Note on ‘Mrinal Barik v. The State of West Bengal & Ors.’

Transgender^[1] persons in India have faced marginalization and discrimination in accessing education, employment, healthcare, public transportation etc. In the past decade, India has witnessed a significant rise in efforts toward securing and advancing transgender rights. In the landmark case of National Legal Service Authority vs. Union of India & Ors. (NALSA), the Supreme Court recognized the rights of non-binary gender identities and upheld their fundamental constitutional rights.^[2] Passing of Transgender Persons (Protection of Rights) Act, 2019 (Act), even with all its attendant concerns, has been a crucial step. A spate of judgments across the country has affirmed inclusivity and non-discrimination towards transgender persons.^[3] The case of Mrinal Barik v. The State of West Bengal & Ors. is an addition to this progressive jurisprudence.^[4]

In the case of Mrinal Barik, a petition was filed before the Calcutta High Court by a transgender person who succeeded in the Teacher Eligibility Test (TET) in the years 2014 and 2022, but was not called for counselling. The Calcutta High Court directed the Chief Secretary of the West Bengal government to ensure 1% reservation for transgender persons in matters of public employment in the State. Exercising its extraordinary jurisdiction under Article 226 of the Constitution, directions were issued to the Secretary, West Bengal Board of Primary Education to arrange the interview and counselling of the petitioner and recruit her as an Assistant Teacher in the primary section. Reliance was placed on the directions given in NALSA to the Central and State Governments to extend reservation to transgender persons in educational institutions and for public appointment. It was further noted on the basis of a notification^[5] that the state itself had adopted a policy of equal treatment in employment to transgender persons.

The foundational step for availing these reservations is providing proof of being a transgender person. However, the Act does not permit self-identification. A certificate of identity has to be obtained from the District Magistrate (DM), who will issue the certificate based on the recommendations of a District Screening Committee, which will comprise the Chief Medical Officer, District Social Welfare Officer, Psychologist or Psychiatrist, and a representative of the transgender community.^[6] As per data available on the National Portal for Transgender Persons, only 20,015 certificates have been issued to date with many certificates pending beyond the 30 day mandate^[7] and others declared non-eligible.^[8] Many are not able to obtain identification due to low digital literacy^[9], low awareness of transgender rights amongst the community and lack of decision making guidelines for the DM which creates bureaucratic hurdles. This creates hindrances for transgender individuals in gaining state recognition and availing the benefit of reservation in public employment, along with other state schemes.

Thus, while this judgement by the Calcutta High Court stands to be significant, yet issues of implementation continue to pose a challenge. Further, while affirmative action is an effective tool in the hands of the government to provide representation and visibility to marginalised communities, the solution to the broader challenge of large scale unemployment in the transgender community lies in skill development measures^[10], addressing school drop-out rates, broad scale sensitization and other such measures.