The landmark NALSA judgment in 2014 ushered in a new era for the transgender community in India. Building on this precedent, various courts across the country have recognised their rights. However, a crucial gap remains. While the judiciary has played a proactive role, legislative action to translate these legal pronouncements into concrete protections has been sluggish.
In the Vishaka judgment, sexual harassment at workplace was recognized as a violation of human rights and guidelines were given to the state in 1997, however only 10 years later did the government come up with the new legislation (POSH). In the KS Puttaswamy judgement also, the right to privacy was laid as a fundamental right in 2017. However, the notified DPDP Bill doesn’t conform with the principles laid down in the judgment nor has it still come into effect.
This lack of legislative enthusiasm is the problem that exists. The judiciary can only go as far as to recognise the rights, the implementation and societal acceptance of those rights is in the hands of the legislature and the executive, but they don’t seem to care.
This piece delves into this very gap. This piece aims to point out the gap that exists between the judiciary and the implementation by the legislature, particularly with respect to transgender rights.
Reservations- a judicially yes, a legislative no?
The NALSA judgement directed the state to extend the reservation benefits to the transgender community as well, however these instructions have not been consistently implemented. The judgement directed the Centre and the State governments to provide trans people “all kinds of reservation” in admissions to educational institutions and in employment. The Transgender Persons (Protection Rights) Act, 2019 does not include a provision for reservations for Transgenders.
In the case of National Legal Services Authority of India vs Union of India, Miscellaneous Application No. 396/2023 in W.P.(C) No. 400/2012, 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 Supreme Court 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 CJI 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.
In yet another case, Mx Kamlesh & Ors. v. Niten Chandra & Ors., Contempt Petition (Civil) No. 952 of 2023 in Writ Petition (Civil) No. 400 of 2021, the centre has unequivocally stated that transgender persons can avail SC/ST/OBC/EWS reservation and that no separate quota can be made for them.
These cases show the judiciary’s stand, which is horizontal reservations for the transgender community and also reflect that the judiciary has passed on the baton to the legislature. The legislature however is clear on its stand on reservations. So where does one go from here?
When we look at High courts of the country, the situation is sadly similar.
After the case of Sangama v. State of Karnataka, Karnataka government implemented limited horizontal reservations for transgender individuals in government jobs by amending the Karnataka Civil services (General Recruitment) (Amendment) Rules, 2021. However, this initiative fell short, as these reservations only apply to specific categories of positions (Groups A, B, C, and D) and do not extend to other sectors like private companies or educational institutions. Additionally, these amendments did not address other barriers faced by transgender people, such as high exam fees or limitations on the number of attempts allowed.
In the case of The President v The District Collector, 2023 LiveLaw (Mad) 240, the Madras High Court directed the state government to extend reservations to the transgender community in local body elections. The court held as follows:
“It is also important to hear the voices of this community…In order for this, the reservation for Transgenders must extend to forums of law making institutions. It is in these law making forums, where Transgender persons can express their views and discuss their rights. More so, Transgender persons have a Right to Reservation, owing to the fact that “they are socially Backward Class,”
However, no steps were taken by the Madras government to ensure that the transgender community got reservations in the local body elections. At this juncture, it is also pertinent to note that there is not even one MLA or MP who is from the transgender community, so essentially there is no representation of the community in the legislature or the judiciary.
In the case of in the S. Tamilselvi v. Sect to Government 2022 LiveLaw (Mad) 430, the court directed that the transgender student has to be availed with special reservation in the cut-off for admission in an educational institution.
Now, in June, 2024 the Madras High court in the case of Rakshika Raj v State of Tamil Nadu and Others, 2024 LiveLaw (Mad) 228, has issued another judgement which quashed the government order giving reservation to transgender persons as a most backward class community. Justice GK Ilanthraiyan noted that the state had failed to implement the judgment of the Supreme Court in the NALSA case properly. The court noted that by bringing transgender persons into the Most Backward Class community, the state was treating gender as a caste which was against the judgment of the Supreme Court. The court added that only horizontal reservation could be granted to the community for complying with the order of the Apex Court. The court has granted the government 12 weeks for implementing horizontal reservations of transgender persons.
In the case of Mrinal Barik -Versus- The State of West Bengal & Ors., 2024 LiveLaw (Cal) 145, the Calcutta High Court has directed the West Bengal government to ensure 1% reservation for all transgender persons in public employment in the State, in accordance with the Supreme Court’s NALSA guidelines.
