NEET-PG : Supreme Court Seeks Responses Of Centre, States On Reservation For Transgender Persons

The Supreme Court today(October 6) heard a petition writ filed by two transgender persons seeking reservation in the NEET-PG exam as per the 2014 NALSA judgment, which had directed that transgender persons should be treated as socially and educationally backward classes and extend all kinds of reservation in educational institutions. It has asked States who are yet to file affidavit to file the same indicating in what time they are going to implement the horizonmental reservation for transgender persons.

Before a bench comprising Justice PS Narasimha and Justice AS Chandurkar, Senior Advocate Indira Jaising(for petitioners) sought an interim order for the horizontal reservation of two seats in the All India quota and one each in the Tamil Nadu and the Andhra Pradesh State quota, where the petitioners reportedly belong. As per them, the counselling is yet to begin, and they have challenged the NEET PG notification to the extent that it did not provide counselling for transgender person candidates.

On interim relief, the Court was informed by Additional Solicitor General Archana Pathak Dave, for the Union, that another contempt petition (Mx Kamlesh & Ors. v. Niten Chandra) is before the bench of Chief Justice of India, who was earlier hearing the present matter. She said that all States and Union Territories are a party to that matter. Initially, the present bench said that the matter should ideally be placed before the CJI bench, but then directed Dave to find out the scope of that petition, clarifying that it does not want to run parallel proceedings. 

Jaising clarified that on the last occasion, the Court had put up a query as to why the present matter was listed before this bench when the matter had been before the CJI. Nevertheless, the matter again came up before this bench. She added that while the scope of the contempt petition is larger, what she is seeking here is relief specific to two individuals. However, Justice Narasimha said that it can't restrict the scope only to two persons just because they have come before the Court, as many such persons may get the benefit if there is any positive outcome. 

Jaising said: "Contempt may result in maybe or maybe not issuing Rules. That's all contempt will result."

Justice Narasimha said: "One thing that is on our mind is that its not as if just two persons have come to us. The real problem today is, not problem but the thing is that the Supreme Court in the implementation of the NALSA judgment says that there must be a reservation, and there must be quantification of the reservation. Upon quantification, then automatically there will be a policy decision and number of position for reservation will be declared. Today it so happens that just two of persons have come here, there could be more meritorious people and there would be competition. Many of those who should not applied in contempt would say, we could have come. So to grant interim relief..."

Jaising responded that the interim relief does not mean it would deprive other transgender persons of their seats, as it is purely based on merit. She said that the petitioners are qualified doctors who have come before the Court to advance their education. 

However, Justice Narasimha said: "Two things trouble us. One is the implementation of the NALSA judgment is subject matter there and how much reservation and how in which manner we direct the State Governments by way of notification. Second part is to confine only to two States and one seat is also not a measure just because two persons have come here...The question we are asking is that, how to take a holistic view in providing the reservation for transgender and what you are addressing is that, forget about all this we have two clients, you make provisions for two of them."

Jaising responded that she does not mean that reservation benefit should not be extended to all, but since her clients at at the losing end as they applied, may lose their chance at counselling if no interim relief is granted. On this, Justice Narasimha orally said that the Court can consider asking the authorities All India to take a decision on how to implement the reservation. He said: "We can only do one thing, nothing to do with your client, we can consider All India to take a decision about how they are going to implement, how many seats they can reserve All India basis. We will not be driven by individuals who have come before us. We will be driven by implementing NALSA across the board for everybody. Two individuals will completely divert the whole thing. We can direct each State to come before us and tell us what time they will implement. It does not matter if its done this year but definitely it should be next year."

Jaising said it's acceptable if they come with an answer within a reasonable period, as there is still time for the counselling.

While the Court directed the Union and the respective States to take instructions on the reservation of two seats, it did not pass any order on interim relief. On being asked by Justice Narasimha what stand the Union has taken in the contempt matter, Dave said that the Union has taken a stand that transgender person can avail a reservation granted to Scheduled Castes, Scheduled Tribes, Other Backward Classes, or Economically Weaker Sections and no separate reservation can be provided. 

She also raised the issue that the definition of 'transgender person' is very wide and needs to an amended. Justice Narasimha asked who stopped the legislature from amending if it desires, to which Dave replied that it is being considered at this moment. Jaising clarified that her clients are people who have already been issued a transgender identity card.