Transgender Community Already Covered Under Existing Caste Based & EWS Reservation: Centre Tells Apex Court

The Ministry of Social Justice and Empowerment has filed an affidavit before the Apex Court informing the Court that Transgender Community is already covered under the existing reservation for SC, ST, Socially and Educationally Backward and Economically Weaker Sections. The affidavit has been filed in a contempt petition alleging non-compliance of the 2014 judgment of the Court in National Legal Services Authority v. Union of India.

The 2014 NLSA judgment is considered a landmark judgment on the rights of the Transgender community in India. "We direct the Centre and the State Governments to take steps to treat 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", the Bench of Justice K.S. Radhakrishnan and Justice A.K. Sikri had directed the case. 

A contempt petition has been filed by Kamlesh and others this year alleging non-compliance of the 2014 judgment. In the reply filed to the petition, the Centre has set out the steps taken by it to ameliorate the problems of the transgender community and to offer them a dignified living. The affidavit says at the outset that an application had been filed by Centre in 2014 seeking clarification/modification of the judgement. 

The affidavit says that the recommendations of an Expert Committee constituted by the ministry after the judgment were examined in line with the legal declaration made in the judgement and relevant recommendations were duly incorporated in the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.

The affidavit says that a National Portal for Transgender Persons has been launched by the Ministry in 2020, wherein the entire process from application submission to download of a transgender person's identity certificate and card is done without any physical interface with any office. "It is respectfully submitted that, upon due submission of the online application by the Applicant, the application automatically flows into the account of the concerned District Magistrate who is the Competent Authority for issuing the Certificate of Identity", the affidavit reads.

The Centre says in the affidavit that the portal has been visited more than 22+ lakh times and more than 12,000+ Transgender certificates and identity cards have been issued to transgender persons across the country. The Centre also says that Transgender Certificate of Identity and Identity Card issued through the Portal have been included in the list of supporting documents for obtaining Aadhaar Card.

The Centre says that a National Council for Transgender Persons has been constituted in August, 2020 to advise Government on policies, programmes, legislation and projects with respect to Transgender Persons. The affidavit says that the Ministry has issued an advisory to all ministries/departments for appointing a complaint officer to deal with the complaints relating to violation of the provisions of the Transgender Person (Protection of Rights) Act, 2019.

"..Respondent has nominated a National Council for Transgender Persons member for a committee, constituted by NCERT, to develop training module entitled "Inclusion of Transgender Children in School Education: Concerns and Roadmap", the affidavit states. The affidavit says that the population of 'Other' category in gender, as per Census 2011 is 4,87,803, out of which 78,811 (16.16%) belong to the Schedule Castes (SC) and 33,293 (6.83%) belong to the Scheduled Tribes (ST).

With respect to reservation, the affidavit says, "In this regard, it is respectfully submitted that the benefits of any of the reservation including the above 4 reservations can be availed by the marginalized and eligible population of the country including transgender persons".

The affidavit also says, "In this regard, it is respectfully submitted that Transgender belonging to SC/ST /SEBC communities are already entitled to reservations earmarked for these communities. Further, in the case of SEBC reservation, children of parents with income of more than Rs.8 lakhs per annum are deemed to fall in the Creamy Layer as per the decision of this Honourable court in the Indira Sawhney case (Writ Petition (Civil) No. 930 of 1990). No such restrictions are there under the SC and ST reservation schemes".

With respect to EWS reservation, the Centre says, "As such any transgender outside the SC/ST /SEBC communities with family income Rs.8 lakhs is automatically included in the EWS category. It is respectfully submitted that the entire marginalized and eligible population of the country (including transgenders) is at present covered under any one of the above 4 categories".

Cause Title: Mx Kamlesh & Ors. v. Niten Chandra & Ors. (Contempt Petition (C) 952 of 2023)