Supreme Court Turns Down Plea To Halt Bihar Caste Survey; Adjourns Hearing Till August 18

A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing a plea by the non-governmental organisation ‘Ek Soch Ek Prayas’ against 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”. Other petitions have also been filed challenging the high court's decision.

Today, Justice Khanna directed all the petitions to be listed together this Friday and adjourned the hearing. A counsel attempted to persuade the court that the pleas may become infructuous till then since the Bihar government had directed the caste survey to be concluded post-haste after receiving the high court's approval. "On August 1, the Patna High Court passed the impugned order. On the same day, late at night, [the government] issued notifications to complete the caste-based 'census' within three days."

Justice Khanna stopped the counsel. "Wait until this Friday."

The judge also declined to grant any interim relief as requested by Senior Advocate Mukul Rohatgi, saying, "That will be an indirect stay without hearing other side or application of mind. I don't want that. On August 18, we will hear you out."

On the last day as well, the bench had adjourned the hearing at the behest of senior counsels appearing for the petitioners. But before it was adjourned, another counsel requested the bench for a ‘status quo order’. “In the meantime, I am requesting the bench for a direction that the status quo would be maintained.”

Justice Khanna expressed his surprise. “What is this? There is no question of status quo. We haven’t even issued notice. We haven’t heard you. You are jumping the gun,” the judge said before pointing out that according to the high court’s judgment, 80 percent of the work related to the survey had already been completed. “Today, it will be 90 percent,” Justice Khanna added before directing the matter to be re-listed on the following Monday, i.e., today.

Background

The last time a comprehensive caste-based census was conducted was in 1931 – under a British-led government. With caste being one of overwhelming forces shaping Indian electoral politics, the idea of collecting data based on this closed social stratification has inevitably sparked controversy. Under the scanner in this litigation is a decision of the Chief Minister Nitish Kumar-led Bihar government to conduct a caste-based survey that was launched on January 7 of this year, in order to digitally compile data on each family – from the panchayat to the district-level – through a mobile application.

After initially issuing a temporary stay in May on the caste-based survey being conducted by the Bihar government, earlier this month, the Patna High Court delivered its verdict upholding the exercise as ‘perfectly valid initiated with due competence’ and dismissed the petitions challenging the caste-based survey. In its 101-page judgment, the high court concluded that the state’s contention could not be brushed aside that the “purpose [of the survey] was to identify 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”.

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. 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.”

The special leave petition by Ek Soch Ek Prayas has been filed through Advocate-on-Record Surabhi Sanchita.

Case Details

Ek Soch Ek Paryas v. Union of India | Special Leave Petition (Civil) No. 16942 of 2023