Kerala HC Directs State To Provide Reservations To Transgender Persons In Educational Institutions And Public Employment Within 6 Months

The Kerala High Court has directed the State Government to provide reservations to transgender persons within six months in educational institutions and for public employment.In its order dated 28 November 2024, which was made available on the HC website only today, a division bench of Justices A.Muhamed Mustaque and P. Krishna Kumar said that in light of the Supreme Court's decision in National Legal Services Authority, the matter does not lie completely within the executive's domain. The Court also highlighted the necessity to pass a direction by noting “continued inaction by the Government”.“While ordinarily this Court may not interfere in the policy domain of the Government, in cases involving fundamental rights and a clear direction from the Apex Court existing, the judicial role in enforcing such rights become imperative. The continued inaction by the Government, despite clear legal and constitutional obligations, leaves this Court with little choice but to consider issuing appropriate directions to ensure compliance with the constitutional and legal mandate...In the light of the Apex Court judgment in National Legal Service Authority's case (supra), the Government cannot delay the implementation of their rights in providing reservations to them. In such circumstances, we are of the view that the Government shall implement measures to provide reservations to transgenders within six months from the date of receipt of a copy of this judgment.” The court passed the order while hearing a batch of petitions seeking directions to the Government of Kerala to provide reservations to transgender persons in education and public employment. The Court also reproduced the directions passed in the National Legal Services Authority's case, including:“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 High Court thus stated that this law declared by the Apex Court was essential to ensure that transgenders are equally treated and proactive measures are taken for affirmative action.“Innate human differences are a challenge to human civilization. We must be alive to acknowledge that the different groups face structural and societal disadvantages that prevent them from competing on equal footing.,” the Court noted before stressing the mandate of the law to ensure equal opportunities.Marking its significance, the Court noted how the above-mentioned directions led to the enactment of The Transgender Persons (Protection of Rights) Act, 2019, by the Parliament. The Court noted that subsequently, in 2020, the Kerala Government also framed rules following this enactment. However, there were no such statutory provisions or executive orders effectuating such reservation.“In effect, in the absence of any statutory provisions or executive orders providing for reservation of education in public employment, the agony faced by the transgenders continues and they are not in a position to compete with advantaged groups. Thereby, they have been denied equal opportunity in education and public employment,” it said.“Education is a fundamental human right. Our Constitution provides equal opportunity as a part of the fundamental rights. Unequals have different sets of backgrounds while competing and they would be denied equal opportunity if the circumstances leading to their inequality are not addressed. Equality is the basic feature of our Constitution,” it added. The Court added that the State was bound to address differences arising out of biological or any other reasons and to bridge the same. There was no reservation made for transgenders in any of the public employment notifications. It said that transgender persons are "marginalised and their inclusion in education and public employment is imperative for development".It also noted that the voices of transgender persons were being heard in public employment and they need to move forward. Thus, in view of the above circumstances the Court noted that the Government could not delay the reservations, and accordingly asked the State to implement the measures to provide reservation to transgender persons within 6 months. It thus disposed of the pleas. Case Name: KABEER C. v. STATE OF KERALA and others., Citation: 2025 LiveLaw (Ker) 30WP(C) NO. 29247 OF 2019Click Here To Read/Download Order

Kerala HC Directs State To Provide Reservations To Transgender Persons In Educational Institutions And Public Employment Within 6 Months

Gyanvi Khanna

Tags