On Wednesday, Karnataka became the first state in India to reserve jobs in public employment in favour of transgender persons. The state government informed the division bench of the Karnataka high court of Chief Justice Abhay Shreeniwas Oka and Suraj Govindaraj that it has amended the Karnataka Civil Services (General Recruitment) Rules, 1977 to provide for 1% horizontal reservation for transgenders.
A draft notification issued on May 13 proposed to amend Rule 9 for the purpose. The proposed amendment to Rule 9 Sub Rule (1D) was inserted to provide for 1% of vacancies to be filled in any service or post by the state government from among the transgender candidates in each category of general, Scheduled Castes, Scheduled Tribes and in each of the categories among the Other Backward Classes.
The state government informed the high court on Wednesday that it did not receive any objections to the draft notification in so far as the amendment to Rule 9 is concerned within the stipulated time. Subsequently, on July 6, it amended it inserted sub-rule (1D) to the Rules.
The new sub-rule reads as follows:
“Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, in all direct recruitment one percentage of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among Other Backward Classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among transgender candidates:
Provided that, every Appointing Authority shall provide a separate column of “Others” along with male gender and female gender in the application for recruitment to any category of Group-A, B, C or D posts for the convenience of transgender persons. The Recruitment Authority or the Appointing Authority shall not discriminate a transgender person while making selection of appointment to any category of post.
Provided further that, if sufficient number of eligible transgender persons are not available, to the extent of one per cent, the unfilled vacancies shall be filled by male or female candidates, as the case may be, belonging to the same category.
Explanation: For the purpose of this sub-rule a Transgender Person shall have the same meaning as defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019)”.
High court’s intervention
The state government’s amendment of its recruitment rules was a result of a legal challenge to its recruitment of police constables on the ground that it excluded a separate category for transgender persons on par with men and women. The state government sought to fill up 2,672 posts – including 2,420 vacancies to the post of Special Reserve Constable Force and 252 Bandsmen posts. The notification calling for filling up of these posts mentioned age, weight and other specifications pertaining to only men and women, in total disregard of transgender persons.
In Sangama v State of Karnataka, the charitable trust Jeeva filed an interlocutory application (IA) challenging the exclusion. It also sought a direction to the state government to frame a scheme for reservation for the transgender community in the recruitment to the post of Special Reserve Constable Force as well as Bandsmen. Jeeva’s contribution towards creating a platform for sexual minorities to participate equally in society, build a sustainable livelihood and attain quality of life, self-esteem, and dignity for the transgender community in Bengaluru and other parts of Karnataka is commendable.
Initially, the state government proposed to consider reservation for transgender persons under one of the OBC categories, after obtaining the opinion of the Karnataka State Commission for Backward Classes. Jeeva, however, sought reservation for transgender persons in a horizontal manner, rather than under the OBC category on the ground that they faced discrimination because of their gender. Jeeva maintained that reservation for transgender persons should be similar to the reservation for women and persons with disabilities, which can then be ensured within the categories of vertical reservation for SCs, STs and the OBCs.
Jeeva told the high court that if the state government’s proposal to include transgender persons within the OBC category was accepted, it would not allow similar persons among SC and ST communities to seek the benefit of reservation. On the contrary, if a transgender person is already availing the benefit of reservation under the OBC category, it would not be possible to avail any additional benefit of reservation on the ground of gender, it was pointed out. Besides, competition within the OBCs would render the chances of transgender persons among them from getting posts very slim, Jeeva argued before the high court.
Jeeva’s application drew inspiration from the Supreme Court’s judgment in NALSA v Union of India (2014), which is considered a watershed moment for transgender rights. In this case, the court had held that the right to life under Article 21 of the constitution includes the right to self-determine one’s gender identity and that no one should be discriminated on the basis of their gender identity which can be male, female or transgender. The Supreme Court directed the Centre and the state governments to integrate the transgender community into society by treating them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
Jeeva also cited the Supreme Court’s judgment in Indra Sawhney v Union of India (1992), in which the court had held that reservations may be either vertical or horizontal. Vertical reservations are social reservations given under Article 16(4) in favour of SCs, STs and OBCs, while horizontal reservations are special reservations, which cut across vertical reservations. Such horizontal reservations, for instance, are provided to persons with disabilities under Article 16(1). Under horizontal reservations, various groups such as ex-army personnel, displaced persons, women under Article 15(3) have also been benefitted. Horizontal reservations are interlocking and cut across vertical reservations whereby reservations under a horizontal category are provided within an existing category of vertical reservations.
Because horizontal reservations cut across vertical reservations, it allows for reservations not just on the basis of one identity, that is, gender, but enables reservations to be provided where a person has more than one significant identity such as transgender status and ST, ST or OBC.
In Tamil Nadu, the state government included transgender persons within the backward classes category known as Most Backward Classes (MBC) which is equivalent to the OBC category in Karnataka. However, the Madras high court has, in several judgments, directed that instead of including transgender persons within the MBC, post-based reservation (or horizontal reservation) in each vertical category be provided instead for them.
Jeeva submitted before the high court that the Supreme Court has held that while Article 16(4) is exhaustive on vertical reservations for the backward class of citizens, it is not exhaustive on the scope of reservations under the constitution. Article 16(1) which guarantees “equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” permits horizontal reservations for other classes of persons. Persons found eligible by the state for reservation under Article 16(1) would be placed against the relevant quota/category identified under Article 16(4) forming an intersectional grid.
The reservation of posts for transgender persons in public employment marks only a partial achievement for the campaign on their rights. Jeeva, in its application, sought directions to include all concessions and relaxations such as in age limits, cut-off marks, and physical requirements and examinations for transgender persons. In Tamil Nadu, the Madras high court has directed that all concessions and relaxations as provided to destitute widows and ex-servicemen be extended to transgender persons. “Only if all these relaxations are provided to transgender persons, will they be provided equal opportunity in public employment,” Jeeva told the high court.
Jeeva also sought reservation and concessions for transgender persons in public education, both at lower levels and higher education including university education. Reservation and concessions in housing schemes, including allotment of housing sites and allotment of agricultural land or allotment of land at concessional rates for housing, shelter, occupation, business or recreation centres, have also been sought in favour of transgender persons.
Jeeva’s IA has also emphasised reservations for transgender persons in poverty alleviation schemes and development programs. Reservation of seats in gram panchayats, urban local bodies including town municipalities, city municipal councils, and municipal corporations has been sought to ensure their full and equal representation and participation in society.