Bihar Caste Survey | Plea In Supreme Court Against Inclusion of Transgender Identities Under Caste Lists Withdrawn In View of Govt's Clarification

The Supreme Court on Monday refused to entertain a petition against the Bihar government including ‘hijra’, ‘kinnar’, ‘kothi’, and ‘transgender’ as an item in the caste list, while conducting its caste-based survey in August, in view of a clarification issued later by the government allowing non-binary persons to disclose their gender identities in a separate column. The court is also hearing a batch of pleas doubting the constitutionality of the caste-based survey.

A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing trans activist Reshma Prasad's plea challenging the state government’s decision to assign a separate caste code to these gender identities and include them in the list of 214 named castes created for the purposes of conducting the survey. Prashad argued that such inclusion was unconstitutional, manifestly arbitrary, and against the spirit of the Supreme Court’s precedents, including the 2014 NALSA judgment which recognised the fundamental right of gender self-identification. Under challenge was a decision of the Patna High Court declining to interfere in the process, even as it agreed that the inclusion of transgender identities under the caste category was erroneous. 

While observing that gender and caste identity were distinct and could not be conflated, the high court had refrained from intervening in the matter in view of a clarification issued by the government allowing gender non-binary people disclosing their gender identity (by selecting the ‘other’ option in the gender column) to choose their actual caste from the list. The order by the bench led by Chief Justice K Vinod Chandran stated –

“‘Transgender’ is not a caste identity and every individual, including those not conforming to the male or female gender classification, should be permitted self-determination… The State of Bihar has filed a counter affidavit in which it has been categorically stated that there is a clarification…The contention regarding distinct identities of caste and gender and the apprehension of self-determination being effaced, is thus mitigated.”

While dismissing Prashad's petition, the high court had also declined to direct the state government to expunge the offending item from the list since the survey had been completed at that point. It further noted that the intention of the government was not to provide benefits based on caste but to identify communities requiring social, economic, and educational support for equal status and decent living conditions.

The Supreme Court today, while hearing Prashad's special leave petition, echoed the high court's reservations. Justice Khanna reasoned, "What has happened is, as far as transgender persons are concerned, the government has now provided a separate column. What is the difficulty? You want them to be included as a caste? 'Transgender' is never a caste. This has been taken care of...There are now three columns - male, female, and transgender. So, the data will be available..."

The judge also added that treating all transgender persons as identifying with one homogenous caste would not be possible in the interest of intersectionality of caste and gender identities. "What you are wanting really is that transgender persons be treated as a separate caste. That may not be possible. They can be treated separately and conferred certain benefits, but not as a caste. Because there will be transgender persons from across the board - from different castes."

In the end, Justice Khanna began pronouncing an order dismissing the special leave petition when the petitioner's counsel interjected. "We would like to withdraw the petition."

"Alright," Justice Khanna agreed, before pronouncing -

"The learned counsel seeks permission to withdraw the present petition. In view of the statement made, the present special leave petition is dismissed as withdrawn."

The petitioner-activist is represented by Advocate-on-Record Tanya Shree assisted by Advocate Ritu Raj.

Under the scanner in this litigation is a decision of the Chief Minister Nitish Kumar-led Bihar government to conduct a caste-based survey that was launched on January 7 of this year, in order to digitally compile data on each family – from the panchayat to the district-level – through a mobile application. After initially issuing a temporary stay in May on the caste-based survey being conducted by the Bihar government, in August, the Patna High Court delivered its verdict upholding the exercise as ‘perfectly valid initiated with due competence’ and dismissed the petitions challenging the caste-based survey. Against this ruling, multiple petitions have been filed in the Supreme Court of India. In the meantime, the state government completed its survey – the first of its kind since 1931 when a comprehensive caste-based census was conducted by the then-British colonial government – and also released the survey results earlier this month. While a bench headed by Justice Sanjiv Khanna has unequivocally refused to issue a temporary stay on the exercise, the challenge against Patna High Court’s verdict upholding the caste-based survey is currently being heard by the top court.