S. Tamilselvi v The Secretary to the Govt, Health and Family Welfare Department and Ors (WP No 26506/2022 and Ors- Madras High Court)

This case is significant not only for transgender persons’ reservation rights post the 2019 enactment but also for settling an important constitutional question: what is the status of un-legislated Supreme Court directions?

The petitioner, a transwoman, applied for the Post-Basic (B.Sc) Nursing and Diploma in Psychiatry Nursing. She applied in the Most Backward Class (MBC), a reservation category as she belonged to this class. However, while drawing up the final merit list she was listed in the female category and not within the MBC. The argument from the government was that there was no reservation available for transgender persons and the petitioner had to ranked either in the male or the female category. This is a familiar argument from State bodies which come to the court with unclean hands and attempt to take advantage of the same—they plead that a transgender candidate could not be considered because there was no transgender reservation (in clear violation of Supreme Court directions). In this case, one sees some application of mind by the State for the status quo, even if the results produced by this deliberation were not optimal. The State offered that its reason for not introducing any reservation for transgender persons was the small number of the population and the risk of a seat being wasted should no one apply. At the same time, their reason for considering the petitioner in the female category was her gender affirmation surgery certificate which certified her as a woman.

While in cases preceding the Transgender Persons (Protection of Rights) Act, 2019, for example, in the Prithika Yashni case, the Madras High Court did require that transgender reservation be introduced in police recruitment, the relevant State body in the case, the status of the reservation directive post the Act was unclear. There were two reasons for this: first, the 2019 Act had not provided for reservations in public education and employment, contrary to the Supreme Court’s directions; and secondly, the legal status of un-enacted directions was unknown as it had been Parliamentary practice to legislate in line with the directions of the highest court. Retired Supreme Court justice, Ruma Pal, had distilled this trend in these words:

The directives, when given, have rarely been overturned by legislation to the contrary. On the other hand, judicial directions have often been incorporated in subsequent statutes

Ruma Pal, ‘Separation of Powers’ in (Sujith Choudhary et al eds) THE OXFORD HANDBOOK OF INDIAN CONSTITUTIONAL LAW (OUP 2016) 265.

The Indian Supreme Court, via direction 3 in the NALSA (page 128) case had 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. 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. The Transgender Persons (Protection of Rights) Act, 2019, did not legislate with respect to reservation for the transgender population. Non-legislation is not the same as replacement, conceptually speaking, and therefore, I had previously suggested that the reservation direction continued to retain the force of law in India. However, this legal position remained unconfirmed as no precedent existed on the issue.

In two previous cases post the enactment of the 2020 Act, Indian High Courts have had the opportunity to settle the legal question of un-enacted Supreme Court directions, Sumana Pramanik and Matman Gangabhavani, and in both cases, the court failed to cease it. While in Sumana Pramanika, the court decided the issue (involving transgender reservation) based on an equality analysis, in Matman Gangabhavani, the court went on to say that contempt proceedings could be brought for failing to implement NALSA directives, implicitly, but not openly stating that un-legislated directions continue to hold the force of law. However, the full force of this finding failed to be realized in the case because of the technical rulings of the case. The present case, by contrast, provided a clear sighting of the principle that un-legislated directions retain the status of law. The court in this case had no hesitation in holding that the State’s failure to provide reservations for transgender persons in public employment was ‘against the judgment given in the Supreme Court’ and directed the State to introduce such a category. Therefore, for all practical purposes the court confirmed the status of direction 3 as law even though the 2019 Act had not legislated on reservation. Silence signified continuation. This is a monumental case not only for transgender reservation but also for constitutional law.

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