The Patna High Court has rejected the Bihar Government’s application seeking to prepone the hearing in the plea challenging caste-based survey in the State. It is pertinent to note that on May 4, the Court stayed the caste-based census being conducted in Bihar with immediate effect. Furthermore, the Court posted the matter for hearing on July 3.
The Bihar Government has moved an interim application before the Court stating that its May 4 order is interim in nature, however, it has finally adjudicated the issues. Therefore, the matter must be disposed of as no purpose is served to keep the case pending.
The Bihar Government’s counsel, Advocate General PK Shahi, argued that in effect the interim order passed is a final order, especially, when this Court has held that there is no legislative power on the State to go ahead with the caste-based survey. The contention is that while passing an interim order, the final dispute should not have been adjudicated.
However, the Court said, “We have not set-aside the entire survey carried out, which was stated to be completed to the extent of 80%. We only stayed the further survey and also stayed dissemination of the information collected, to the political parties, as has been indicated in the very notification itself.”
“This is not in final disposal of the matter and we are sure that we are open to conviction, when the matter is heard finally, for which we have posted it on 03.07.2023,” the Court added.
The Court said, “In such circumstances, we do not find any reason to advance the hearing to an early date, especially when the matter is posted immediately after the vacation.”
Furthermore, the Court rejected the Bihar Government’s counsel’s contention that it could be “permitted to continue the survey with an undertaking that the data would be protected and that the same would not be disclosed.” The Court said the same would be reviewing the order, which is not permitted in an application seeking to prepone hearing.
Patna High Court stays Caste-Based Census in Bihar
On May 4, the Patna High Court stayed the caste-based census being conducted in Bihar with immediate effect. The Court reserved its judgement on a petition challenging and seeking an interim stay on the enumeration of castes and economic survey in Bihar on May 3.
The petitioner’s counsel argued that the ‘caste survey’ is a census in form and content and pointed out that the authority to carry out a census is with the Central Government under Entry 69 of List I of the Seventh Schedule to the Constitution of India. The petitioner’s counsel also contended that the Bihar Government does not have legislative competence.
It was also argued that the survey is, in effect, a census aimed at eliciting the caste status of the individuals native to the State. The petitioners also raised a contention that such a census would be violative of an individual’s privacy. The petitioner’s counsel placed emphasis on two points; one, the expenditure of Rs.500 Crores and the dissemination of information to all the political parties, as is proclaimed in the notification itself.
The Court noted, “It is the vehement contention of the State that the entire data now collected is available in the public domain; different individuals having given it for the purpose of availing reservation, social welfare measures, getting employment and so on and so forth. If the details are available in the public domain, we fail to understand why such a massive exercise, expending public resources has to be undertaken.”
The Court stated, “We are convinced that the survey, in the manner in which it is carried out, cannot be said to be within the policy realm of the State. Even the defence raised was to source the State’s power to legislate under the Concurrent List; which we have found to be untenable.”
The Court held that prima facie the caste-based ‘survey’ amounts to a census which only the Government of India has the power to carry out. The court stated, “On the above reasoning, we find that the caste-based survey is a census in the garb of a survey; the power to carry out which is exclusively on the Union Parliament which has also enacted a Census Act, 1948.”
The Court said, “We are of the considered opinion that the petitioners have made out a prima facie case against the continuation of the process of caste-based survey, as attempted by the State of Bihar. There is also the question raised of data integrity and security which has to be more elaborately addressed by the State.”
Furthermore, the court held, “Prima facie, we are of the opinion that the State has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament. We also see from the notification issued that the Government intends to share data with the leaders of different parties of the State Assembly, the ruling party and opposition party which is also a matter of great concern. There definitely arises the larger question of right to privacy, which the Hon’ble Supreme Court has held to be a facet of right to life.”
The Court concluded, “In such circumstances, we direct the State Government to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed in the writ petition.”
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