Bihar Caste-Based Census: Supreme Court disposes of Nitish Govt’s plea against stay as Patna HC reserves its verdict

On July 21, the Supreme Court disposed of the Bihar Government’s plea challenging the Patna High Court’s May 4 order issuing an interim stay on the caste-based census being conducted in Bihar. The court said that in view of the high court’s Division Bench reserving a verdict on July 7, the Bihar Government’s plea challenging the stay has become infructuous.

The Supreme Court’s Division Bench, comprising Justices BR Gavai and Prashant Kumar Mishra, was hearing the Bihar Government’s plea against the Patna High Court’s order. The court disposed of the petition after the counsels appearing for both sides agreed that the matter had become infructuous since the High Court reserved its verdict.

The Nitish Kumar Government had moved the Supreme Court challenging the Patna High Court’s May 4 order, 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.

Stay on Bihar Government’s Caste-Based Census

On May 4, the Patna High Court stayed the caste-based census being conducted in Bihar with immediate effect. The Patna High 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. Furthermore, the counsel argued that the State Government cannot carry out a caste census as it has no legislative competence and, in that circumstance, neither can an executive order be sustained under Article 162 of the Constitution of India.

Furthermore, it was argued that when a survey is carried out, it has a specific objective which is absent in the caste survey which raises the question of whether the present survey carried on as a caste-based one. 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 State Government’s counsel, Advocate General argued that there is no law prohibiting disclosure of caste. The Advocate General contended that “on the question of privacy, it is to be mentioned that there is no law prohibiting the disclosure of caste nor the exercise of a survey carried out by the State of Bihar. In the Indian context, it cannot be said that disclosure of caste is a violation of privacy; especially when the same is disclosed for the purpose of reservation and availing benefit of welfare schemes by the citizens themselves, voluntarily.”

The Patna High 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 Patna High 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 Patna High 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 Patna High Court noted, “Though it has been vehemently urged that both Houses of the State Legislature has sanctioned the survey, there is nothing placed on record regarding the deliberations made or the objects sought to be achieved by embarking upon such a massive exercise, that too for the collection of details which include the sensitive issue of caste.” The court added, “There are broad reasons stated in the counter affidavit, but nothing comes out from the notification, nor is any specific reasoning or object stated to have motivated the initiation of the exercise of a caste-based survey, which reasoning or motivation should also be relatable to a time, contemporaneous with the time of bringing out the notification.”

The Patna High 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 Patna High 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.”