Life does not treat you fairly. The Calcutta High Court, however, has decided to ensure fair treatment of transgenders. The following observation is from its judgment and order dated 14 June 2024 in the case of Mrinal Barik v. The State of West Bengal & Ors (WPA 21508 of 2023), passed by Justice Rajasekhar Mantha:-
7. This Court, however, notes that in terms of paragraph 135 (3) in NLSA (supra), reservation has not yet made in the State for transgender persons.
8. 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 NLSA (supra) above, in all public employment in the State.
Para no. 8 has opened two fronts— The first is led by those who say that the court cannot direct the state to provide for reservation, and the second by social activists who say that when the legislature and executive are inactive, let the court fill the void.
In a country governed by the Rule of Law, sometimes in some states although by the Rule of Politicians, every Act, howsoever noble it may be, must have the sanction of law and reason.
THE FIRST FRONT
The opponents of judicial activism cite the following decision— State of Punjab v. Anshika Goyal, (2022) 3 SCC 633:
10. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sportspersons, instead of 1% as provided by the State Government. A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sportspersons. A specific Order dated 25-7-2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sportspersons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India…
The ratio of this para is that the High Court cannot sit in appeal over the decision of the state on the fixation of the percentage of reservation. However, West Bengal did not have any reservations for transgender persons, therefore, the Calcutta High Court did not have to sit in appeal and hence para no. 8 of Mrinal (supra) is not hit by para no. 10 of Anshika (supra).
The opponents of judicial activism after realizing the non-application of Anshika (supra) to Mrinal (supra) move to the First Principle of Reservation, i.e., they rely upon the wording of sub-Articles 3, 4, 5, and 6 of Article 15 and sub-Article 4 of Article 16 to show us that reservation is not a right rather a discretion of the state. Hence, the court cannot direct the state to provide for reservation for any class since no one has any right to reservation.
Examining the argument of the First Principle
Reservation is not a fundamental right. Now, reservation activists would however promptly remind you that reservation becomes a fundamental right if you are backward. On the other hand, politicians with both their hands up in the air, would say, “Look it is also a fundamental right if you vote for us”.
What does the Constitution say?
The Constitution enables the state to make reservations for the backward classes of citizens. Therefore, once a class of citizens prove that they are a backward class, reservation becomes an inevitable right. Every state has its Commission for Backward Classes to enable the citizens to make applications before it for classifying them as backward. Therefore, one has a right to apply for getting classified as backward. The application is to be decided based on parameters of backwardness. Therefore, one could argue today that the discretion of the state to pick and choose classes and classify them as backward now needs to be informed by objective criterion, and hence, the truly backward classes have now become entitled to reservation. Therefore the drift of reservation is that subject to fulfillment of parameters, reservation will become a right. I am not ready to say that it is a fundamental right, since a fundamental right accrues to you because you are born as a human. Having said that I do keep in mind that now reservation is a facet of the right to equality, and therefore one would argue that there is a fundamental right to reservation. However, I must say that the Right to Reservation at best is a conditional right which one may enjoy once his class fulfils the test of backwardness.
The Last Try
The opponents now say that, see therefore reservation is a ‘conditional right’. However, we would like to refer to the following dicta(s) to show that the court can never direct the state to provide for reservation, the opponents say:-
9.1 In Gulshan Prakash (supra), it was observed by this Court that there cannot be any mandamus by the Court to provide for a reservation for a particular community. In the case before this Court, the State of Haryana did not provide any reservation for SC/ST/backward community at the postgraduate level. A conscious decision was taken by the State of Haryana not to provide for reservation at the postgraduate level. The same was challenged and to that this Court has observed that there cannot be any mandamus by the Court as claimed. …and the State Government is the best Judge to grant reservation for SC/ST/backward categories at postgraduate level. … It was further observed that every State can take its own decision with regard to reservation depending on various factors. At this stage, it is to be noted that it was also submitted before this Court that since the Government has decided to grant reservation for SC/ST/backward class communities in admission at MBBS level i.e. undergraduate level and therefore the State has to provide for reservation at postgraduate level also. To that, this Court observed that since the Government had decided to grant reservation for SC/ST/backward categories in admission at MBBS level i.e. undergraduate level, it does not mean that it is bound to grant reservation at the postgraduate level also.
