"State Fully Empowered To Draw Its Own Policy": MAT Frowns At Maha Govt For Resisting Transgender Entry In Police Department

The Maharashtra Administrative Tribunal on Friday frowned at the State Government's resistance to add the option of "other gender" to the application form for enrolment of transgenders in the state police department. Even as the Maharashtra Government cited administrative difficulties and the need for a policy from the Central Government first, MAT Chairperson Justice Mridula Bhatkar was of the opinion that the State was "fully empowered to draw its own policy and take decisions in such matters." The chairperson noted steps taken by the Governments of Bihar, Karnataka and Tamil Nadu for the inclusion of transgenders in their respective police force and other government departments. The tribunal was seized with an application by 23-yr-old Arya Pujari seeking an opportunity to apply for the post of constable in the "other gender" category of the police force. In August, Chairperson Bhatkar had granted the Home Department six months to take a policy decision on the issue. On November 14, the MAT directed at least one post to be reserved for transgender persons in the selection process of constables this year. Subsequently, it directed the State to add the option of "other gender" in all online application forms and fix the criteria for physical standards and tests for transgender candidates. Pujari's advocate informed the tribunal on Friday that the State was yet to implement any of the orders. State's lawyer Swati Manchekar submitted that the home department intended to challenge the order owing to administrative difficulties. She also claimed that the SC's order in the ongoing Shanavi Ponnuswamy's case and the National Legal Services Authority (NALSA) required the Centre to take a policy decision first. "…till today neither the order of this Tribunal has been complied with nor it is challenged before the Hon'ble High Court. Thus, the order of the Tribunal is frustrated," Justice Bhatkar noted at the outset. She recorded the petitioner's submissions who pointed out an officer memorandum from the Central Government way back in 2020 directing all Government Ministries to modify recruitment rules for inclusion of transgenders to be in conformity with the provisions of The Transgender Persons (Protection of Rights) Act, 2019. Justice Bhatkar acknowledged the State's right to appeal but also reproduced sections of the NALSA judgement in which directions were given independently to the Central Government as well as the State Government. Regarding Shanavi Ponnuswamy's case, the tribunal observed that the Civil Aviation Ministry was the respondent in that case, therefore directions were issued accordingly. Moreover, 'Police' is a subject in the State List of the Constitution of India, and thus, the State Government is fully empowered to draw its own policy and take decisions in such matters. It was pointed out that Bihar had modified its recruitment rules to include transgenders. In 2021 Karnataka modified its rules to not only allow transgenders to participate in the process of recruitment in the Police Department, but they were also provided reservation in all the services of the State of Karnataka. The Tamil Nadu Government in its recent advertisements created separate physical tests for transgender men and transgender women. Accordingly, Chairperson Bhatkar extended the date of acceptance of transgenders application form to December 8 and adjourned the matter to December 23, 2022. Click Here To Read Order

"State Fully Empowered To Draw Its Own Policy": MAT Frowns At Maha Govt For Resisting Transgender Entry In Police Department

Sharmeen Hakim

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