State Has No Power To Conduct A Caste-Based Survey, Sharing Its Data With Political Parties A Matter Of 'Great Concern': Patna HC

"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," the Patna High Court today observed as it put an interim stay on a caste-based census in the State.

The bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad also called it a matter of 'grave concern' that the Government intends to share Census data with the leaders of different parties of the State Assembly, the ruling party and the opposition party.

"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," the Court ordered.

The court was essentially dealing with a bunch of petitions filed in the public interest against the caste census attempted by the State of Bihar.

Before the court, it was primarily argued by the counsels for the petitioners that the so-called caste-based survey initiated by the state Government is in fact a census in form and content and the authority to carry out such a census is with the Central Government under Entry 69 of List I of the Seventh Schedule to the Constitution of India.

It was further argued that the State cannot attempt to carry out a caste census in the garb of a survey, especially when the State has absolutely no legislative competence.

It was also contended that there is also no measure implemented by the State to ensure data security. It was submitted that even if the collection of data is on a voluntary basis, there can be no public consumption of such data, which would again violate the right to privacy of an individual; even if the data is given voluntarily.

On the other hand, defending the Government's decision to conduct a caste-based survey, the Advocate General for the state argued that the first field survey commenced in January 2023 and the second phase is expected to conclude by May 15 and as of now 80% of the work is completed.

He further submitted that the decision is a policy decision and it is a legitimate exercise of a survey carried out by the State Government to better understand the needs and requirements of its people; all aimed at ensuring its people, a life with dignity. He also pointed out the delay of the petitioners in approaching the Court, which he claimed to be fatal as the exercise is almost over.

He also informed the court that no money has been taken from the contingency fund and the legislature has approved the budgetary provisions for the expenditure and that there was a unanimous resolution taken in the two House of the State to carry out the survey which also has been approved by the State Cabinet.

Regarding the concern of privacy raised by the petitioners, the AG submitted that 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.

It was lastly submitted that Entry 45 of List III of the Concurrent List along with Entries 20, 23, 24 and 30 deal with the legislative power of the State to conduct such a survey. It was added that the State has the absolute exclusive privilege of shaping its policies to give maximum advantage to the citizens; especially the marginalized, which is the ultimate objective of the caste-based survey.

Against the backdrop of these arguments, the Court went ahead to deal with the ticklish question of whether the instant survey falls within the policy realm or in the legislative domain; and if in the latter, whether there is a power so to do.

Court's observations 

At the outset, the Court observed that in a ‘census’, the details of an individual are collected, while in a ‘survey’, often the opinions and perceptions of the targeted persons are collected and in both, the result in an analysis of the data collected; which in the case of a ‘census’ are empirical, while in a ‘survey’ are mostly logical conclusions.

Viewed from the above perspective, the Court held, the present exercise by the State of Bihar can only be seen as an attempt to carry out a ‘census’ under the name of a ‘survey’.

Further, the Court said that the power to carry out a census is in the exclusive domain of the Union Parliament and hence, the State Legislature cannot embark upon such an exercise. 

"...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. 29. 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.

Regarding the argument of the state that the survey would enable it to shape its policies according to the backwardness of citizens, the Court said that to effectuate affirmative action and identify backwardness, a Commission (Backward Commission) has already been appointed.

"We are afraid the impugned exercise is not of identification of backwardness but of the caste- status of the natives of the State of Bihar. This is explicit from the requirement in the guidelines to ascertain the caste of an individual, from the head of the family, relative or neighbour. As far as a child is concerned, the guidelines insist on the ascertainment of the father’s caste from the mother...There is also a compulsion on the mother, if she fails to disclose it, to do so in front of any other person present there. The guidelines also prohibits the caste of the mother to be entered as that of the child; which is in violation of the Hon’ble Supreme Court declaration that the backwardness of a person, for reason of his belonging to a caste, should be determined by the circumstance in which he grows up. The possibility of deprivation having visited on the child on account of the caste status, in which he is brought up, is the relevant aspect to be considered for the purpose of enabling the benefits of affirmative action" the Court said.

Further, the Court questioned the submission of the state that the entire data now collected is available in the public domain; with 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. It is admitted that to satisfy the ‘triple tests’, ensuring proportionate representation in the Local Self Government Institutions, there is appointed a Commission, which could very well consider the issue."

In view of this, the Court put an interim stay on the caste-based survey and posted the matter for further hearing on July 3.

Case title - Youth For Equality & Ors. vs. The State of Bihar & Ors. along with connected pleas.

Citation: 2023 LiveLaw (Pat) 40