The Supreme court has received a petition over the Bihar governments decision to include ‘hijra’, ‘kinnar’, ‘kothi’, and ‘transgender’ as an item in the caste list, while conducting its caste-based survey last month.
The Apex court is hearing a batch of pleas which doubt the constitutionality of the exercise.
An activist from the Trans community Reshma Prasad has challenged the excision of the state government to assign a separate caste code to these gender identities along with including them in the list of 214 named castes created for the purposes of conducting the survey
The trans activist has termed this as unconstitutional, manifestly arbitrary, and against the spirit of the Supreme Court’s precedents.
The activist has also cited the judgment of 2014 by NALSA which recognised the fundamental right of gender self-identification.
The petitioner has approached the Apex Court after the Patna High Court refused to accept their request to expunge this from the survey.
The High Court however 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.
As per the June 6 notification, the classification was outlined which made the petitioner argue as it 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).
The petitioner said that such a classification also runs contrary to the Transgender Persons (Protection of Rights) Act, 2019.
In his petition Prasad has contended that 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.
The petition mentions that this was 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.
The petition clearly mentions how Section 8 of the Transgender Persons (Protection of Rights) Act 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 been contravened.
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.
As per the relevant law making it obligatory for the Bihar government to protect transgender individuals from ‘pervasive discrimination’ faced by them.
The activist 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 petition mentions how the state government lacks the authority to assign [these gender identities] a separate caste code during the caste-based survey in Bihar.
it was added that 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.
Prasad concluding his argument added 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.