'Abdicating Constitutional Duty': Rajasthan High Court Criticises State Notification Which Included Transgender Persons In OBC Category

The Rajasthan High Court, on Monday (30th March), criticised a notification issued by the State of Rajasthan, by which it ordered the inclusion of transgender persons in the Other Backwards Classes (OBC) category.

The bench of Justice Arun Monga and Justice Yogendra Kumar Purohit delivered the verdict. 

The court highlighted that the notification, instead of advancing the rights of the persons, has become an empty ritual without giving any proper benefit to the persons. The court cited an example where a transgender person born into an SC/ST/SEBC community would end up losing out on a reservation, since the impugned notification treated all transgender persons as belonging to the OBC category.

“The State of Rajasthan was under a clear constitutional obligation to translate the mandate of the Supreme Court into tangible policy by carving out a distinct and effective reservation framework for transgender persons. That obligation has been conspicuously abdicated. The impugned circular, far from advancing rights, reduces a binding constitutional directive to an empty ritual,” the court said.

The court was hearing a petition filed by Ganga Kumari, a transgender person seeking to quash a notification issued by the State Government on January 12, 2023 by which the State declared transgender persons as “Other Backward Class” without proving any reservation as separate category. The petitioner also sought horizontal reservation for the transgender persons as per the mandate of the Supreme Court in the NALSA judgment.

The petitioner argued that the notification was discriminatory and violative of the fundamental rights as it simply placed the transgender persons within the OBC category without providing searate horizontal reservation. It was argued that the NALSA judgment had recognised the transgender persons as a third gender and they could not be treated as a caste based group such as socially and educationally backward community (SEBC).

The petitioner argued that transgender persons require distinct and exclusive form of reservation rather than being absorbed into already reserved category. It was thus argued that the notification only created administrative confusion and was not in line with the mandate of the Supreme Court in NALSA judgment.

The State, on the other hand, argued that the petitioner had failed to prove any data to show how horizontal reservation would actually help the transgender persons and such mere assertion cannot justify judicial intervention in policy matters.

Listing out the measures taken by the State for the welfare of members from the community, the State argued that it had extended multiple welfare scheme and skill development programmes and any allegation that the transgender persons were denied opportunity was incorrect. The State also questioned the maintainability of the plea, arguing that a contempt petition in a similar issue was already closed and another similar plea was pending before the Supreme Court.

The court noted that in both the previous plea and the one pending in the Supreme Court, the issues in the present plea were not dealt and thus rejected the State's argument of maintainability of the plea.

The court noted that the Supreme Court, in the NALSA judgment had recognised that transgender persons were vulnerable and marginalised section of the society facing systematic discrimination and had directed the state government to take action to safeguard and enforce their rights. The court noted that the Supreme Court's directions were two fold - To treat transgender persons as an educationally and socially backward class and to extend all kinds of reservations.

However, the court was also conscious that the creation of horizontal reservation was within the domain of policy formulation and beyond the permissible scope of judicial intervention under Article 226 of the Constitution.

Thus, considering the limited judicial intervention that was permitted in such matters, the court directed the State to form a committee to inquire and assess the extend of marginalisation that was being faced by the community and recommend workable framework to ameliorate such aggravated disadvantage. This committee is to comprise of senior functionaries preferably headed by the Principal Secretary, Department of Social Welfare and Empowerment, along with eminent social activists and representatives of the transgender community.

The court added that once the committee makes its recommendation, the State could take an informed and appropriate policy decision for providing reservation.has directed the State Government to constitute a committee for conducting a detailed enquiry and make recommendations to address the aggravated marginalisation of the transgender community in the State, based on which further policy decisions could be taken.