Plea In Supreme Court Challenges Inclusion Of Transgender Identities Under Caste Lists In Bihar Caste Survey

Trans activist Reshma Prasad has challenged 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, as 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. The petitioner has approached the Supreme Court after the Patna High Court declined their request to expunge this from the survey. Though the High Court agreed that the inclusion of transgender identities under the caste category was erroneous, it refused to interfere in the process and asked the petitioner to submit a representation before the State Government.

This classification, outlined in a June 6 notification, the petitioner has argued, violates several constitutional articles, including Article 14 (right to equality), Article 15 (prohibition of discrimination), Article 16 (equality of opportunity in public employment), Article 19(1)(a) (freedom of speech and expression), and Article 21 (right to life and liberty). Not only this, but such a classification also runs contrary to the Transgender Persons (Protection of Rights) Act, 2019, Prasad has contended. The petition states –

“Classifying transgender individuals under the caste category in the Bihar caste census violates Article 14, 15, 16, and 21 of the Constitution, as well as the Transgender Persons (Protection of Rights) Act, 2019. This is in disregard of the precedents set by the Supreme Court in Anuj Garg v. Hotel Association of India (2008) and National Legal Service Authority v. Union of India (2014), and is thus manifestly arbitrary and liable to be struck down…The state government’s action in categorizing hijra, kinnar, kothi, and transgender (third gender) as a separate caste code at serial number 22 is void ab initio.”

Besides Section 8 of the Transgender Persons (Protection of Rights) Act that mandates measures for the welfare of transgender individuals without stigmatisation or discrimination, Rule 10(3) of The Transgender Persons (Protection of Rights) Rules, 2020 has also been contravened, Prasad has argued. In this connection, Prasad has also pointed out that the landmark NALSA verdict recognised ‘hijras’ and eunuchs as ‘third gender’ in order to safeguard their rights under the Constitution and relevant laws, making it obligatory for the Bihar government to protect transgender individuals from ‘pervasive discrimination’ faced by them.

Prasad has also objected to the high court asking them to submit their representations to the government to not classify ‘transgender’ identity as a sub-set of the caste identity –

“The state government lacks the authority to assign [these gender identities] a separate caste code during the caste-based survey in Bihar. Therefore, the Patna High Court's direction to the petitioner and the community to request that the state government not categorise them as a caste is unwarranted, as such a representation had already been made in April 2023, requesting equal identification during the caste-based survey.”

In conclusion, Prasad argued that this improper classification of the transgender community as a caste in the 2022 Bihar caste ‘census’ has led to discrimination and denied members of the community the right to self-identify their gender.

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

Background

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, last month, 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 is in the process of interpreting and analysing the data. 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.

The caste survey also elicited criticism for including ‘kinnar’, ‘kothi’, ‘hijda’, and ‘transgender’ as one of the choices in a list of 214 named castes. The inclusion of all transgender individuals as a distinct caste was the subject matter of a constitutional challenge in the Patna High Court. It was argued that the classification impeded the right to self-determination, besides conflicting with a number of constitutional rights. While observing that gender and caste identity were distinct and could not be conflated, the high court refrained from interfering 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 division bench observed –

“‘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.”

The bench led by Chief Justice K Vinod Chandran 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 also 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 petitioner or anyone from the community would be entitled to make a representation to the state government, seeking not to reckon ‘transgender’ as a caste. However, this court is of the opinion though there is a mistake committed insofar as [transgender people] 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, economic, and educational status. 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.”

Case Details

Reshma Prasad v. State of Bihar | Diary No. 36554 of 2023