QUEERING HORIZONTAL RESERVATION FOR TRANSGENDER COMMUNITY
Oct. 26, 2023 • ANJALI SINGH
QUEERING HORIZONTAL RESERVATION FOR TRANSGENDER COMMUNITY
The very notion of reservation lies in the concept of Social justice which encompasses positive affirmative actions by the state to secure its citizens with equal distribution of wealth, rights, prestige, honors, power, self-respect dignity duty as well as gains and burdens in society. Social justice, as the goal backed by the government’s policies, is to prevent the accumulation of valuable resources in the hands of a particular class of society and minimize the differences between the so-called “privileged” and the “underprivileged.” Although Reservation is solely a moral responsibility of the state and not an inalienable right of the citizens. Recently, The Supreme Court ruled that reservation in appointments and promotions is not a fundamental right, and that it is for the state or the central government to decide whether or not to grant reservation in promotions. This ruling was in response to a petition submitted by Tamil Nadu seeking other backward class (OBC) quotas in medical colleges. Reservations have been the subject of court examination multiple times throughout India's independent history. In the case of M.R. Balaji v. State of Mysore in 1962, and C.A. Rajendran v. Union of India in 1967, a five-judge panel decided that Article 15(4) of the Indian Constitution is only an enabling provision that allows the government discretionary power to give reservations. This implies that the government is not obligated by the Constitution to impose reservations on the initial recruitment and promotion of Supervisory and Scientific Employees (SCs and STs). Several additional court rulings, notably Indra Sawhney v. Union of India in 1992 and M. Nagaraj v. Union of India in 2006, affirmed similar findings. The important aspect of the decision in the case of Sawhney judgment is the idea that the proportion of reservation beneficiaries should not exceed 50% of India's population, and that the state can reserve seats through Vertical reservation and Horizontal reservation in accordance with the ceiling limit.
What is Horizontal and Vertical Reservation?
India's reservation policy has been classified into two parts:
- Vertical reservation
- Horizontal reservation
Vertical reservation means reservations that are applicable to the Scheduled Caste, Scheduled Tribes, and Other Backward Classes. This sort of reservation is independently provided to each of these groups indicated under the law. For this case, Article 16(4) may be a sort of vertical reservation.
Horizontal Reservation refers to equal opportunities granted to several categories of beneficiaries, such as women, veterans, the LGBTQ community, and those with disabilities, that cut beyond vertical classifications. Article 15(3), for example, is a sort of horizontal reservation. It applies to each of the vertical categories separately. For instance, if women have 50% reservation in horizontal quota, then half of the selected candidates in each vertical quota category must be women, which means that half of all selected SC/ST candidates must be women, and half of the unreserved or general category must be women, and so on.
The need for horizontal reservation
Rajya Sabha MP Tiruchi Siva, a Member of Parliament, raised concerns about transgender rights and presented a Private Member Bill in 2015 (Rights of Transgender Persons Bill) that contained provisions for reservation, in line with the NALSA judgment. However, it could not pass. Such protections are absent in recent legislations such as the Transgender Persons (Protection of Rights) Act of 2019, as well as the Union government's 2020 Rules.
Earlier, in 2021, the inclusion of the transgender community to the Other backward caste (OBC) list by the state was regarded as a policy decision that is constraining in a sense that it fails to counter the multifaceted intersectional nature of oppression that a trans person may suffer in different walks of life. The conundrum lies in clubbing the trans community in the list of OBC category as such an inclusion would obscure caste inequalities and deny the diversity that exists within the trans community, the approach must be homogenous in character. For instance, those who belong to the Scheduled Caste and Tribe (SC/ST) categories, will not be able to access their claim to reservation under SC/ST and transgender person, even if they belong to both. Those who are already classified as OBC will not be eligible for affirmative action under the transgender quota. Furthermore, trans people will have to tussle for reservations with other OBCs, lowering their chances of receiving a seat or a position. Through a leading case Sangama v State of Karnataka, Karnataka became the first state, and the only state, to provide 1% horizontal reservation to the transgender community. This ensures that at least 1% of seats will be taken by transgender persons. It has been done after amending the Karnataka civil services (General Recruitment Services) 1977.