9.2 In the case of Central Bank of India SC/ST Employees Welfare Association and others (supra)... In paragraph 26, it was observed and held as under:
“26. … Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. Of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise.”9.4 … It was observed that even if the under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of the Court, no mandamus can be issued by the Court to the State Government to provide for reservation. …
— State of Punjab v. Anshika Goyal, (2022) 3 SCC 633
The dicta is that the court cannot issue a mandamus to provide for reservation. The drift of such dicta is for SC and ST and sports quota reservation. Such dicta are based on the idea that no one has any crystallized right given by the Constitution to have a reservation. The crystallization takes place when the state decides to give reservation. Interesting to note that the court did not have to pronounce any binding precedent as regards the reservation for the other backward classes, in particular, the transgender persons in the preceding decisions.
Therefore in this backdrop, we need to see whether transgender persons have been classified as Other Backward Classes for entitling them to reservation.
In Mrinal (supra), the court referred to the decision of the apex court in National Legal Service Authority v. Union of India & Ors. (2014) 5 SCC 438:-
5. The Hon’ble Supreme Court in the case of National Legal Service Authority Vs. Union of India & Ors. reported in (2014) 5 SCC 438 at paragraph 135 has declared as follows,
135. We, therefore, declare:
135.3. We direct 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 cases of admission in educational institutions and for public appointments.
The opponents would still therefore argue that such a direction for grant of reservation was upon the state, however, the court did not specify any percentage of reservation. The para no. 135.3 however needs to be seen from the drift of para no. 67 of National Legal Services Authority (supra):-
67. TGs have been systematically denied the rights under Article 15(2), that is, not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.
The apex court therefore by use of words 'entitled' and 'eligible' read with the observation— “State is bound to take some affirmative action…” has declared the transgender persons as OBC for Article 15(4) and 16(4). Therefore the case of transgender persons is a special case wherein by a judicial fiat the transgender persons have been classified as OBC. Therefore, Justice Rajasekhar Mantha has followed the special and extraordinary dicta of the apex court and directed for its implementation, given Article 144 what the state executive or legislature must have done, which they, however, have not done.
The inaction of the legislature and executive may indicate that they do not want to provide for reservation. They, however, no longer have the discretion to refuse reservation to transgender persons because the latter now have a crystallized right from the judgment in NALSA (supra).
THE SECOND FRONT
Equality of opportunity asks that different people be treated differently equal. Our transgender citizens are biologically different. Such a difference has bestowed them with a different gender configuration, thereby making them have their unique but natural conduct. In this process, they have, however, not ceased to be humans. However, their Right to Liberty and the right to express their sexual preferences have been buried under society's conventional biological definition of a boy and girl and man and woman. History will never forgive us for our lack of understanding of biology despite we had one Darwin, which continues to date. To do the course correction in the Archive of our Country, the Calcutta High Court spoke on behalf of the State of West Bengal to Transgender persons. The Apex court in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 said the following:-
121. When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been. The decision of the US Supreme Court in Buck v. Bell ranks amongst the latter. It was a decision in which Oliver Wendell Holmes Jr., J. accepted the forcible sterilisation by tubular ligation of Carrie Bucks as part of a programme of State sponsored eugenic sterilisation. Holmes, J. while upholding the programme opined that: “three generations of imbeciles is enough”. In the same vein was the decision of the US Supreme Court in Korematsu v. United States, upholding the imprisonment of a citizen in a concentration camp solely because of his Japanese ancestry.
With this, one may close all the fronts and look forward to develop collegiality with our transgender citizens.
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