Context: 

The Maharashtra government is facing  difficulties in providing additional reservations to transgender persons in education and Public Employment.

Genesis of Reservation:

Affirmative Action:

• Reservation is a system of affirmative action in India that provides historically disadvantaged groups representation in education, employment, government schemes, scholarships and politics. 
• Based on provisions in the Indian Constitution, it allows the Union Government and the States and Union Territories of India to set reserved quotas or seats, for “socially and educationally backward citizens.”

Reservation in India:

• SC/ST Reservation: Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given 7.5% quota in jobs/higher educational institutions.
• OBC Reservation: Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). 
  • The quota for OBCs is 27% in government jobs and higher educational institutions.
• Economically Weaker Sections (EWS)Reservation: 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions. 
  • This was done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

Judiciary  Perspective on Transgender Reservation:

• NALSA v Union of India (2014): In this case, the Supreme Court recognizes transgender persons as socially and educationally backward.
  • It recognised transgender persons as a third gender and issued directions to protect their rights and dignity.
  • The judgement directed the Centre and the State governments to provide trans people “all kinds of reservation” in admissions to educational institutions and in employment. 
  • It does not, however, mention the nature of reservations – whether they are to be vertical or horizontal.

Understanding Vertical and Horizontal Reservations:

• In India, historically oppressed and disadvantaged communities have a right to affirmative action policies. 
• Reservation in education and employment can be divided into two broad categories, namely, vertical and horizontal.
  • Vertical reservations address social asymmetry and backwardness based on caste hierarchy. These include reservations for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC).
  • Horizontal reservations cut across vertical categories to provide affirmative action for disadvantaged groups.For example, disabled persons are guaranteed horizontal reservation in all the aforementioned vertical categories, general and reserved (vertical) alike, by the Central government.

Demand for Horizontal Reservation by Transgender Community:

• Transgender community seeks reservation to address marginalization and recognize their social identity.
• NALSA verdict is often seen as directing reservations for transgender individuals in the Other Backward Classes (OBC) category.
• No significant implementation progress has been made thus far.
• Concerns raised about the potential trade-off for Dalit, Bahujan, and Adivasi transgender individuals.

Progress on Transgender Reservations: The Central government has not provided clear guidelines on transgender reservations.

• 2015: Rights of Transgender Persons Bill (2015) was presented to the Rajya Sabha in line with the NALSA judgement. 
  • It had provisions for reservation for trans persons — in the public and private sector. 
  • After being passed in the Rajya Sabha, the Bill was rejected in the Lok Sabha. 
• 2016: The Transgender Persons (Protection of Rights) Bill, 2016 was introduced by the Centre. 
  • It had no provision for reservations.
  • Alternatively, Rights of Persons with Disabilities Act, 2016, ensures horizontal reservations for disabled individuals under the central government.
• In 2018: A parliamentary standing committee under the Ministry of Social Justice was set up. 
  • The committee,  in line with the NALSA judgement, recommended reservations for transgender persons.
• 2019: Transgender Persons (Protection of Rights) Act, 2019, did not include any mention of reservations –  vertical or horizontal.

State Initiatives for Transgender Reservations:

• In 2015, Tamil Nadu categorized transwomen under the Most Backward Classes (MBC) category.
• Karnataka became the first and only state to offer one per cent horizontal reservation to transgender persons in 2021.
• Madhya Pradesh includes transgender persons in the OBC category in 2023.

Challenges in Horizontal Reservation for Transgender People:

• Ambiguity in NALSA judgement: Since the NALSA  judgement called for trans people to be treated as ‘Socially and Educationally Backward Classes’, which ran the risk of clubbing them with OBCs. 
• Lack of Clarity and Implementation: The lack of clear guidelines and policies from the central government on transgender reservations hinders effective implementation.
  • Despite recognition by the courts, there is no specific legislation or framework outlining the nature and extent of reservations for transgender individuals.
• Trade-off with Caste and Tribal Identity: Transgender persons from Dalit, Bahujan, and Adivasi communities face a dilemma as they have to choose between availing reservation based on their caste or tribal identity or their gender identity.
  • This trade-off potentially limits their access to benefits and reinforces exclusion within marginalized communities.
• Limited Political Will: The Transgender Persons (Protection of Rights) Act, 2019, which does not mention reservations, reflects the lack of political will to prioritize horizontal reservations for transgender individuals.

Way Forward:

• Policy Reforms: Develop comprehensive policies that explicitly address the reservation needs of transgender individuals, considering their specific challenges and identities.
  • Engage transgender communities and organizations in the policy-making process to ensure their voices and perspectives are represented.
• Awareness and Sensitization: Conduct awareness campaigns and sensitization programs targeting government officials, policymakers, and society at large to foster understanding and empathy towards transgender individuals and their rights.
• Data Collection and Research: Conduct comprehensive research and data collection on the experiences and challenges faced by transgender individuals from Dalit, Bahujan, and Adivasi backgrounds to inform evidence-based policies and interventions.
• Representation and Advocacy: Encourage greater representation of transgender individuals in decision-making bodies, committees, and forums at both the state and national levels.

News Source: The Indian Express

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