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Does a public appointment advertisement that fails to include transgender persons violate the constitution and offend the NALSA reservation direction? A single judge of the Andhra Pradesh High Court was faced with this particular question in this instance. Summarily, he found that though such advertisement offends equality, it does not violate the NALSA reservation direction because of certain context specific reasons. In this blog, I will deal with the equality analysis and the reservation analysis of the court.

I. EQUALITY ANALYSIS OF THE COURT

The court noted that the constitution is silent on reservation for transgender persons. However, the Preamble resolves to provide to all citizens, equality of opportunity and transgender persons born in India are certainly protected by this resolution. Further, Article 14 enjoins the State to guarantee to all persons, equality before the law and the equal protection of the laws. The court noted that the equality envisioned in Article 14 is not just formal but also substantive in nature—or proportional equality, as the court preferred.

Proportional equality requires the State to take ‘affirmative action in favour of disadvantaged sections of society’, which in the present case could entail creating a classification between cisgender men and women and transgender persons for the purpose of the job. However, the State had failed to provide this which could be seen by the absence of a transgender column in the job application form. The job notification invited applications only from cisgender men and women resulting in the denial of equal opportunity to transgender persons. This violated the Article 14 equality guarantee and also defeated the resolution enshrined in the Preamble.

However, the court did not find the notification invalid on this account. This is curious given that a finding of unconstitutionality should have empowered the court to render this decision.

II. RESERVATION ANALYSIS OF THE COURT—VERTICAL AND HORIZONTAL RESERVATIONS

The court went into detail into the mechanics of the reservation direction issued in the NASLA case. How exactly was it to be implemented?

Vertical Reservation

The court turned its attention to whether the petitioner could claim that a seat be reserved for her in the present recruitment round. To begin with, court traced the source of reservations in public appointments to Article 16(4) of the Indian constitution which empowers the State to make provisions for the reservation of posts in favour of backward classes should it consider those classes not adequately represented in the services. Further, the court recounted the Supreme Court direction 3 in NALSA (page 128) wherein the Central and State governments were directed to treat transgender persons as socially and educationally backward classes and to extend to them ‘all kinds of reservation’ in public appointments and admissions in educational institutions. The court concluded that this direction required the State to create a separate category of reserved classes—the transgender category. This category was to be in addition of the existing categories of reservation. The court called this ‘vertical’ reservation. There is precedent for vertical reservation for transgender persons in public appointments. Following the Sumana Parmanik case, the CSIR NET eligibility criteria were amended to create a separate third gender category (vertical reservation).[1] The court noted that were this to happen in the present case, the total percentage of reserved seats would exceed the constitutionally permissible 50%.

Horizontal Reservation

However, if the reservation were to be provided ‘horizontally’, i.e., by reserving a certain percentage of seats for transgender persons within each existing category of reservation but not creating a new reservation category, the problem of the 50% cap would be avoided. This was what was prayed for in Sangama v State following which 1% of the seats were reserved for transgender persons in public services within each existing category—general merit, scheduled caste, scheduled tribes, and other backward classes.[2] In the view of the judge however, horizontal reservations were not what the Supreme Court directions called for. Horizontal reservations signified status based reservation (transgender gender identity) whereas the Supreme Court had provided for a class based reservation (transgender as backward class). Therefore, the judge found himself unable to extend the remedy afforded in Sangama to the present case. It is curious that the court which was fully cognizant of the proportional equality jurisprudence which could justify status based reservation to level the playing field for certain disadvantaged groups found itself unable to appreciate the constitutional underpinning of the 1% reservation in Karnataka public services and to consider its extension to the present case.

III. SUMMARISING THE LEGAL POSITION OF TRANSGENDER RESERVATION

The legal position was thus summarised by the judge: reservation in public posts was sanctioned by the constitution and mandated by the Supreme Court directions. However, it was to be vertical in nature. Horizontal reservation was an incorrect implementation of the NALSA directives. At the same time, failure to provide vertical reservations was a violation of the Supreme Court directive for which contempt proceedings could be in order. This is even though the Transgender Persons (Protection of Rights) Act, 2019 does not provide for reservation for transgender persons in public appointments. To this extent, this case, following the case of Sumana Pramanik implicitly held that unlegislated Supreme Court directions continue to hold the status of law.

IV. THE STATUS OF THE JOB ADVERTISEMENT

The court concluded that the job advertisement was not invalid (despite its own equality analysis above). It directed the State to conduct a study on the status of transgender persons in Andhra Pradesh and to implement the reservation direction of the Supreme Court in three months.

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[1] Sumana Pramanik v. The Union of India and Ors. WPA 9187 of 2020 (Kolkata HC).

[2] W.P. No. 8511 of 2020 (Kar HC). See Karnataka Civil Services (General Recruitment) Amendment Rules, 2021. A similar prayer had been made in Swapna v Tamil Nadu and the High Court had directed the government to consider this option but no further progress seems to have been made: W.P. No. 31091 of 2013 (Madras HC). See https://perma.cc/2NYA-ZN8Z