Calcutta HC ruling providing 1% reservation to transgender persons is a move in the right direction

This victory may turn out to be a short-term one. The petitioner, in the case, did not pray for any mandamus (judicial writ) asking for reservation for transgender persons in public employment. The petitioner only asked for her application to be considered for appointment as a teacher. The judgment does not indicate whether the government of West Bengal was put to notice, or an issue was framed on reservation in public employment.

The doctrine of judicial review and separation of powers limits the power by which the high courts can issue sweeping mandamus, to provide for reservation. All this forms a very propitious ground for the judgment to be overturned on these reasons by the appellate court on technical grounds, without entering into the controversial thicket of reservations in public employment.

The issue of reservations is multifaceted and complex but is usually centred on legislation by the state or central government. The legislation will usually identify a class of persons or caste, which is entitled to reservations. The data on backwardness is very critical. The identification of persons who are entitled is dependent on many factors such as social and educational backwardness.

The executive government by rules, or by circulars, implements the reservation by employment through a norm-based and transparent process. The constitutional courts when dealing with the validity of the legislation, will usually test the legislation on well-defined factors such as accuracy of data, absence of creamy layer and other factors to test if the goal of substantive equality has been met by the particular legislation.

The legislation is also preceded by a commission, usually headed by a retired judge and with subject experts, which invites representation, checks the data, examines historical injustices and ultimately recommends the narrow class, which will be entitled to the reservation, and the exclusions such as creamy layer and by income criterion.

The recent parliamentary enactment, Transgender Persons (Protection of Rights) Act, 2019 provides for certain rights for transgenders such as non-discrimination in employment, housing, etc. Yet, the enactment is silent about reservation.

The NALSA judgement's sweeping remark that all transgenders must be categorised as socially and educationally backwards is also questionable. The High Court could have issued directions to the state government to consider setting up a commission to recommend transgender reservations.

Some classes of transgenders arguably may meet the test of social and educational backwardness, and yet that is determined by the government through an elaborate process, and not by diktats of constitutional courts. On April 16, 2004, the government notified a committee headed by cabinet secretary with the secretary of home, law, women and child development to address issues related to the queer community. The terms of reference do not empower the committee to issue any opinion about reservations in public employment. This committee was set up on the directions of the Supreme Court in the same-sex marriage case.

The other point is shrinking public employment, and this has received scant attention. In the last few decades, state/Central governments, commissions, government bodies and public sector undertakings have reduced intake, abolished posts and appointed people on a short-term contractual basis.

In a nation that aims for equality of status and opportunities, public employment is not the panacea. In the years ahead, the state may have a diminished role in fields like agriculture, healthcare, railways, mining and natural resources and other areas in which it currently employs people in large numbers.

PSUs with monopolies in crucial sectors like banking, insurance, electricity, coal, natural gas and petroleum may disappear after disinvestment. For example, the Supreme Court recently held that after disinvestment, the labour disputes of Air India will not come before the high court. Even after disinvestment, all PSUs continue to enjoy large capital, land banks and monopolies in government orders, and yet they won't provide reservations in public employment. The disinvestment process can lead to a large section of the Indian population having no recourse to public employment. Being one of the most marginalised, the impact on transgenders will be most severe.

The judgment in the Mrinal Barik case, even if it is upheld by the appellate courts and is implemented in earnest, may not provide social and educational empowerment to transgenders.

Vasuman Khandelwal is an advocate practising before the Supreme Court and has been involved in litigation against Section 377. The views expressed are personal.