reservation for the transgender community. The centre further stated that the transgenders can avail any of the existing reservation categories such as OBC, SC or ST if they fit into it. However, there still lies a problem as there is no uniform reservation criteria nationwide for transgenders, every state implements the reservation policy according to their own will.
Conclusion-Article 15(4) and Article 46 of the Indian Constitution states that the State has to undertake such actions, which are in favour of protecting the interests of the weaker sections of the society and to protect from every form of exploitation. The same has not been reflected in legislative and executive actions of the government. For instance, in the Vishakha case, although the guidelines were made by the court, practical adherence with the guidelines came only after the POSH Act was enacted. There has been time to time rulings of the court which highlighted the need of integrating the transgenders into the mainstream, still there has been lack of action from the government’s side. In the case of President ND Mohan v. District Collector and ORS, the Madras High Court identified this need and stated that this need could be solved by giving reservations to the transgender community. The government on the other hand is stiff on its decision to grant vertical reservation and not horizontal reservation, but the problem with vertical reservation is that it categorizes persons on a community or a caste basis. If a transgender person belongs to general category, he cannot avail the reservation. The reservation shall be granted on a gender basis which is why in the Nalsa vs. Union of India third gender recognition was given to the transgender community. It is important to understand that the transgender community still faces social stigma and there is still ignorance and apathy towards them, which is why integrating them into the mainstream society is very necessary.
References-
1) Meemansha Choudhary, Challenges and Prospects of Transgender Reservation: A Call for a Universal Approach, clsnluo.com, (July 20, 2024), https://clsnluo.com/2024/01/05/challenges-and-prospects-of-transgender-reservation-a-call-for-a-universal-approach/
2) Neha Maria Benny, Towards Equality and Inclusivity: The Case of Transgender Horizontal Reservation, SPRF.in, (July 19, 2024), https://sprf.in/towards-equality-and-inclusivity-the-case-of-transgender-horizontal reservation/#:~:text=An%20inherent%20issue%20with%20the,both%20caste%20and%20gender%20categories
3) SOUTH ASIAN TRANSLAW DATABASE, NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA, translaw.clpr.org, (July 21, 2024), https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/#:~:text=SIGNIFICANCE%3A,in%20securing%20transgender%20persons'%20rights.
4) National Legal Services Authority vs Union of India & Ors, 2014, SCC 438.
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