In this paper, I’ll emphasize the fact that how imperative it is to devise a National Level Reservation Policy by the Union government for the transgender community. It will not only ensure an optimum utilisation yet in addition to it an adequately uniformed implementation along the lines laid out in the NALSA judgment.
The transgender community was legally recognised as the third gender in 2014 as a result of the judgment of National Legal Services Authority v. Union of India was passed. Besides providing them with an identity, it also put in place the fundamental rights to ensure their freedom and dignity as much as enjoyed by the binary of ‘male’ and ‘female.’ Apart from acknowledging their presence, the court has outlined the repression they had endured in the past and added a variety of provisions that will continue to build up the culture and thereby ease their acceptance in the society. Reservation is one such vehicle of upliftment of their growth.
The NALSA judgment emphasised the transgender community being economically and socially backward and thereof, providing them with reservation in educational and public institutions under the same. This was just the beginning, followed by the national commission on backward classes recommending a reservation even for the privileged class identifying them under the transgender community. They should be provided with reservations under the 27% quota available to OBCs. Despite having a provision in the 2014 private members bill, the same had no central policy drafted by the union government. Not just this, but it was also excluded from the Transgender Rights Bill of 2019. Nonetheless, a few states did make provisions for providing the transgender community with reservation in states like Kerala, but there were issues in the legislative drafting and the implementation of the provisions, and because of these issues, there has not been an effective change in the position of the transgender community in the country.
PROBLEMS WITH STATE-LEVEL RESERVATION
The major problems with state-level reservations can be better understood by examining various states who implemented this in the first place and the shortcomings faced by them as a result.
One such state is Karnataka; despite a mandatory reservation, there is a dearth of takers at the higher education level, thereby failing the entire arrangement. Several loopholes, such as lack of prior education prerequisite to qualify for these courses. Another is the members dropping out at earlier stages due to lack of acceptance and financial means, thus being unable to take advantage of such reservations.
Similarly, In 2018, Kerala introduced a policy that allotted two seats in all states and affiliated for Arts and science courses at both graduate and post-graduate levels for the transgender community. However, this policy has been criticised on multiple grounds, with one of them being that no medico-legal guidelines have been laid down for the enrolment of such individuals. No clear basis has been established for the classification of such individuals as ‘transgenders’ and the procedure for their admission as well. Further, the government has failed to provide a contingency plan in case more than two transgenders wish to avail themselves of this facility.
Another problem has been highlighted in Tamil Nadu, wherein the government has sought to provide reservAtions under the Most Backward Class (MBC) category. The proportion of people applying for the seats against the available seats is where the issue arises. So, when we include another community with as many as 2 million people, the number of seats reserved might fall short of the needs of all those under this category when it comes to public and educational institutions.
Thus, the very purpose of these reservations will be defeating when several people who are included in this category because of their class may miss out on opportunities that were set aside for them. Similar situations were observed in the states of Bihar and Chhatisgarh, where the transgender community was included in the OBC category.
Notwithstanding the efforts undertaken by the states to create an inclusive environment for the transgender, these reservation systems have given birth to a further divide within the community itself. The lack of a uniform reservation system across the country gives rise to resentment among the community in states lacking the same.
IMPLEMENTATION OF A NATIONAL LEVEL RESERVATION POLICY
Given the issues that are highlighted above, it can be deduced that the state reservation system is clearly riddled with faults and hence, bringing in the picture a need for a national-level reservation policy. A national-level policy or central legislation will not just benefit by establishing uniformity and equal opportunities for all under this community along with accountability.
Currently, transgenders in some states can avail of reservations while others are still struggling to be recognized. Furthermore, the amount of reservations that are available in the states that offer reservations varies considerably. Allowing a national-level system to be set up would allow uniformity in the amount of reservation the transgender community is entitled to receive across the country. Also, it is significantly harder to hold each state government culpable for the lack of reservation policy implemented. Raising concerns against the union government instead of each state government would expedite and simplify the process of implementing reservations throughout the country and thus, establish easier accountability. Central legislation will also bind both the Central and State Governments to adopt policy measures oriented towards ensuring that the community benefits in a sustainable manner over the long term.
IDENTIFICATION OF BENEFICIARIES
Now, while implementing a national-level reservation policy for the transgender community, the first thing that needs to be addressed is the identification of the beneficiaries while upholding the right of self-determination at the same time. The statute should discard physical and biological examinations, which would encroach on the dignity and privacy of a transgender person. This could be done in the same procedure for name change in Aadhar Card and Passport. There should be an option to choose between three genders- Male, Female and Non-Binary and the person getting the gender changed should be asked to submit an affidavit, place an advertisement in a local and a national newspaper as well provide an attestation that it is not being done for fraudulent purposes and misuse of the benefits being provided to the transgender community. Following this procedure would normalise the process of gender change and will preserve the right to self-identification.
TYPE AND AMOUNT OF RESERVATION TO BE INTRODUCED
The reservation system within India forms a grid-like structure of verticals and horizontals. Before determining which type of reservation is to be introduced, it is critical to distinguish between vertical and horizontal reservations. The social reservations which are in favour of the SCs, STs, and OBCs under Article 16(4), equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, is known as vertical reservations. On the other hand, the reservations which are implemented for women and people with disabilities under Articles 15(3), nothing in this article shall prevent the State from making any special provision for women and children, and 16(1), there shall be equality of opportunity for all citizens in matters of employment under the state, 10 are special reservations known as horizontal reservations. We recommend that horizontal reservations be implemented for transgender and intersex persons.
Transgender and intersex persons, like women and the disabled, are capable of failing under any vertical category. There may very well exist a transgender and SC person. By establishing a horizontal reservation, there would be no presumption of homogeneity within the community. Equal representation would be provided to give a vertical reservation; they would have to give up their caste identities in order to place for this reservation. There are two types of horizontal reservation- compartmentalised and overall reservation. In the latter case, the reservation would be provided to a fixed number of seats for the transgender person under each vertical. In the former case, the reservation would be available for a candidate over all the verticals. Thus, a compartmentalised reservation would ensure that the intersectional discrimination faced by each group is addressed in the reservation quota. It is critical that a horizontal reservation is implemented for transgender and intersex persons because it ensures recognition of both their gender and caste
There are no outlined ways by which reservation percentages are to be decided in the NALSA judgment and other such case law. We, therefore, recommend that there be an established reservation percentage that is uniform across the country. Having a uniform reservation percentage would leave no room for biases from state governments who may not be in favour of such a reservation. As stated in an expert report, ‘There is need for statutory reservation in education, elections and employment both in the public and private sectors. We propose that this statutory reservation is a uniform 2% across the nation. This number was brought out in another bill that was introduced in the Rajya Sabha in 2014, where research proved that 2% reservation would be sufficient. State governments with their varying agendas pose a risk to the Trans Community. Establishing this uniform percentage across the nation would ensure good implementation and leave nothing in the hands of the state governments to tamper with.
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