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Authored by - Riya Sharma (Intern at Legal Soch Foundation)
Meta Description - The Supreme Court of India is considering a petition challenging the Bihar government's inclusion of transgender identities in the caste list during a recent survey. Trans activist Reshma Prasad argues that this classification violates constitutional rights and the Transgender Persons (Protection of Rights) Act, highlighting a significant legal battle at the intersection of gender identity and caste recognition in India.
Keywords - Bihar Government, transgender, survey, caste, fundamental rights, ex parte, judgement, discrimination, gender identity, petition, marginalized, mobile application.
Currently, the Supreme Court of India is engaged in a dispute regarding the inclusion of terms like hijra, 'kinnar,' kothi, and 'transgender' in the Bihar government's caste list during a recent survey. Reshma Prasad, a transgender activist, is leading the charge in this battle by arguing that this categorization violates various constitutional articles such as 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).
Prasad's argument stems from the belief that classifying transgender individuals under a caste category not only infringes upon their rights but also contradicts the Transgender Persons (Protection of Rights) Act, 2019. The petitioner emphasises that the influential NALSA judgement recognised 'hijras and eunuchs as the 'third gender, thereby mandating that the Bihar government safeguard them from discrimination.
Moreover, Prasad challenges the Patna High Court's decision to abstain from intervening in this matter and its suggestion that the petitioner present their case before the State Government instead. Prasad argues that there is no need for this, as a similar representation was already put forth in April 2023 aiming for identification in the caste-based survey.
The petitioner argues that the transgender community has been wrongly classified as a caste, resulting in discrimination and denying them the right to self-identify their gender. This legal dispute has brought attention to Section 8 of the Transgender Persons (Protection of Rights) Act, which emphasises the welfare of individuals without any stigmatisation or discrimination. Similarly, Rule 10(3) of the Transgender Persons (Protection of Rights) Rules, 2020, has also been allegedly violated.
In response to this controversy, the Patna High Court acknowledged that transgender identities were mistakenly included under the caste category but decided against removing them from the list. The court cited the government's intention to identify communities in need of economic and educational support rather than providing caste-based benefits. It was emphasised that this effort aimed at improving socio-educational conditions for marginalised communities.
This legal battle originated from the Bihar government's decision to conduct a census based on caste affiliation, which was the first such survey since 1931. Under Chief Minister Nitish Kumar's administration, this survey intends to gather data on every family from panchayat to district levels through an application. Despite facing objections and a temporary halt, the Patna High Court eventually affirmed the legitimacy of the survey, resulting in petitions being submitted to the Supreme Court.
As the Supreme Court continues to hear the case, it raises critical questions about the intersection of gender identity and caste in India and the constitutional protections afforded to transgender individuals. The outcome of this legal battle could have far-reaching implications for the recognition and rights of transgender communities across the country.
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