Trans-persons in India have been fighting for the right to horizontal reservation for a long time.
How reservations are given in India?
Reservation in India is given to historically oppressed and disadvantaged communities so that they have a right to affirmative action policies.
Reservation in education and employment can be divided into two broad categories, namely, vertical and horizontal.
Vertical reservations are provisions aimed at addressing social asymmetry arising out of caste hierarchy or social and educational ‘backwardness’ (in the case of OBCs).
Includes: Reservations for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC).
Horizontal reservation provides affirmative policies for disadvantaged groups within categories cutting across all vertical groups.
For example, disabled persons are guaranteed horizontal reservation in all the aforementioned vertical categories alike.
What is the NALSA judgement?
A study conducted by the National Human Rights Commission revealed that in 2017, only 6% of transgender people were formally employed.
In the National Legal Services Authority of India (NALSA) vs Union of India (2014) case, the Supreme Court ruled that transgender persons have a right to reservation.
It also directed 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 education and employment.
What is the issue?
The NALSA judgment entitles trans persons to reservations on constitutional grounds.
But it does not, mention the nature of reservations - whether they are to be vertical or horizontal.
Interpretation - It has largely been interpreted as directing reservations for transgender people in the OBC category as the bench identifies the community as ‘a socially and educationally backward class’.
Such ‘backwardness based’ reservation for trans people will come at a loss for them.
Dilemma - Dalit, Bahujan and Adivasi transgender persons will have to make a choice between availing reservation either based on caste and tribal identity or gender identity.
Under such conditions, they will have to choose between a rock and a hard place.
Either compete with cis-gendered SC, ST persons.
Or compete with other caste transgender persons, and cis-gendered persons from OBC communities.
Demand - SC, ST trans people should be able to avail internal reservation in their categories (Horizontal reservations).
What has happened so far on horizontal reservations?
There has been no direction from the Central government on delivering on the right to reservation for trans persons so far.
The Transgender Persons (Protection of Rights) Act of 2019 did not have any mention of reservation neither vertical nor horizontal.
Earlier attempts - The Rights of Transgender Bill, 2015 (private bill) which had provisions for reservation for trans persons in the public and private sector was rejected in the Lok Sabha.
The Transgender Persons (Protection of Rights) Bill, 2016 (introduced by the Centre) had no provision for reservations.
A parliamentary standing committee set up under the Ministry of Social Justice in 2018, recommended reservations for transgender persons.
In States - In 2015, the Tamil Nadu government decided to categorise (only) transwomen under the Most Backward Classes (MBC) category.
After Sangama v State of Karnataka case, Karnataka became the first and only state to offer 1% horizontal reservation to transgender persons in 2021.
In 2023 April, transgender persons were included in the OBC category in Madhya Pradesh.
What is the status of the case in Maharashtra?
The Bombay High Court is hearing a petition filed to include transgenders for recruitment in MahaTransco.
The Bombay HC requested a clarification to the Maharashtra government.
In response the Maharashtra government said that providing additional reservations for transgender persons in education and public employment will be difficult.
The state government had earlier issued a government resolution (GR) for recruitment of transgenders in employment and education.
The GR stated that an expert committee would be set up under the social justice department comprising 14 members.
The bench adjourned hearing in the plea for the expert committee to consider the aspect of reservation first.
