NEET PG reservation for transgender persons: Supreme Court seeks responses from Centre, States

Filing the plea before the Apex Court, the petitioners, who themselves belong to the transgender community, prayed for a direction upon the authorities to issue a fresh admission notice providing for compartmentalised horizontal reservation for transgender persons (including them) by reserving 1% seats in each vertical category.

Medical Dialogues had earlier reported that both the petitioners had written the entrance exams, but ambiguity persisted over the cut-off marks applicable in case of transgender reservation being recognised. The counsel for the students had earlier pointed out before the Court that various high courts issued conflicting orders, some granting ad-hoc reservations for transgender candidates and some declining the relief

Also Read: SC to hear plea on Transgender reservation in PG medical education on September 18

As per the latest media report by Live Law, before the Apex Court 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. They argued that the counselling has not begun yet and they have challenged the NEET PG notification to the extent that it did not provide counselling for transgender person candidates.

Regarding the issue of interim relief, Additional Solicitor General Archana Pathak Dave, who appeared for the Union Government, informed the Court that another contempt plea is before the bench of Chief Justice of India, who was earlier hearing the present matter. She further submitted that all the States and Union Territories are a party to that matter. 

Taking note of this, initially, the top court bench in this case said that the matter should ideally be placed before the CJI bench. However, later, it directed Dave to find out the scope of that petition, clarifying that it does not want to run parallel proceedings.

At this outset, Advocate 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. She also added that while the scope of the contempt plea is larger, she is seeking relief specific to these two petitioners. 

However, Justice Narasimha said that it cannot restrict the scope only to two persons just because they have come to the Court, as many such persons may get the benefit if there is any positive outcome regarding the plea.

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

In response, Justice Narasimha observed, "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..."

Regarding this, Advocate Jaising argued that an interim relied did not mean that it would deprive other transgender persons of their seats, as it is purely based on merit. She further added that the petitioners are qualified doctors who have approached the Court to advance their education.

Responding to this, Justice Narasimha observed, "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."

Advocate Jaising clarified that the she did not mean that the reservation benefit should not be extended to all. However, since her clients are at the losing end, as they applied, they may lose their chance at counselling of if no interim relief is granted.

Taking note of this, Justice Narasimha orally said that the Court can consider asking the authorities across India to decide on the process of implementation of the reservation.

"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," observed Justice Narasimha.

In response, Jaising said that if the answer comes within a reasonable period, it is acceptable, as there is still time for the counselling.

Accordingly, the Court directed the Union and the respective States to take instructions on the reservation of two seats. However, it did not pass any interim relief.

When the Court asked regarding the Union Government's stand, ASG Dave said that the Union's stand is 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 argued that the definition of 'transgender person' is very wide and requires amendment. When Justice Narasimha asked who stopped the legislature from amending if it desires, Dave replied that it is being considered at this moment. Advocate Jaising clarified that her clients are people who have already been issued a transgender identity card.

Also Read: Cannot keep seats everywhere in limbo: SC flags uncertainty over transgender reservation in NEET PG admissions