1. The Petition
This case followed the S. Sushma style of continuing mandamus issued by the court to monitor the progress on the NALSA directives, among other things. The cause of action was the denial of rations to certain portions of the transgender community during COVID. The petition, filed in the High Court of Patna in May 2020, prayed for 25 kgs. of rations for all members of the transgender community, monetary assistance for six months’ rent, a speedy grievance redressal system, and a one-stop facilitation centre. In this blog, I will summarise the proceedings under this petition.
2. Compliance Reports by Governments of India and Bihar
Once the court was possessed of the matter, it asked the government of Bihar and the government of India to file an affidavit indicating compliance with the NALSA directives. In reply, the government of India provided that a helpline had been established for the community. It was revealed that the helpline primarily received calls for psychological and financial assistance, which prompted the court to suggest to the government that the current financial assistance of Rs. 1500/- provided to the community may need need upward revision. Further hearings on the mandamus also resolved the ration distribution issue and by the end of 2020, the court was satisfied that the community was able to receive rations without ration cards, and that the establishment of a district level facilitation centre was in progress. The state of Bihar also provided an account of its compliance with the NALSA directives.
Noteworthy in this compliance report was Bihar’s assertion that it had complied by the direction to provide legal recognition of gender identity of transgender persons, in forms such as, male, female, or third gender. However, by classifying all transgender persons as third gender, the Bihar government considered itself in compliance with this directive. Further, the government had averred that the transgender community shall be treated as a backward class which would enable them to reservation in educational institutions and public appointments. The details of exactly how the reservation will be provided were not discussed in the judgment. However, the interim orders did resolve an issue connected with the appointment of transgender persons in Bihar police force. This was done through the creation of a special unit of transgender police personnel.
The judgment exhorted the governments to implement further welfare programmes for the transgender population. It drew on the Transgender Persons (Protection of Rights) Act, 2019, the Navtej Singh judgment, the NALSA judgment, and interestingly, the anti-discrimination protection in the International Convention of Civil and Political Rights, and the anti-discrimination and the adequate housing protections in the International Covenant on Economic, Social and Cultural Rights. With these observations, the case was dismissed.
3. Continuing Mandamus in Queer Cases
The issue of compliance with the NALSA directives has been reported previously in case law since NALSA. For example, in Swati Bidhan Baruah (May 2018), the Gauhati High Court was in receipt of a PIL which sought the compliance of the NALSA directives by the Assam Government. In this case, the High Court directed the committee (formed after the filing of the case to study transgender problems) to submit its recommendations to the government within 3 months of the order and the government to implement the recommendations within 6 months. With this, the PIL was dismissed. Jeeva M (April 2019) was another case in which the Karnataka High Court directed the state education department to comply with NALSA directives and to implement the requested name and gender changes in the school and pre-university records of the petitioner. Later in April 2021, the Calcutta High Court directed the administrators of the Joint CSR-UGC NET examinations to provide reservations for transgender persons in the furtherance of the NALSA direction to do so. However, it is noted that treating petitions seeking compliance as continuing mandamus petitions is unusual when it comes to queer cases. S. Sushma and the present case stand out in this regard.