Article 14 of the Constitution guarantees equal rights and opportunities to men and women in political, economic and social aspects. Article 16 guarantees equality of opportunity in matters of public employment, however, pragmatically, employers avoid the recruitment of transgender persons. A study commissioned in 2017, by the National Human Rights Commission (NHRC), revealed that only just 6 percent of transgender were formally employed in either private or non-governmental organizations. Transgender persons need a horizontal reservation as in India due to employers' denial to accept transgender persons.
The Equality Code as an Instrument for Queer Autonomy: dissecting the NALSA judgement
In reference to Article 14, equality is granted to "any person" which includes both men and women, as well as transgender persons. . All three groups are granted equal rights in terms of employment, healthcare, educational opportunities, and civil liberties. Following the judgment of the NALSA, transgender persons were included in the reservation granted to the Socially and Educationally Disadvantaged Class (SEBC). However, they were given vertical reservations rather than horizontal reservations. Consequently, the Court of First Instance directed the State to adopt affirmative action measures in favor of transgender persons in order to empower them and rectify the century-old discrimination against them. Furthermore, the Court also ordered the State to implement reservation measures for transgenders in order to rectify the discrimination committed against them in breach of Article 16(2). The question that must be considered is whether the Supreme Court has the constitutional powers to designate a community as socially and educationally disadvantaged. It can't be denied that Article 15, Paragraph 4 of the Constitution gives the state the power to determine backwardness, and the Supreme Court has repeatedly said that the state alone can do that. In the case of M. R. Balaji, the Supreme Court made it very clear that it's the state's job to determine backwardness. Clubbing a transgender person as an SEBC without assessing and analyzing the data is not only against the Constitution's spirit and intent but also against the views of the Supreme Court in a lot of judgments. It also calls into question the constitutional right to include a transgender person in the scope of an OBC. There are two main reasons for this. First, an OBC is a group of socially and economically backward people, and using the word 'class' implies a homogeneous group, which isn't the case. Second, Paragraph 15, Paragraph 16, Paragraph 15, and Paragraph 16 are gender neutral, so reservation based on gender is not constitutional. Taking note of the first point, it is stated right away that article 15(4) makes special provisions for the advancement of "socially and educationally backward classes," which implies individuals must belong to a class that is both socially and educationally backward. There are two main reasons for this. First, an OBC is a group of socially and economically backward people, and using the word 'class' implies a homogeneous group, which isn't the case. Second, Paragraph 15, Paragraph 16, Paragraph 15 and Paragraph 16 are gender neutral, so reservation based on gender is not constitutional.
The term "class" has a lot of economic baggage and refers to relative economic ties between people in a society. The major issue is whether a group of people (including transgender/third gender individuals) may be grouped together as a "class" based only on gender. Given that class and gender are two distinct yet related notions, this argument is useless. A person of a specific gender will undoubtedly belong to some class, but it would be inaccurate to imply that all people of that gender would be members of the same class The second argument is that the validity of gender as a factor in determining social and educational disadvantage is debatable within the context of Articles 15 (4) and 16 (4). These provisions are gender-neutral, and any reservation based on gender within the scope of the abovementioned provisions is in breach of the Constitution. This is supported by the existence of Article 15 (3), which makes specific provision for women and children. This makes it clear that affirmative action based on sex or gender must be dealt with in a different manner and does not fall within the scope of Article 15(4) or 16(4). Additionally, a number of additional Constitutional provisions offer special reservations for women, such as one-third seats in Panchayats and Municipalities. These provisions within the Constitution attempt to counter the social discrimination faced by women on the basis of ‘gender’ for ages and not ‘class discrimination’. As mentioned above ‘class’ and ‘gender’ are two separate concepts and assuming that all individuals of a certain gender fall in a particular class is unacceptable. Hence, backwardness associated with gender has to be kept separate from the class backwardness arising out of social and educational reasons.
