Bihar Caste-Based 'Census' | Petitions Filed in Supreme Court Challenging Patna High Court Upholding State Govt's Survey

Multiple petitions have been filed in the Supreme Court of India challenging the decision of the Patna High Court to uphold the Bihar government's caste-based survey. This verdict was delivered by a division bench of the high court, which rejected the contention that an attempt to collect data on the basis of caste amounted to a census and held the exercise to be "perfectly valid initiated with due competence". The petitioners include Akhilesh Kumar and non-governmental organisations (NGO) 'Ek Soch Ek Prayas' and 'Youth for Equality'. 

The petitioners have, inter alia, reiterated before the top court that the exercise being carried out by the Bihar government amounted to a census that only the Union is empowered to carry out owing to the operation of Entry 69 of the Seventh Schedule’s List I read with the Census Act, 1948. Kumar, in his petition filed through Advocate-on-Record Tanya Shree, has argued:

"In terms of the constitutional mandate, only the Union Government is empowered to conduct a census. In the present case, the State of Bihar has sought to usurp the powers of the Union of India, by merely publishing a notification in the official gazette. This notification is against the constitutional mandate of distribution of powers between the state and the union legislature as enshrined under Article 246 of the Constitution read with Schedule VII of the Constitution and ultra vires the Census Act, 1948 read with Census Rules, 1990 and is therefore void ab initio."

The short question of constitutional importance, the petitioner asserts, is whether the government's June 2022 notification announcing a caste-based survey using its own resources and the district magistrate's appointment in a supervisory role consequent to the announcement, are within the constitutional mandate of the separation of power between the State of Bihar and the Union of India. The petitioner insists that the Patna High Court 'erroneously' dismissed the writ petition "without taking into consideration the fact that the state government lacked the competence to notify a caste-based survey".

Youth for Equality, in its petition filed through Advocate-on-Record Rahul Pratap, has assailed the high court's verdict on the ground that it runs contrary to the 2017 KS Puttaswamy judgment of the Supreme Court. "[We] are not challenging the power of the State to take affirmative action but the manner in which the personal data is being collected by the state under an executive order contrary to the law laid down on data collection by a constitution bench in KS Puttaswamy v. Union of India." In this connection, the petitioner-organisation has argued:

"The proposed exercise mandatorily pigeon-holes each and every citizen into one caste or another under a caste list prepared by the state. The imposition of a caste identity on all the citizens irrespective of whether they seek to avail of the state benefit or not is constitutionally impermissible being contrary to the a) right to identity b) right to dignity c) right to informational privacy and d) right of choice of a citizen under Article 21."