Constitutional prospects for providing reservations for transgender persons in India

Abstract

I am interested in exploring constitutional prospects for providing reservations for transgender persons in India. This issue is important because it has been more than a decade since the Supreme Court of India in the landmark case of National Legal Services Authority v. Union of India (2014) recognized the historical marginalization of the transgender community and directed the Governments to extend reservation to transgender persons in cases of admission in educational institutions and for public appointments. Since then, the transgender community has been demanding that reservation policy should be extended to the community ensuring their adequate representation in education and public services. However, except two states, the Central Government and most of the State Governments are yet to formulate reservation policy in this matter. The states which have enacted reservation policy for transgender persons have adopted different modalities for reservation implementation. The specific focus of my paper is to evaluate various state interventions and modalities of reservation in this regard in accordance with social realities shaped by heteronormativity and Brahmanical patriarchy, along with evolving substantive equality and reservation policy jurisprudence. In my paper, I argue by analysing various state interventions that the modality adopted by the Karnataka Government to implement modality of 1% compartmentalized horizontal reservation policy for transgender persons is a more suitable policy framework. However, the reservation in educational institutions must also be provided, which Karnataka does not take into consideration. I argue this by using a mix method of doctrinal legal research under which I will analyse primary sources such as constitutional provisions, relevant legislations, judicial pronouncements, and alongside reviewing socio-legal studies and theorization developed on relevant issues as a secondary source. The structure of my paper is as follows: In the first Chapter, I will be introducing the topic, contextualising the research inquiry and highlighting the significance of the study. Along with this, I will outline the methods and scope of my research inquiry. In Chapter II, I will provide a theoretical framework on understanding the social realities and marginalization faced by the transgender community in society. In Chapter III, I will explore the Court's engagement with the socio-legal issues of transgender community. I will discuss the development of queer jurisprudence by the courts through this engagement with social realities of transgender community leading to acknowledgement of their backwardness, providing legal recognition and directing state governments to formulate reservation policy. In Chapter IV, I will provide a brief overview of the state policies enacted to provide affirmative action, specifically reservations for transgender persons. In Chapter V, I will critically analyse these state interventions. I will do thy by using theoretical frameworks of heteronormativity and Brahminical patriarchy on one hand, and compatibility of these state interventions with reservation policy jurisprudence developed by the Courts. Finally in the last Chapter, I will summarize the primary arguments and conclude by arguing for immediate implementation of robust reservation policy for transgender persons in educational institutions and public employment keeping in accordance with the social realities of the community and the directives issued by the Supreme. Keywords: Transgender Persons, Brahminical Patriarchy, Heteronormativity, Affirmative Action, Reservation Policy, Queer Jurisprudence,