Panaji: Former Chief Justice of India (CJI) UU Lalit stated on Thursday that the LGBTQ community is not entitled to vertical reservations akin to those provided for Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), or Economically Weaker Section (EWS). Speaking at an event in Goa, Justice Lalit, who retired as the 49th CJI in November 2022, mentioned that while the LGBTQ community may not qualify for vertical reservations, they could potentially claim a "horizontal reservation status on the lines of the ones for women and disabled people."

Vertical vs Horizontal Reservations 

Addressing a query during a 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, Justice Lalit explained his perspective. He noted that, theoretically, the LGBTQ community might come under the ambit of constitutional affirmative action or reservation. However, he underlined the distinction between the nature of birth-related reservations, such as those for SC, ST, or OBC, and choices related to sexual orientation.

Nature of Birth vs Personal Choice

Justice Lalit pointed out that being born into a certain community is beyond an individual's capacity, unlike sexual orientation, which he considers a personal choice. While acknowledging that affirmative action might be applicable to some members of the LGBTQ community, such as those born as a third gender due to the accident of birth, he highlighted that the majority of individuals in the LGBTQ community make a conscious choice about their sexual orientation.

“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 said.

The former CJI elaborated on the constitutional reservations recognised for SC, ST, and OBC, categorising them as vertical reservations. In contrast, he suggested that LGBTQ reservations could potentially be horizontal, similar to reservations for women and physically disabled people. Horizontal reservations allow individuals to belong to multiple categories without increasing the overall size of the reservation quota.

Matter for Parliament to decide on: Justice Lalit

Justice Lalit clarified that the consideration of LGBTQ as a horizontal reservation category is a matter for the Parliament to decide. He said that there is nothing wrong with considering a particular group for reservation and stated, “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.”

Responding to another query, the former CJI mentioned that there is provision for reservation for the LGBTQ community in private educational institutions, even if they do not receive government funds.

In short, Justice UU Lalit talked about LGBTQ reservations, explaining the difference between vertical (like for SC, ST, OBC) and horizontal (like for women and disabled) reservations based on birth and personal choices. The former CJI also spoke on the need for parliamentary consideration in determining the appropriate categorization for LGBTQ reservations, while acknowledging the potential for inclusion within the framework of affirmative action.