22 Aug 2023 10:30 AM GMT
The Karnataka High Court on Tuesday by way of an interim order directed the National Law School of India University (NLSIU) to grant admission to a transgender person in the 3-year LLB course for the academic year 2023-24, if found eligible. Justice Ashok S Kinagi admitted the petition filed by the student, clarifying that the petitioner's admission is subject to the final outcome of the...
The Karnataka High Court on Tuesday by way of an interim order directed the National Law School of India University (NLSIU) to grant admission to a transgender person in the 3-year LLB course for the academic year 2023-24, if found eligible.
Justice Ashok S Kinagi admitted the petition filed by the student, clarifying that the petitioner's admission is subject to the final outcome of the writ petition.
“The respondents are constitutionally obligated to take positive steps to realise the rights of petitioner and other transgenders and the respondents have failed in their obligation.”
The petitioner had sought a direction to the respondents (State Government and the University) to implement the Karnataka State Policy on Transgenders, 2017 and provide reservations to transgender persons, including the petitioner, in the University. Further, it sought to quash the decision of the University denying admission to the petitioner, and a direction to the University to provide admission to the petitioner in the 3-year L.L.B. course from the 2023-24 academic year.
The University's opposition to the relief request centered on the absence of a quota for transgender individuals, asserting that its decision was aligned with practices in other similar educational institutions, including IITs and IIMs. It maintained that the existing reservation scheme for the 3-year LLB program adhered to these principles.
The scheme of reservation implemented by the Respondent University in the 3-year LLB programme is in line with this Plan, it said. The applicable reservation policy is as follows: 15% of seats are reserved for Scheduled Castes, 7.5% for Scheduled Tribes, 27% for OBCs and 10% for EWS. Of this, 5% is horizontally reserved for Persons with Disabilities, 30% for women, and 25% for Karnataka students.
The statement of objection filed by the University had stated that the direction of the Supreme Court in NALSA v. Union of India [(2014) 5 SCC 438] being to the Centre and State Governments, the present Petition is also premature inasmuch as there is no case to seek relief on the strength of the said Judgment against this Respondent until the Central Government and State Government take appropriate steps as per the said decision. “Thus, there is no basis to the Petitioner’s claim to be granted admission to the Respondent University, by virtue of being a transgender person,” it is said.
On hearing all the parties, the court highlighted the constitutional obligation of the respondents to take affirmative measures to uphold the rights of the petitioner and other transgender individuals.
“The respondents have violated the petitioner’s rights, against the discrimination on their gender, under Article 15 (1) of the Constitution of India, by denying them education on par with the other protected groups. Also violation of Article 21 of the Constitution of India, which fully protects the petitioners rights to live with dignity but also they are able to fully enjoy their rights, including the right to education. Further Article 38 of the Constitution of India mandates to secure social order and promote the welfare of the people which the respondents have failed to implement.”
The bench took into account the provisions of the Transgender Persons (Protection of Rights) Act, 2019, Sections 13 and 10 and Rule 10 of the Transgender Persons (Protection of Rights) Rules, 2020, and highlighted that government-recognized educational institutions are obligated to establish welfare programs for transgender individuals.
“It is obligatory on every education institution recognised by the government to formulate welfare schemes for transgender persons. Admittedly in the instant case, neither the state government nor the R3 and R4 (University) have formed welfare schemes for the transgender persons.”
Noting that the University has not provided any reservation to the transgender and further in the instant case the state government has no power to frame any legislation in terms of the University, in view of the law laid down by this court in Master Balachander Krishnan v. State of Karnataka and Others and Harsha Shivaram v. NLSIU (1998) wherein it was held that it is the prerogative of the University (Executive Council) to prescribe and implement reservation.
Highlighting the pivotal NALSA judgment that recognized transgender individuals as a socially and educationally backward class, the court remarked on the necessity of providing them reservation rights. It called on both the central and state governments to extend these rights accordingly.
“In the case of NALSA it is held that transgender persons have the right for reservation owing to the fact that they are socially, economically and educationally backward class with regard to reservation and directed the centre and state government to take the steps to treat them transgender persons as socially and educationally backward class of citizens."
The bench observed a stark contradiction between the University's lack of reservation for transgender individuals and the legal requirements, specifically pointing to the violation of the NALSA judgment and Section 13 of the Act.
“In the instant case the Executive council of R3/R4 (University) have not provide any reservation to the transgender persons and the action of R3 and R4 is in violation of judgment passed by the Apex court in the case of NALSA and Section 13 of the Act...The non-grant of reservation to the transgender person in admission test is patently violative of Article 14, 19, and 21 of the Constitution.”
In light of these considerations, the court determined that the petitioner's case warranted an interim order. Consequently, it directed the state government to submit its statement of objection within a four-week timeframe.
Case Title: Mugil Anbu Vasantha And State of Karnataka & Others
Click Here To Read/Download Order
Case NO: WP 14909/2023.