A single bench of Justice Rajasekhar Mantha held:
“This Court, however, notes that in terms of paragraph 135 (3) in the National Legal Service Authority Vs. Union of India & Ors. (2014) reservation has not yet been made in the State for transgender persons. In those circumstances, this Court directs the Chief Secretary of the Government of West Bengal to ensure 1% reservation for the category of persons mentioned in the NALSA case in all public employment in the State.”
In January 2022, the Andhra Pradesh High Court had directed the state government to follow the guidelines laid down in the NALSA judgement and gave the state three months of time for the same. We are in the year 2024 now, and Andhra Pradesh still does not have horizontal reservations of the transgender community.
As now (June 20204), Karnataka is the only state that has provisions for 1% horizontal reservations, which too has its own shortcomings.
The gap between the legislature and the executive
The legislature does not seem to care about the judiciary and the executive does not seem to care about the legislature.
Kerala was the first state in India to launch the State Policy for Transgenders in 2015. However, the police has time and again been accused of harassment of transgender people. Two transgender people were, walking on the street and were jumped by cops. In another instance, 15 transgender people were beaten up and pushed by the Kerala Police.
In Tamil Nadu, the legislature took a progressive step by amending the Tamil Nadu Subordinate Police Officers’ Conduct Rules in response to a directive issued from the Madras High Court in the case of Mrs S. Sushma & Ors. v. The Director-General of Police & Ors. This amendment, known as Rule 24-C, explicitly prohibits police officers from harassing individuals belonging to the LGBTQIA+ community and those working for their welfare. The amendment was a response to widespread reports of police misconduct and was intended to create a safer and more inclusive environment for LGBTQIA+ individuals.
The Madras High Court, in the landmark case of Mrs. S. Sushma & Ors. v. The Director-General of Police & Ors., provided comprehensive guidelines for the police, judiciary, and other public servants to ensure non-discrimination and respect for the LGBTQIA+ community. The court’s directives were clear and aimed at sensitizing all levels of government to the needs and rights of LGBTQIA+ individuals. A detailed analysis of the case can be read at Sabrang.
Despite the clear legislative mandate and judicial directives, the executive branch has shown a troubling pattern of non-compliance. Reports of continued harassment and discrimination by police officers indicate that the amendment to the conduct rules is not being enforced effectively. This disregard for legislative mandates is not just a failure of individual officers but points to a systemic issue within the executive branch.
One egregious example of this non-compliance is the incident involving three transgender women who faced harassment and invasive medical examinations by police officers while attempting to visit the Sabarimala temple. This incident occurred despite the clear prohibition of such actions under the amended conduct rules. The police officers involved blatantly disregarded the legislative mandate, demonstrating a lack of respect for the rule of law and the rights of the LGBTQIA+ community.
Unfulfilled promises and nowhere to go
The Indian legal landscape regarding transgender rights paints a concerning picture. The judiciary, through landmark judgments like NALSA, has established a progressive framework. However, this progress is tragically stalled by the sluggishness of the legislature and the ineffectiveness of executive implementation. This discord between the three pillars of government creates a frustrating labyrinth for the transgender community seeking to have their rights recognized and protected.
The NALSA judgment’s mandate for reservations remains largely unfulfilled. States like Kerala, despite boasting progressive policies, fail to address the rampant police harassment faced by the transgender community. The recent Madras High Court judgment quashing the transgender reservation under MBC category highlights the lack of clear legislative direction. This inconsistency creates confusion and leaves the transgender community in a precarious position, unsure of where to turn for recourse.
The current situation necessitates a multi-pronged approach. The judiciary needs to remain vigilant, issuing clear directives and holding the legislature and executive accountable. The legislature must translate judicial pronouncements into concrete and enforceable laws. These laws should not only address reservations but also encompass wider social inclusion initiatives like anti-discrimination measures and sensitization programs.
A call for harmony
The discord between the legislature, judiciary, and executive creates a significant roadblock for achieving true equality for the transgender community. Bridging this gap requires a concerted effort from all stakeholders. Ultimately, true progress will be achieved only when the three pillars of government function in harmony, working towards the shared goal of an inclusive and equitable society for all.
Related:
No proposal for affirmative action in education or employment for transgenders: Govt
Madras HC issues guidelines for sensitisation of stakeholders in LGBTQIA+ matters
Telangana: Transgender individual brutally lynched by mob in Nizamabad