State Govt Competent To Conduct Caste Based Survey To Determine Backward Communities For Providing Development With Justice: Patna HC

The High Court’s decision has paved for a caste survey in the state, the further work of which was stayed (as an interim measure) by the HC on May 4.

In its 101-page Judgment delivered by a bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy, the Court categorically held that the state’s contention can’t be brushed aside that the “purpose (of the survey) is to identify the Backward Classes, Scheduled Castes and Scheduled Tribes with the aim of uplifting them and ensuring equal opportunities to them”.

The Court also opined that the state government was competent to conduct the survey as any affirmative action under Article 16 or beneficial legislation or scheme under Article 15 “can be designed and implemented only after the collection of the relevant data regarding the social, economic and educational situation in which the various groups or communities in the State live in and exist”.

The Court also observed that no element of coercion was found in the entire exercise as there was no such complaint having been applied by the Government officers in getting the details from the citizens and therefore, the State Govt’s initiative, which is voluntary in nature, does not violate the privacy rights of people.

“…the disclosures are voluntary and it has a definite aim of bringing forth development schemes for the identified backward classes/groups. The caste status sought to be collated is not intended at taxing, branding, labeling or ostracizing individuals or groups; but it is to identify the economic, educational and other social aspects of different communities/classes/groups, which require further action by the State for its upliftment,” the Court said.

It may be noted that the survey was rolled out in two phases. The first phase, which began on January 7, was a household counting exercise and it was completed by January 21.

The second phase started on April 15, wherein the information on people’s caste and their socio-economic conditions was collected. The entire exercise was scheduled to end by May 2023.

However, hearing the PIL pleas against the Bihar Government's ambitious decision, the Patna High Court, on May 4, put an interim stay on it while observing that it prima facie amounts to a census that the State Government has no power to carry out.

In its Judgment, the Court noted that the 17 heads of details that are to be collected in the survey “would definitely indicate the social and educational backwardness of the communities”, which is also an indicator of the financial conditions on which the community exists.

The Court further observed that Caste has been found to be an important indicator to understand backwardness since historically the deprivations visited on communities were based on their caste names.

“The constitutional goal we see from the aforesaid discussions is not intended at effacing caste but aimed at erasing once and for all, discrimination based on caste. The mere unfortunate circumstance of birth within one caste cannot lead to a man or woman being excluded from the privileges and benefits enjoyed by the other members of society and when it becomes the accepted normal & the general norm, then there can be no claim of equality within the society,” the Court further added.

Relying on Supreme Court’s Judgment in the Indra Sawhney Case (1992), the Court observed that for the purpose of affirmative action or schemes or projects to ensure their upliftment as also providing adequate representation in governance there can be a method adopted, a reasonable method and procedure, for the purpose of identifying the backwardness in society, which could also be on the basis of caste.

“…identification of the backward communities has to be made after a survey of the entire populace and the majority judgment did not find any fault with identification of caste, which would represent explicit identifiable social classes/groupings, especially when the very intention of Article 16(4) was to ameliorate social backwardness,” the Court said.

In this regard, the Court also referred to the provisions in the Constitution of India contained under Articles 15 and 16 which ensure the equality of opportunity in matters of public employment to uplift the marginalized sections of society and bring them to par with the privileged class.

Further, the Court also stressed that the State Governments “cannot wait on their haunches” for the Central Government to carry out the census and provide it with the details so as to ensure affirmative action within the State, in its services under Article 16(1) & (4) and for its downtrodden under Article 15(1) & (4).

“For the State Governments to take up the cause of backward communities, there should be a collection of empirical data, on which would be based the affirmative actions and the various schemes and projects to uplift the marginalized masses and bring them to the mainstream,” the Court said.

Against this backdrop, after specifically holding that the state government is competent to conduct such a survey, the Court noted that since the executive authority is found to be within its competence to frame a policy for better administration of the State and the policy framed is not arbitrary, the Court “cannot and should not overstep the limits and tinker with the policy”, the framing of which is in the exclusive domain of the State.

Answering the objection of the petitioners that the states must identify marginalised castes by appointing commissions, the Court, again referring to the Indra Sawhney judgment, said that “the appointment of commissions is not the only procedure, method or approach to be adopted in the identification of backwardness, and there is no such thing as a standard or model procedure/approach”.

The Court also said that the survey cannot dismissed as a “futile search for the pot of gold, at the end of a rainbow or a useless pursuit of a mirage; but it is the path to the attainment of an egalitarian society, which is the Constitutional goal, which every State and its instrumentalities should endeavour to achieve and realize and so is a duty cast on the citizens at large”.