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Informist, Tuesday, Jan. 14, 2025

 

NEW DELHI – The Kerala High Court has ordered the state government to implement measures to provide reservations for transgenders in education and public employment within six months. 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 Supreme Court existing, the judicial role in enforcing such rights becomes imperative, said the bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar.

 

"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," said the bench in an order in November, which was made available on Tuesday. The high court noted the apex court ruling in 2014 that had directed the Centre and state governments to take steps to treat transgenders as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission to educational institutions and for public appointments.

 

"In the light of the declaration of law, effectuating measures to protect their rights cannot be said to be a matter that completely falls within the domain of the executive," said the court. The law declared by the apex court is essential to ensure that transgenders are equally treated along with other gender groups, and to take proactive measures for affirmative action, the court added.

 

The bench said that innate human differences are a challenge to human civilisation. "We must be alive to acknowledge that the different groups face structural and societal disadvantages that prevent them from competing on equal footing," said the bench. It is the mandate of the law that such barriers are dismantled to ensure equal opportunities, the bench added. "If there is a difference existing due to biological reasons or any other reasons like ethnicity, social class, etc., the State is bound to address such differences to bridge the gap and allow the participation of disadvantaged groups along with others," said the court.

 

The high court noted that parliament had understood the issues faced by the transgenders after the apex court's 2014 ruling and accordingly enacted The Transgender Persons (Protection of Rights) Act, 2019. The government of Kerala had also framed rules in accordance with the above enactment in the year 2020 to effectuate the objectives and goals of the statutory provisions, said the court. However, in 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, said the high court.

 

Education is a fundamental human right, said the court, adding "Our Constitution provides equal opportunity as a part of the fundamental rights". The high court was hearing petitions filed by transgenders seeking a direction to Kerala government to provide them reservation in education and public employment. In none of the public employment notifications by the state government, a reservation is made for transgenders, said the court. "The transgenders are marginalised. Their inclusion in education and public employment is imperative for development. Their voices are not heard in public employment. They also need to move forward," said the court.  End 

 

Reported by Surya Tripathi

Edited by Deepshikha Bhardwaj

 

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