India’s queer community is struggling to realise its civil rights on multiple fronts. The Indian Supreme Court has begun hearing petitions on marriage equality from a panoply of petitioners, including those within the transgender community. While the issue of marriage equality has captured much public attention, India’s transgender community has also been embroiled in protests to demand horizontal reservation (i.e. quotas) within education and public employment.
Affirmative action in the form of reservation/quotas has been one of the primary tools through which India has sought to tackle societal inequalities, specifically because of its caste structure, which is a system of social stratification based on descent. The primary beneficiaries of affirmative action under the Indian constitution are Scheduled Castes, Scheduled Tribes and other backward classes (classified as social and economically backward classes under the constitution). While Scheduled Castes refer to Dalits – who faced the brunt of caste-based discrimination in India – ‘other backward classes’ is a broader category of people consisting of communal units (including intermediate castes) with low social and educational status.
Many transgender people find themselves at an intersection of disadvantage arising from both their gender and their caste identity. However, in NALSA v Union of India, the Supreme Court, while directing that the state take steps to provide reservation to transgender persons, classified them under the category of ‘other backward classes’, thus ignoring the intersectional nature of disadvantage many transgender persons are subject to. Recently, the Supreme Court refused to hear an application that was filed by Grace Banu, a Dalit transwoman and activist, seeking a clarification that the reference to reservation made under the NALSA judgement was to horizontal reservation, since the matter was already disposed of. Horizontal reservation would enable transgender persons to apply for reservation within each category of affirmative action beneficiaries – Scheduled Caste, Scheduled Tribe and other backward classes, as well as under the unreserved general category (typically applied to members of upper caste groups who are not entitled to caste-based reservation). Vertical reservation, on the other hand, pegs transgender persons under the category of other backward classes and ignores the intersectional nature of the disadvantage many transgender people suffer, thus compelling them to choose between either their caste or their gender identity to avail reservation.
Nonetheless, the Supreme Court left it open to the applicant to file a separate substantive petition to seek the relief of horizontal reservation. Significantly, the courts have become the central avenues for trans communities to realise their civil rights due to the inaction of the national and state governments: despite the clear direction by the Supreme Court in NALSA to provide transgender persons with reservation, the Transgender Persons (Protection of Rights) Act 2019 passed by the national Parliament makes no mention of reservation for transgender persons even under the category of ‘other backward classes’. Although the state government of Karnataka became the first state to grant 1% horizontal reservation to transgender persons in civil services, this was only achieved as a result of litigation before the Karnataka High Court. Admittedly, the recourse to courts also presents its own difficulties where judicial proceedings can be long and complex, depriving claimants of immediate relief.
If a petition to demand horizontal reservation is filed before the Supreme Court, it will present a critical opportunity for the court to develop its jurisprudence on intersectionality, which remains topical also in the context of the ongoing Karnataka hijab ban. While Justice Chandrachud in his opinion in Navtej Johar v Union of India recognised that claims of discrimination can be made on more than one ground under Article 15 of the Constitution, this case only dealt with stereotypes based on sex which are incidents of sex-based discrimination. Another interesting area of jurisprudential development is whether the Supreme Court finally recognises that there is a right to (horizontal) reservation, having long maintained that provisions of the Constitution relating to affirmative action are only enabling provisions and the discretion vests with the government to provide reservation. However, as has been argued, this stance contradicts the court’s own position, having previously held that affirmative action is not a derogation but a component of the general right to substantive equality under Article 15(1) of the Indian constitution. On this basis, the denial of horizontal reservation to transgender persons violates their general right to equality by failing to recognise the intersectional marginalisation to which the community is subject, requiring urgent remedial action from the courts and the state.
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