On the 2nd of February 2021, a single judge of the Calcutta High Court, through a writ of mandamus, directed the administrators of the Joint CSIR-UGC NET examination to institute certain affirmative action measures for transgender candidates. The examination is a means to determine eligibility for Junior Research Fellowships and Lectureships/Assistant Professorships at Indian Universities.
- Discrimination Analysis
The petitioner succeeded in demonstrating that while the UGC had granted approval for reservation and allied benefits in the CSIR-UGC NET examination, the Joint CSIR-UGC NET, which stands at an almost equal footing had failed to incorporate these measures. The fact that these two exams were ‘more or less on the same footing’ was not considered necessary for the equality analysis in this case. Therefore, although there were some differences in these exams, the reservation mandate applied equally to them. The court held that the failure to provide the same affirmative action measures, such as reservation, age relaxation, and fee concession for the transgender community amounted to discrimination.
2. Reservation and The Transgender Persons (Protection of Rights) Act, 2019
The mandate to institute affirmative action measures for transgender population had been recognized in the Supreme Court directions in NALSA (direction 3). Direction 3 required the State and Central governments to treat transgender persons as socially and educationally backward citizens and to grant them reservation in educational institutions and public appointments. The Transgender Persons (Protection of Rights) Act, 2019, has not legislated with respect to reservation for the transgender population. Owing to the joint effect of Articles 141 and 142 of the constitution, the law laid down by the Supreme Court, and this includes the law laid down through directions, is the law of the land, unless replaced by an Act of the Parliament. Therefore, the reservation direction had attained the status of law in India, unless replaced by a Parliamentary Act. The 2019 Act did not replace this reservation provision. Moreover, no precedent discusses the status of un-legislated Supreme Court directions. Therefore, it is arguable that if a Supreme Court direction is not replaced by legislation, its status as the law of the land continues to hold. As a result of this discussion, State and Central Governments must provide reservations and associated benefits to the transgender population in public appointments and the discrimination analysis undertaken in this judgment survives regardless of the failure to provide for reservation in the 2019 Act.
3. Right to Life and Dignity Analysis
In addition, the court also held that the failure to institute the prayed for affirmative action measures amounted to a violation of the right to life. The court noted that the right to life included a right to life with dignity. The court linked the non grant of reservation, fee concession and age relaxation as a violation of the right to life through the violation of dignity.
Accordingly, the court ordered that the above-mentioned affirmative action measures be implemented immediately.
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