The Patna High Court has opined that 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 Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy observed that 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.
The Court disposed of the Petition filed asserting the rights of the transgender persons with reference to the Caste Survey of 2022, as carried out by the State Government of Bihar.
Caste & gender are asserted to be two separate identities of an individual and hence, the inclusion of transgender persons in Item No. 22 under the category of caste is violative of Article 14, 15, 16 and 21 of the Constitution of India, is the contention. This effectively dis-entitles the transgender persons from the right to chose their gender identity, thus denying their right to self determination which results in gross arbitrariness and is inconsistent with the fundamental rights guaranteed under the Constitution of India. Reliance is also placed on the judgment of the Supreme Court in National Legal Service Authority v. Union of India, (2014) 5 SCC 438.
The Bench noted from the list of castes, that at Item No. 22, transgenders are included as among the 214 named castes. 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. The Bench further noted that the transgenders have been seeking for upliftment and equal rights, which could flow from the results of the survey, by framing appropriate welfare schemes to help such marginalized groups.
“True, 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 State of Bihar has filed a counter affidavit in which it has been categorically stated that there is a clarification issued by the Government letter dated 25.04.2023, to the enumerators that the answer to question No. 5 related to gender has to be in three options of male, female or other. If any person opts to be included in ‘other’, then they are permitted to mention their real caste in the reply to question No. 8. The contention regarding distinct identities of caste and gender and the apprehension of self determination being effaced, is thus mitigated.
The petitioners counsel, however, vehemently prayed for expunging of ‘transgenders’ from the caste list. As of now, the prayer may not survive since the caste survey is completed. The petitioner or anyone from the community would be entitled to make representation to the State Government, seeking not to reckon the transgenders as a caste.