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

A petition has been filed in the Supreme Court over the Bihar government including ‘hijra’, ‘kinnar’, ‘kothi’, and ‘transgender’ as an item in the caste list, while conducting its caste-based survey last month. The court is also hearing a batch of pleas doubting the constitutionality of the exercise. 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...

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

Awstika Das

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