In the Allahabad High Court’s order quashing OBC reservation in urban local bodies’ elections, a crucial observation was lost in the fine print. While the two-judge Bench ordered setting up a commission to determine the backwardness of OBCs and fulfil the Supreme Court’s triple test criterion, what was missed by many was the mandate on page 87 ordering the commission to consider “the claim of transgenders for their inclusion amongst Backward Class of citizens”.
Including transgenders in the OBC quota can potentially unsettle the idea of social justice and affirmative action as enshrined in the Preamble and various articles of the Constitution. It would also be a travesty of the Second Backward Classes Commission’s report constituted under Article 340 of the Constitution.
There can be no contrarian view that the transgender community faces discrimination. They are often ridiculed and attacked physically over their identities. Still, there are two reasons their inclusion in the OBC list will be morally and legally wrong. A solution that could take care of the interests of the OBCs and transgenders lies elsewhere, not in clubbing the two.
First, the Allahabad High Court should not have ventured into this territory. There is no law or court order that has proposed including transgenders in the OBC list for reservation in local body elections. The high court is trying to enter the arena of law-making, which should remain the domain of the legislature.
The Allahabad High Court cited the Supreme Court’s judgment in the National Legal Services Authority vs. Union of India to suggest states to use their wisdom in the matter of including transgenders in the OBC list. But it’s a wrong reading of the 2014 judgment, which refers only to “reservation in cases of admission in educational institutions and for public appointments”. The local bodies’ election was nowhere mentioned in the judgment, which became the basis for the high court’s order.
Also read: Where are the archives of our Dalit Trans foremothers and forefathers?
The social difference and intersectionality
Second, the 2014 judgment of the Supreme Court in itself is hugely problematic. It’s true that there is a much-needed focus on transgender rights now but we cannot blame the Constitution makers for not including the community in the list of sections pertaining to disadvantaged groups (Articles 340, 341, 342 for socially and educationally backward classes, SCs and STs). The three Articles, though, do make it clear that the Constitution makers envisaged affirmative action policies only for the historically disadvantaged backward groups.
Reservation policies have two core criteria — backwardness and underrepresentation. Article 16(4) clearly states that the State may make provisions for “the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. If we read this article with Article 340, the transgender community cannot be bracketed in the backward class. Article 340 clearly talks about “socially and educationally backward classes” and transgenders are not a social class in Indian context.
The Mandal Commission Report is quite clear on this count. “The lower castes are backward not only socially, but also politically and economically. On the other hand, the advanced castes are advanced in all these aspect,” it said. In the nine-judge bench judgment in Indra Sawhney Case, Justice S Ratnavel Pandian said something similar: “Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are inter-twined with low occupations in the Indian society. A caste can be and quite often is a social class in India.”
A Brahmin transgender cannot be placed in the same social pedestal as a transgender from the Scheduled Caste or OBC communities. A Brahmin or a Thakur or a Vaishya transgender will have social privileges, and more cultural and social capital than the transgenders of SC or OBC communities. No wonder the Hindu Akhadas appointed Laxmi Narayan Tripathi as the first transgender Acharya Mahamandaleshwar when they decided to take a seemingly progressive stance in terms of gender. There have been instances of dominant caste groups harassing and physically harming Dalit transgender persons and SC/ST Act have been invoked to safeguard their rights. There are reports, empirical studies and accounts of lived experiences to suggest that there are caste barriers within transgender community.
Caste rights activist Ritesh Jyoti argues that “SC, ST, OBC (majority) transgender… are facing double oppression of caste & gender in this Brahminical Society”. Trans rights activist Grace Banu also opposed the move last year when the Union government moved a cabinet note to include transgenders in the OBC list.
Putting all transgender persons under OBC category is unconstitutional, unethical & against social justice #horizontalreservationfortrans pic.twitter.com/8dJgMrnwPS
— GRACE BANU (@thirunangai) December 7, 2021
Also read: ‘She’s not always a woman to me’: Court cases on ‘gender-deception’ highlight true cost of stigma
Nobody will disagree that transgender rights should be safeguarded. The Supreme Court has quite rightly invoked “Theory of Justice”, written by John Rawls, to harness the idea that any democratic institution can be said to be fair only if it follows the concept of “justice as fairness”.
“Justice as Fairness [….] tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretations. Justice as fairness is a political conception in part because it starts from within a certain political tradition. Based on this preliminary understanding of just institutions in a democratic society, Rawls aims at a set of universalistic rules with the help of which the justice of present formal and informal institutions can be assessed. The ensuing conception of justice is called ‘justice as fairness’,” the court said in its 2014 judgment. To further augment the idea, the court cited the concept of “distributive justice” as envisaged by Noble Laureate Prof Amartya Sen. Quite eloquent and impressive!
But the Supreme Court erred in providing the solution. It directed the government to treat transgenders as socially and educationally backward classes of citizens, which they are not. Social backwardness in the Indian context is intertwined with social structures, especially caste. Ignoring caste while framing affirmative action policies will be unconstitutional, unethical and against the idea of social justice. It may harm the interests of the OBC. Pitching one disadvantaged group against another is detrimental to the whole idea of social justice.
Now, the solution. Grace Banu has suggested a solution that takes care of the needs of transgenders without harming the interests of the OBCs. She and other trans rights activists suggested that the Union government should evolve a mechanism to provide horizontal reservations for transgender persons within the SC/ST/OBC/Others categories.
This is something similar to the horizontal reservations being provided to the disabled category or in some of the cases to the ex-servicemen or even the women. “Such an approach will account for the intersectional nature of the discrimination and bias that transgender and intersex persons face, and ensure benefits to the most marginalised persons who are being oppressed both on account of their caste or tribal identity, and their gender identity,” Banu argues.
This framework will take care of the rights and interests of the transgender people in a true sense. Otherwise, transgender people of the SC, ST and OBCs may be sidelined.
Dilip Mandal is the former managing editor of India Today Hindi Magazine and has authored books on media and sociology. He tweets @Profdilipmandal.
Views are personal.
(Edited by Prashant)