Introduction
The Trans community is one of the weaker sessions in society. This community was traumatized and sensitization. The constitutional values shall manifest human beings to all irrespective of caste, color, sex, religion, etc. The constitutional law enforces Equality for all persons as Male, female, and others. Whereas others shall include non-gender conformity, Transgender, gender identity, sexual orientation, etc. Initially, Trans communities chronically rejected fundamental rights. The government never afforded any special provisions in the constitution. The reservation policy is one of the Basic structures of the Indian constitution. After the NALSA [1]judgment, the court directed the government to implement the policy for the Trans community. Justice Radhakrishna interpreted Articles 15(4)[2] and 16(4)[3] which enforce the state to have special provisions envisaged reservations to the Trans community. The Trans community is entitled to get a reservation in public employment services. Nevertheless, the state of Tamil Nadu, Bihar, Karnataka, Kerala, Orissa, Andhra Pradesh, and West Bengal implemented a policy for the Trans community. However, the state government neglected to provide reservations for the Trans community in public employment and the educational system.
Problems faced by the Trans community
The state government created a lot of confusion for the Trans community regarding the reservation policy. Some the transgender belong to SC/ST, OBC, and general category[4]. The state government has special provisions to enforce on socially and educationally backward classes. The state has an exception to include a reservation policy for the Trans community. However, the state government opposed the guidelines of NALSA judgment and ignored the diversity challenge.
Special Provisions Relating To Reservation
- Article 15:- which secures that the state shall not discriminate against any person based on sex such as Transgender, eunuchs, sexual orientation and gender identity, etc.
- Article 15(2):- Transgender can access public places, shops, Public restaurants, hotels, schools, and employment without causing any discrimination
- Article 15(3):- The state bound to make special provisions for women and children shall include Trans women and Trans children.
- Article 15(4):- signifies special provisions for socially and educationally backward class of citizens have a legal obligation on the state to implement for the Third Gender category.
- Article 16(1); – indicates equal employment opportunity shall be entitled to all the citizens shall include of sexual orientation and gender identity.
- Article 16(2):- discrimination against transgender at workplace or office the state is bound to take stringent action
- Article16(4):- The state has a legal obligation to enforce reservation of public employment for Transgender. This provision falls under the category of backward class.
Judicial intervention
In NALSA Judgment the court reinstated Article 15(4) special provisions embraced for Trans community of the socially and educationally backward class. The state is bound to follow constitutional values to draft appropriate policies for the Trans community and enhance employment opportunities. The court recognizes the Third gender is entitled to provide a reservation in the public appointment. They are eligible for the public appointment which is reserved for women candidates. The court safeguards the Trans community shall not be misconstrued at the workplace on the ground of sex. On the other hand Justice Dinesh Mehta [5]upheld employment rights for Ganga Kumari. She is entitled to work in the police force. The court directed to Rajasthan Public service commission to encompass the recruitment board to invoke sex and gender. In addition the Navtej Johar[6] case court emphasized Public employment for the Trans community such as the Indian Army, Defence, Airport, Police officers, etc. Justice Suraj Govindraja[7] incorporated government to amend 1% of reservations for Transgender under General requirement rules 1977. The court referred to Indra swahey case [8]reservation policy can be vertical or horizontal. The vertical reservation shall include SC/ST and OBC. Whereas horizontal reservations inclined special reservations such as women, disabled, disadvantaged groups, etc. The horizontal and vertical reservations are complementary to each other but not just sexual orientation or gender identity which enables Transgender falls under the category of SC/ST and OBC. Recently, the Madras High court [9]Transgender reservation in public employment is mandatory. The court directed under Tamil Nadu uniformed services recruitment shall include reservation for Transgender who identify themselves as women.
Failure of Transgender Persons Protection of Rights Act, 2019
The bill excluded Reservation policies for transgender such as horizontal reservation, progressive policy, and OBC category. Sec 8[10] defines appropriate government should establish social security for the Trans community. The third gender category for reservation quota was discarded. The appropriate government has an outcast inclusive policy of education and public employment for the Trans community. However, the bill was a failure to Tran’s community.
Conclusion
The state government must review the reservation policy for the Trans community. The reservation is required for the Trans community to enhance education and employment or else the Trans community shall be deprived of the society. Hence, the constitutional law is absent for Trans community to implement reservation.
Author(s) Name: Yamuna K (Alliance University, Bangalore)
References:
[1] NALSA V/s Union of India, 2014, SCC(5) 438
[2] Constitution of India, 1950, art 15(4) nothing in this article or clause (2) of Article 29 shall prevent the state from making any special provisions for the advancement of any socially and educationally backward classes of citizens or the scheduled caste and the scheduled tribes.
[3] Constitution of India, 1950, art 16(4) nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the state, is not adequately represented in the services under the state.
[4] Dhriti Mankatalia, Don’t have just one identity: Transgender people urge the government to rethink quota under OBC category, https://thewire.in/rights/dont-have-just-one-identity-transgender-people-urge-govt-to-rethink-quota-under-obc-category, accessed on 6th April 2022.
[5] Justice Dinesh Mehta, Ganga Kumari v/s State of Rajasthan, Civil W.P No.14006/2016, (2017),https://translaw.clpr.org.in/wp-content/uploads/2018/09/Ganga-Kumari.pdf, accessed on 8th April 2022
[6] Navtej Singh Johar v/s Union of India, AIR 2018, SC 4321
[7] V.Venkatesan, Karnataka becomes the first state to reserve jobs for Transgender persons. https://thewire.in/lgbtqia/karnataka-first-state-reserve-jobs-transgender-persons accessed on 2nd April 2022.
[8] Indra Sawhney v/s Union of India and others 1992, AIR 1993, SC477.
[9] Saratha v/s state of Tamil Nadu and others2022, MANU-TN-1651-2022-MAD20220404204023.pdf,accessed on 2nd April,2022
[10] Transgender Persons (Protection of Rights) Act, 2019, sec 8:- The appropriate government shall steps to secure full and effective participation of transgender persons and their inclusion in society,https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf, accessed on 2nd April 2022.
