Former Chief Justice of India (CJI), Justice UU Lalit, on Thrusday said the LGBTQ (Lesbian, Gay, Bisexual, Transgender and Queer) community is not entitled to claim “vertical’ sort of constitutional reservations like those given to the Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), or Economically Weaker Section (EWS)”.
Speaking at an event, the former CJI, however, said the community might claim a “horizontal reservation status on the lines of the ones for women and disabled people”, according to a press release.
Justice Lalit, who retired as the 49th CJI in November 2022, make the remarks in answer to a query during the Q&A session after delivering a special lecture on Affirmative Action and Constitution of India’ at the India International University of Legal Education and Research (IIULER) in Goa.
On whether the LGBTQ community will ever come under the ambit of constitutional affirmative action/reservation, Justice Latit, who is also the Principal Director of the Bar Council of India Trust run International Law School, said, “Theoretically yes, but if I give the counter argument, not to belittle the idea but to see that my birth in a community like SC, ST or OBC is something beyond my capacity while sexual orientation is my choice. It is not thrust upon me as an accident of birth. So it is not through my sexual orientation that I am deprived of anything.”
“Someone who is born as a third gender is a matter of accident of birth and there the affirmative action is a yes . But for most of the LGBTQ community the orientation is their own choice,” the former CJI added.
“And they have adopted it as a choice, nonetheless, I don’t think that there would be negation of the idea that perhaps in the future they can also be part of affirmative action to a certain extent. But the reservation that the constitution has recognised for SC, ST, OBC is a vertical reservation, i.e., SC can’t be ST or OBC and vice versa. This kind of reservation is for vertically separate compartments,” he said.
There are horizontal reservations also like those for women and physically disabled people and similarly the LGBTQ can be a horizontal reservation category. So horizontal reservations means that you will be taking a slice out of the individual vertical column without increasing the total reservation quota size. Like a woman can be an open category or can be SC, ST or OBC or EWS, he said, according to the release.
“The horizontal category traverses horizontally without increasing the total size of reservation. Simliarly perhaps this LGBTQ category can also be a horizontal reservation category but that is a matter for the Parliament to consider. Nothing wrong in considering a particular group as a group,” he added.
“During his lecture he elaborated on how several historical events and people along with some landmark judgements of the apex court and the timely intervention of the parliament shaped the affirmative action/reservation for the deprived sections of the society in the Indian Constitution and also evolved and widened its scope,” Justice Lalit was quoted as saying in the release.
Replying to another query, the former CJI said there was a provision for reservation for the community even in the private educational institutions even though they do not receive any funds from the government.
