'Fanciful & Unrealistic': Rajasthan HC Dismisses PIL Seeking Direction To Centre To Conduct Census In Specified Timeframe; Imposes 25K Cost

Section 3 of Census Act, 1948 states that the Central Government may, by notification in the Official Gazette, declare its intention of taking a Census in the whole or any part of the territories to which this Act extends, whenever it may consider it necessary or desirable so to do and thereupon the Census shall be taken.

The petitioner sought directions for conducting decennial Census.

The court observed that India is a country of burgeoning population nearing 1.5 billion and as such, conducting the gargantuan exercise of census requires immense preparation, mammoth efforts, large scale involvement of Human resources in addition to being a very expensive operation.

A division bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani, while dismissing the petition with Rs. 25,000 as cost, ruled,

"The fervent contention of Shri Khatri that as Section 3 of the Act gives an unfettered discretion to the Central Government to take a census "whenever it may consider it necessary or desirable so to do" and hence, it should be declared to be ultra vires, absolutely fanciful and unrealistic. India is a country of burgeoning population nearing 1.5 billion and as such, conducting the gargantuan exercise of census requires immense preparation, mammoth efforts, large scale involvement of Human resources in addition to being a very expensive operation."

The court opined that the country has been struck by repeated waves of highly dangerous Covid-19 pandemic and thus, no reasonable person could expect that such a massive operation of taking census could be undertaken during the period when the country was facing strict lockdowns, immense loss of lives and the Government was engaged in ensuring that minimum damage is caused to the public at large owing to the pandemic.

It was remarked by the court that going ahead with the census operation during this period would result in compromising the safety of all stakeholders. The court opined that the petitioner has failed to satisfy as to what prejudice would be caused to the public at large by noncompletion of the census operations in the face of these tremendous challenges, which the country is facing. Precisely this was the answer given by the Hon'ble Minister of State Home Affairs to the question when Lok Sabha was convened on 27.07.2021, added the court. The court also added that the reasons so assigned are absolutely valid.

In addition to this, the court mentioned that in this period of almost two years, the world at large has been ravaged by the Covid pandemic. The court noted that the Supreme Court took suo moto cognizance of the situation in the case of In Re :Contagion of Covid-19 Virus in Prisons and has extended the statutory limitations to almost two years. Thus, court opined that the attempt of the petitioner to seek a direction to the Central Government to conduct the census activities in a specified timeframe cannot be considered to be bonafide by any stretch of imagination

Furthermore, the court observed that the census activities are to be undertaken in accordance with the Census Act and it is a sovereign function of the Central Government and there is no reason to question the bonafides of the executing authorities in this regard. The court opined that the petitioner has tried to misuse the process of law by trying to persuade the court to issue a writ to the Central Government for carrying out census in a specified manner and time-frame without there being any material to show that this process is being intentionally delayed.

It was also noted by the court that the objective of the petitioner by filing this writ petition is malafide on the face of it. The court observed that the petitioner has not placed on record any material to satisfy the court as to the sequence when earlier census operations were undertaken. Placing reliance on newspaper reports to persuade the Court regarding the adverse impacts of non-holding of the census cannot satisfy the requirement of proper research and collection of data which is absolutely essential before presenting any writ petition branding it to be public interest litigation, added the court.

Notably, the petitioner has also sought suitable direction to the respondents to declare its intention in continuation of the notification published in official gazette on 28.03.2019 to conduct decennial Census 2021 by way of publication in the official gazette.

The petitioner's counsel argued that since Section 3 of the Act gives an absolute latitude to the Central Government of taking census whenever it considers necessary or desirable to do and is thus, ultra vires because the census operations must be undertaken on a fixed periodical basis i.e., every ten years. He contended that the Central Government has declared its intention to conduct a fresh census during the year 2021 by way of the Notification but till date, no action is forthcoming. He added that the concerned authorities cannot sit tight over the notification and speedy action has to be taken for completing the process which was scheduled to be carried out between 01.04.2020 to 30.09.2020.

Moreover, he relied on certain newspaper reports and urged that the impact of delay in conducting the census is very harmful to the progress and development of the nation. He also referred to the proceedings of Lok Sabha wherein, a question was posed regarding the progress of census operation and a reply was given on behalf of the Ministry that field activities have been postponed until further orders and the Government has not taken any decision to prepare 'National Register of Indian Citizens at the National Level'.

Case Title: Haider Khan v. Union of India & Ors.

Citation: 2022 LiveLaw (Raj) 135

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