William & Mary Journal of Race, Gender, and Social Justice
Abstract
In this Article, I make an argument that the state, including the Government of India, is empowered by the Constitution of India to decide which classes qualify as “backward classes” for affirmative action measures under the Constitution. The Supreme Court of India has directed the government to include the transgender population as a backward class and to extend to them affirmative action measures such as reservation in public appointments and university admissions. In response, the Union of India has filed a clarification petition stating that it is incompetent to suo motu include the transgender population as a backward class and that it can only do so upon the recommendation of the National Commission for Backward Classes (NCBC). This Article is a response to the Union’s clarification petition and it seeks to show that constitutionally, the competence to add a community to the backward class list lies with the State authorities such as the Government of India, and any suggestion to the contrary is an incorrect reading of the Constitution. As this clarification petition is still pending in court, this Article seeks to inform the view taken on this subject by both the legal system and scholars.