KABEER Vs. STATE OF KERALA

JUDGEMENT

(1.) Transgenders filed these writ petitions. They seek relief of a writ of mandamus directing the Government of Kerala to provide reservations to transgender persons in education and public employment. The earliest writ petition was filed in 2019. These writ petitions were filed in the light of the declaration of law by the Apex Court regarding the right of transgenders in National Legal Services Authority v. Union of India and Ors. [(2014) 5 SCC 438]. This Court passed various interim orders in the earliest writ petition, W.P.(C). No.29247/2019. However, nothing has come out effectively to provide reservations to the transgenders. We also note that the Government has taken various measures to assist transgenders through different Government orders from 2015 onwards. Yet, the Government failed to evolve policies providing reservations to transgenders.

(2.) 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 Apex Court existing, the judicial role in enforcing such rights become imperative. 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. But in this case, the rights of transgenders have been declared by the Apex Court in the National Legal Services Authority's case (supra), declaring the law as follows:

(3.) 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. The law declared by the Apex Court is essential to ensure that transgenders are equally treated along with other gender groups, to take proactive measures for affirmative action.