Former Chief Justice of India U U Lalit on Thursday said the LGBTQ community is not entitled to claim “vertical” reservations like those given to the Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), or Economically Weaker Section (EWS).
He, however, said they may claim “horizontal” reservation on the lines of the ones for women and persons with disabilities.
Justice Lalit, who retired as the 49th CJI in November 2022, was answering a query during the question and answer session after delivering a special lecture on ‘Affirmative Action and Constitution of India’ at the India International University of Legal Education and Research (IIULER) here.
When asked whether the LGBTQ community will ever come under the ambit of constitutional affirmative action/reservation, he 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,” he said.
The former CJI said the community members have adopted it as a choice.
“Nonetheless, I don’t think there would be negation of the idea that perhaps in future they can also be part of affirmative action to a certain extent,” he said.
He said the reservation that the Constitution has recognized for SCs, STs, OBCs is “vertical reservation”, which means an SC cannot be an ST or OBC and vice versa.
“This kind of reservation is for vertically separate compartments. There are horizontal reservations also like those for women and physically disabled people and similarly, the LGBTQ can be a horizontal reservation category,” he added.
Horizontal reservations means one will be taking a slice out of the individual vertical column without increasing the total reservation quota size, the former CJI pointed out.
“Like a woman can be an open category or can be SC, ST or OBC or EWS. The horizontal category traverses horizontally without increasing the total size of the reservation. Similarly, 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 stated.
