The Supreme Court declined to consider a petition objecting to Bihar’s inclusion of terms like ‘hijra,‘ ‘kinnar,‘ ‘kothi,’ and ‘transgender’ in the caste list during a survey. This decision came after the government clarified that non-binary individuals could indicate their gender identity separately. The court is also examining other petitions questioning whether the survey based on caste is constitutionally valid.
Trans activist Reshma Prasad’s case was heard by Justices Sanjiv Khanna and SVN Bhatti. Prasad challenged Bihar’s decision to create a separate caste code for gender identities like ‘hijra,’ ‘kinnar,’ ‘kothi,’ and ‘transgender’ within the list of 214 castes used for the survey. Prasad argued that this inclusion was unconstitutional, arbitrary, and against the Supreme Court’s previous rulings, particularly the 2014 NALSA judgment recognizing the fundamental right to self-identify gender. The Patna High Court declined to intervene in the process, despite acknowledging the error in placing transgender identities in the caste category.
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The Patna High Court, while acknowledging the distinct nature of gender and caste identities, refrained from intervening in a case where the Bihar government included ‘hijra,’ ‘kinnar,’ ‘kothi,’ and ‘transgender’ identities in the caste list. The government had issued a clarification, allowing gender non-binary individuals to disclose their gender identity separately (by selecting ‘other’ in the gender column) and choose their actual caste from the list. Chief Justice K Vinod Chandran’s bench stated that ‘Transgender’ is not a caste identity, and every individual, regardless of conforming to male or female gender classification, should be allowed self-determination.
The State of Bihar submitted a counter-affidavit, emphasizing the existence of this clarification, which mitigated concerns about the distinction between caste and gender identities being blurred. The high court, while dismissing the petitioner’s plea, declined to direct the state government to remove the disputed item from the list, as the survey had already been completed. It noted that the government’s intention was not to confer caste-based benefits but to identify communities in need of social, economic, and educational support to ensure equal status and improved living conditions.
When the Supreme Court considered the special leave petition brought by Prashad, it echoed the high court’s reservations. Justice Khanna highlighted that the government had now introduced a separate column for transgender persons, which should address the issue. He stated, “What is the difficulty? Are you suggesting their inclusion as a caste? ‘Transgender’ is never a caste. This concern has been addressed, with the introduction of three separate columns: one for males, one for females, and one for transgender individuals. So, the data will be available.”
He also emphasized that treating all transgender persons as a single homogeneous caste wouldn’t be feasible due to the intersectionality of caste and gender identities, saying, “What you are wanting really is that transgender persons be treated as a separate caste. That may not be possible. They can be treated individually and provided with specific benefits, but categorizing them as a single caste isn’t feasible, as transgender individuals come from various castes.
Ultimately, Justice Khanna commenced announcing the order for the dismissal of the special leave petition when the petitioner’s counsel intervened The petitioner decided to withdraw the petition, which was granted by Justice Khanna.The petitioner-activist was represented by Advocate-on-Record Tanya Shree, with assistance from Advocate Ritu Raj.
The Supreme Court refused temporary stay on the exercise
This litigation centers around the decision of the Bihar government, led by Chief Minister Nitish Kumar, to conduct a caste-based survey launched on January 7 of the year. The aim was to digitally compile data on each family, from the panchayat to the district level, using a mobile application. Initially, in May, a temporary stay was issued on the caste-based survey conducted by the Bihar government. However, in August, the Patna High Court delivered a verdict upholding the exercise as ‘perfectly valid’ and initiated with due competence. It dismissed the petitions challenging the caste-based survey. Multiple petitions have been filed in the Supreme Court of India against this ruling. While a bench headed by Justice Sanjiv Khanna refused to issue a temporary stay on the exercise, the challenge against the Patna High Court’s verdict upholding the caste-based survey is currently being heard by the Supreme Court.The state government has already completed the survey, which is the first of its kind since 1931 when a comprehensive caste-based census was conducted by the British colonial government. The government also released the survey results earlier this month, while the Supreme Court continues to hear challenges to the caste-based survey.
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