Willing To Provide Reservation To Transgender Persons Under OBC Category: Karnataka Government In Affidavit Before Karnataka HC [READ AFFIDAVIT]

The Karnataka Government made a promising statement in the favor of the transgender community and stated that they are willing to consider the community under one of the categories of Other Backward Classes (OBC) for recruitment, after obtaining the opinion of the Karnataka State Commission for Backward Classes.

The affidavit submitted by Dr. Rajneesh Goel, Additional Chief Secretary before the Karnataka High Court stated that “According to the provisions of the Karnataka State Commission for backward Classes Act, the Commission for Backward Classes was constituted and one of the major functions of the Commission was to examine the request for inclusion of complaints of over inclusion or under inclusion of any backward class in such list and tender such advice to the state government as it deems appropriate.”

As the term of the members and Chairman has ended on September 21, 2019, and new office bearers were appointed. Though as per Section 11 of the Act there are revisions made to the list by the state government after making a consultation with the Commission. Hence, the opinion of the Commission is important to take any such decision with this regard. 

Advocate Tarjani Desai, who was appearing for the petitioner Sangama, a society working for the upliftment of the sexual minorities, sex workers, and people with HIV stated, “The Commission has already submitted the report on June 9, 2010, which was way prior to the Nalsa Judgment.” 

The Division Bench of Chief Justice Abhay Oka and Justice Ashok S Kinagi clarified that now the issue will be addressed in the light of article 342A of the Constitution which has been introduced in the recent 102nd Amendment with effect from August 11, 2018. The Amendment read as follows- 

“342A Socially and educationally backward classes- 

1. The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

The Court asked whether the State government can really do it and even if the Commission is constituted then what role can it actually play for the inclusion of some category in the socially backward class in the light of the recent Amendment of Article 342A of the Constitution. The question has been posted on the State government and the counsel for the petitioner to apply their mind over the question and make their submissions till the next hearing scheduled on October 19, 2020.

The court order dated August 28, by way of interim order had directed the State government to take instant steps for the execution of the directions that were mentioned in paragraph 135.3 of the Supreme Court Judgment in the case of NALSA v. Union of India (2014) SSC 438. The Apex Court had also directed to take steps for enforcing the relevant provisions of the Transgender Persons (Protection of Rights) Act, 2019. 

The plea was regarding the while the appointment notification for recruitment in the post of Special Reserve Constable Force and Bandsmen, it calls for filing up of the vacancies specifies only “Men” and “Women” in the gender column who can apply for the vacancy, and throughout the entire notification there has been a complete disregard of the “Third Gender” and all the specifications are pertaining to “Men” and “Women”. 

Thus, the Supreme Court recognized the legal rights of the third gender as well and held that they are fully entitled to these under the Fundamental Rights under the Constitution of India as well as the International Law, and stated that the impugned notification was violating the fundamental rights of the third gender under the Article 14, 19 and 21 of the Constitution. Thus, the plea was made to the State government to add the category of “Third gender” for the respective post and consider all the applications of transgender at the same par with those applications of the other two categories. 

Hence, looking into the above-said judgment the High Court of Karnataka is waiting for the submissions of the counsel of the petitioner as well as the State government regarding the authority of the Commission for revising the list of the backward classes. 

[READ AFFIDAVIT]