4 Sep 2023 12:01 PM GMT
The Karnataka High Court on Monday disposed of an appeal filed by the National Law School of India University (NLSIU) challenging a single bench order directing it to grant provisional admission to a transgender person in the 3-year LLB course for the academic year 2023-24, if found eligible.A division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit said,“As the...
The Karnataka High Court on Monday disposed of an appeal filed by the National Law School of India University (NLSIU) challenging a single bench order directing it to grant provisional admission to a transgender person in the 3-year LLB course for the academic year 2023-24, if found eligible.
A division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit said,
“As the issue involved assumes importance being an issue relating to the admission qua reservation to transgender persons, in our opinion it will be in the interest of justice and in the fitness of things that the parties are relegated to single judge to make a request to single judge for hearing petition expeditiously for final disposal.”
It added, “In case such a request is made to the single judge by the parties, the single judge to consider the request and by fixing a date, hear the parties for final disposal of the writ petitioner as expeditiously as possible. The parties are permitted to approach the single judge within two weeks with the request. If the request is made the single judge to consider the same and fix the matter for hearing/disposal.”
Senior Advocate Uday Holla appearing for the appellant-University sought setting aside of the interim order and submitted that the single judge's interim order was as good as granting a final relief to the petitioner-candidate.
It was argued that the relevant rules do not provide any such reservation for the transgender persons and in any case, the petitioner had approached the court after the cut of date for admission.
Advocate Clifton D Rozario appearing for the petitioner submitted that in view of judgement of Apex court, academic institutes were supposed to make provisions either by amending rules or substituting rules to provide reservation for transgender persons.
The division bench said, “Though these are preliminary submissions we have recorded, the fact of the matter remains that direction to admit petitioner by way of interim order, is subject to final decision or outcome in writ petition. Admittedly though a detailed order is passed by the single judge, it is yet to hear the parties at length for final hearing/disposal of writ petition.”
Accordingly it disposed of the appeal saying, “We make it clear that this court has not made any observation or recorded any opinion on the merits of the matter.”
The petitioner has sought a direction to the 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.
The University's opposition centeres 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 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.
On hearing all the parties, the single bench had highlighted the constitutional obligation of the respondents to take affirmative measures to uphold the rights of the petitioner and other transgender individuals.
The single 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,” it had said.
Single bench had noted that the University has not provided any reservation to the transgender persons 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.
Thus, highlighting the pivotal NALSA judgment that recognized transgender individuals as a socially and educationally backward class, the Court had remarked on the necessity of providing them reservation rights. It called on both the central and state governments to extend these rights accordingly.
In light of these considerations, the single judge had determined that the petitioner's case warranted an interim order.
Case Title: NATIONAL LAW SCHOOL OF INDIA UNIVERSITY AND MUGIL ANBU VASANTHA & Others
Case No: WA 1025/2023
Citation: 2023 LiveLaw (Kar) 344
Date of Order: 04-09-2023
Appearance: Senior Advocate Uday Holla for Advocate ADITYA NARAYAN for Appellant.
Advocate Clifton D Rozario for R1.
Additional Advocate General Vikram Huilgol for R2/R3.