The Nitish Kumar-led Bihar Government has moved the Supreme Court to challenge Patna High Court’s May 4 order granting an interim stay on the caste-based census being conducted in the state with immediate effect.
The Patna High Court held that the state government does not have the legislative power to conduct the ‘survey’ and said, “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.”
Furthermore, the Patna High Court noted the data privacy concerns with the ‘survey’ and said, “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 Bihar Government has challenged the Patna High Court’s order before the Supreme Court, contending that the ‘survey’ was on the verge of completion and the stay on it is causing an irreparable cost to the state. It is pertinent to note that the estimated cost of the ‘survey’ stand at about Rs 500 crores.
“The State has already completed more than 80% of the Survey work in some districts less than 10% of work is pending. The entire machinery is at ground level. There shall be no harm in completing the exercise subject to final adjudication of the dispute. The time gap to complete the survey would adversely affect the survey since this would not be contemporaneous data…the stay of collection of data itself would cause a huge loss to the State since, if finally the action of the State is upheld, the State would be required to put logistic in place with additional expenditure and burden on public exchequer,” the Bihar Government’s plea before the Supreme Court read.
Furthermore, the Bihar Government has also challenged the Patna High Court’s finding that the conduction of ‘caste-based survey’ amounts to a ‘census’ and thus the state does not have the power to conduct it. The government contends that the power of the state to conduct a survey is traceable to various entries of List III, Part-3 and Part-4 of the Constitution of India.
It is also averred that the collection of caste-based data is a constitutional mandate under Articles 15 & 16 of the Constitution of India. Furthermore, the Government of India and the State Governments have enacted the National and State Commission of Backward Classes Act, and that its effective implementation requires quantifiable data. “The provisions of the Act can be effectively implemented only when the State has data based on caste,” the Bihar Government’s plea read.
Furthermore, the Bihar Government argues that the Patna High Court’s finding that the enumeration of caste does not find place in the Concurrent & State List but just the Union List is dangerous as it takes away the state government’s power to act on the basis of caste or identification of caste under Article 342-A and the Backward Commission Acts of the States.
“The 105th Constitutional Amendment reaffirms the power of the State for identification of caste under Article 342A. This can be achieved if the State has contemporaneous data on caste in the State,” the Bihar Government’s plea read.
Furthermore, the Bihar Government argues that the Patna High Court’s order at the interim stage are equivalent to a final relief and thus, the writ petition has become infructuous, therefore, the same be heard and disposed of.
It is pertinent to note that the Patna High Court clarified that it has not set aside the entire survey, however, it has stayed further survey and the dissemination of information to political parties. However, the Patna High 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 Patna High Court added.