'Transgender Not A Caste Identity, Every Individual Should Be Permitted Self Determination': Patna High Court
"Transgender is not a caste identity and every individual, including those not conforming to the male/female gender classification, should be permitted self determination," the Patna High Court has held.The division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy added that the Bihar government has erred in including transgender persons under the caste enumeration for its...
"Transgender is not a caste identity and every individual, including those not conforming to the male/female gender classification, should be permitted self determination," the Patna High Court has held.
The division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy added that the Bihar government has erred in including transgender persons under the caste enumeration for its Caste Survey of 2022.
Court said anyone from the community would be entitled to make representation to the State Government seeking not to reckon the transgenders as a caste however, it refrained from interfering in the matter.
It said that the "mistake" would only enable the State to devise welfare measures for the community. It said the intention is not to give benefits on the basis of caste, but to identify communities with the caste as an indicator of the larger group of individuals who would require measures for their social, economic and educational upliftment, to ensure an equal status and decent living conditions, within the society.
"This Court is of the opinion though there is a mistake committed insofar as the group of people, who are ‘transgenders’ are included under the caste enumeration; the separate identification of the community and an enquiry into their socio-economic and educational status as a group, could only lead to welfare measures and the community being targeted for upliftment after verification of such collective social, economical and educational status.”
The development comes in a writ petition filed by Reshma Prasad who contended that caste and gender are distinct facets of an individual's identity and thus, classifying transgender individuals under Item No. 22 within the caste category violates Articles 14, 15, 16, and 21 of the Indian Constitution.
Additionally, it was argued that this classification unjustly deprives transgender individuals of their right to choose their gender identity, impeding their right to self-determination and is inconsistent with the fundamental rights enshrined in the Constitution of India. The petitioner drew upon the precedent set by the Supreme Court in the case of National Legal Service Authority v. Union of India (2014).
The State government had filed a counter affidavit informing the court that this anomaly was rectified on 25.04.2023 by instructing the enumerators to have three options for male, female or other, wherein the third one meant for transgenders
While taking note of the fact that transgenders are included as among the 214 named castes, the Court observed, “Avowedly, the caste survey was initiated and continued by the State Government to ensure justice in development and to protect the interests of the marginalized and the downtrodden groups within the society. We have to immediately notice that the transgenders have been seeking for upliftment and equal rights, which could flow from the results of the survey, by framing of appropriate welfare schemes to help such marginalized groups.”
“The contention regarding distinct identities of caste and gender and the apprehension of self determination being effaced, is thus mitigated,” it added.
Case Title: Reshma Prasad vs. State of Bihar and Others
Case Citation: 2023 LiveLaw (Pat) 94
Case No.: Civil Writ Jurisdiction Case No.6505 of 2023
Counsels For the Petitioner/s : Ms. Sachina, Advocate
Counsels For the Respondent/s : Mr. P.K. Shahi ( AG )
Click Here To Read/Download Judgement