The distinction between the two types of reservation lies not only in the characteristics of the beneficiaries but also in their implementation. This has been extensively discussed by the Court in a number of landmark judgments. Furthermore, transgender, such as physically disabled category, may also be granted reservation under Article 15 (1) and Article 16 (1). Consequently, they should be regarded as horizontal categories for the purposes of reservation. The Supreme Court, in its judgment in NALSA, erroneously combined the cases of the horizontal and vertical types of reservation and erroneously assumed that both the reservation falls under Article 15 (4) and Article 16(4). Consequently, it is concluded that the inclusion of transgender in the scope of SEBC is flawed, not only in accordance with the letter and spirit of the Constitution but also in accordance with the Court's earlier judgments.
A report prepared by the United Nations Development Program (UNDP) enunciates that the term "transgender" is wide enough to include pre-operative, post-operative and non-operative ‘transsexual’ people (who strongly identify with the gender opposite to their biological sex), male and female ‘cross-dressers’ and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender-atypical. Germane to this discussion is the need to understand the usage of the term transgender and hijra, eunuchs etc. by the Supreme Court in NALSA judgement.
Whether the judgment take into consideration the wider concept of transgender or restrict specifically to hijras, eunuchs etc.?
In the judgment, it is unclear whether the concept of transgender is taken into account or if it is restricted to certain categories of people such as hijras and eunuchs. At times, the synonyms "transgender" and "hijra" are used interchangeably, suggesting that only hijras or eunuchs are to be regarded as transgender. At other times, the term "transgender" is used as a generic term that includes both hijras and other groups of people. This inconsistency is evident throughout the judgment, making it difficult to understand who intended to be considered as beneficiaries of the judgment. Para 11 clearly states that hijras are "included" as part of the category of transgenders. Additionally, on the same lines,of the judgment restricts the Indian transgender identities and cultures to hijras, eunuchs, aravanis and thirunangi, kothi, jogtas/jogappas, shiv-shakthi. There are severe flaws and the ambiguities of the judgment, especially when it comes to defining the beneficiaries of the judgment. Even if we consider that ‘transgenders’ in general are entitled to reservation as OBC (as per court’s direction in para 129), the restrictive meaning of transgender at other places in the judgment makes it highly questionable. It is clear that the judgment is applicable to the hijras and individuals with intersex variation, however, its applicability to other transgender individuals is subject to further clarification. Consequently, the judgment is to a large extent unclear as to the recipients of reservation. It is clear that it is applicable to the community of hijras and other transgender individuals, however, for other transgender individuals, the situation is uncertain. Without comment on the feasibility and validity of such reservations, it is argued that such a distinction is baseless and goes against the spirit of various provisions of the Constitution.
Transgender individuals are constantly subjected to a range of forms of social exclusion and discrimination in India. This discrimination is so pervasive that it has made their social integration a difficult task. This judgment is an urgent opportunity to rectify the situation and promote social inclusion for transgender individuals through strong legal and social considerations. The NALSA judgement can be seen as a positive step towards recognizing the rights of transgender individuals and their right to autonomy. However, there are significant challenges in the judgment, such as the inclusion of transgender individuals in the OBC category, which entitles them to reservations in education and appointments, which is in violation of the Constitution's provisions. Transgender, as the umbrella term, encompasses gender variant categories and is therefore non-homogeneous, making it impossible to be classified as 'class' which is outdated. In order to ensure transgenders' social inclusion, it is essential that the state takes calculated steps to prevent them from dropping out of school due to social harassment. This includes awareness programs and sensitizing members of the public, as well as providing horizontal reservation for transgenders under Articles 15(4), 15(1), and 16(2). This is a gradual process that requires collaboration between the state, society, and individuals to ensure that laws and policies serve as a catalyst for transgenders' development and do not impede them in the future.
 M. R. Balaji And Others vs State Of Mysore, 1963 AIR 649, 1962 SCR Supl. (1) 439.
 C. A. Rajendran vs Union Of India & Ors, 1968 AIR 507, 1968 SCR (1) 721.
 Indra Sawhney v. Union of India AIR 1993 SC 477 .
 Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212.
Sangama v State of Karnataka writ petition no.8511/2020.
 The National Human Rights Commission, NHRC, Report 2017.
 M. R. Balaji And Others vs State Of Mysore, 1963 AIR 649, 1962 SCR Supl. (1) 439.
 United Nations Development Programme, Hijras/Transgender Women In India: HIV, Human Rights And Social Exclusion, India, (Dec 2010).