Bihar Caste Survey : 'To What Extent Can Govt Withhold Survey Data Break-Up?' Supreme Court Asks During Hearing
The Supreme Court on Tuesday (January 2), while hearing a clutch of public interest litigation (PIL) petitions challenging the constitutionality of the caste-based survey conducted by the State of Bihar, questioned the extent to which the government could withhold the break-up of the survey data. A division bench of Justices Sanjiv Khanna and Dipankar Dutta is currently hearing special...
The Supreme Court on Tuesday (January 2), while hearing a clutch of public interest litigation (PIL) petitions challenging the constitutionality of the caste-based survey conducted by the State of Bihar, questioned the extent to which the government could withhold the break-up of the survey data.
A division bench of Justices Sanjiv Khanna and Dipankar Dutta is currently hearing special leave petitions filed by non-governmental organisations Youth for Equality and Ek Soch Ek Prayas and others against a decision of the Patna High Court delivered on August 2 to uphold the Bihar government's decision to undertake caste-based survey. Notably, the court has consistently refused to pass any order of stay or status quo to restrain the State from publishing or acting on the caste survey data before hearing the parties at length.
The bench today told the counsel for the parties that the legal issue, i.e., the high court judgment's correctness, would have to be examined. In the meantime, the survey report that has been published was asked to be filed. Senior Advocate Raju Ramachandran urged the court to hear the petitioners' prayer for interim relief next week, saying, "We wish to argue for interim relief once we place the census report on record. The urgency is that the report is being implemented, and reservation has been increased. This has been challenged before the Patna High Court. Since things are moving apace, in the meantime...This has been pending here since August. We would like to argue for interim relief. My only request is, hear the interim application next week."
"It will not be possible. There are some limitations on this side as well. We will look into your prayer," Justice Khanna said, declining the senior counsel's request for an urgent hearing. During the hearing, the judge also revealed that he was concerned about the public accessibility of the break-up of the survey findings. "What I was concerned about more than census report is that the breakdown of data is not normally made available to the public, which leads to a lot of problems. The question is to what extent can the government withhold the breakdown of the data?"
Appearing for the Bihar government, Senior Advocate Shyam Divan interjected, "The survey is available in the public domain."
"If it is available fully, then that's a different matter. The break-up of data should normally be made available to allow people to challenge a particular inference," Justice Khanna observed. He also began expressing reservations over issuing a stay order. "Once the high court has given its stamp of approval to the census activity, then we will not like to, once the census has been conducted..."
Interjecting, Solicitor General Tushar Mehta pointed out, "This is not a census as understood under our Constitution."
"Which is why it's illegal, My Lords," Senior Advocate Gopal Sankaranarayanan, also representing one of the petitioners, chimed in, "The state government cannot do it."
"You are right, that was the wrong term," Justice Khanna admitted, in response to the solicitor-general's interjection. Adjourning the hearing, he then pronounced, "Re-list in the week commencing January 29, 2024."
What has happened so far?
The Supreme Court has refused to temporarily halt the survey, which has now been completed, without first hearing the parties. It has, on multiple occasions, reiterated its stance against issuing any stay order in the absence of a prima facie case. In August, Senior Advocate CS Vaidyanathan led the charge for the litigants challenging the caste survey. Appearing on behalf of NGO Youth for Equality, the senior counsel argued that the 2017 Puttaswamy ruling on the fundamental right to privacy necessitated a just, fair, and reasonable law to infringe on privacy. Such a law must additionally stand the test of proportionality and have a legitimate aim. An executive order of the government could, therefore, not take the place of such a law, even more so when it did not indicate at all the reasons for undertaking this exercise. Apart from this, Vaidyanathan also raised privacy concerns over the mandatory disclosure requirement under the survey. In response, the bench questioned if the right to privacy under Article 21 of the Constitution would be impacted, given the government's plan to release only aggregated, not individual, data. Justice Sanjiv Khanna also asked if conducting a caste survey in a state like Bihar, where everyone knows their neighbour's castes, breached participant's privacy.
On another occasion, Solicitor-General for India Tushar Mehta sought the court's permission to file an affidavit to place on record the central government's views on the legal position surrounding such a survey, saying that it might have some 'ramifications'. The law officer, however, quickly clarified that the Centre was neither opposing nor supporting the litigation. Even while adjourning the hearing to allow the Centre time to file its response, the bench reiterated its stance against granting a temporary stay on the survey.
Soon after, the Centre submitted not one, but two affidavits, in quick succession. The latest affidavit was submitted retracting the earlier one which stated that no entity other than the central government had the right to conduct a census or 'any action akin to census'. The second affidavit clarified that this statement - which reportedly provoked political outrage - had been included inadvertently. The latest affidavit has however retained the submission that a census is a statutory process governed by the Census Act of 1948, which was enacted in the exercise of the powers under Entry 69 of List I of the Constitution's Seventh Schedule and that the said Act empowers only the central government to conduct a census. The union government has also restated its commitment to uplifting people belonging to Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC), and Other Backward Classes (OBC) in accordance with the Constitution and applicable laws.
In October, the Bihar government published the caste survey data, revealing that extremely backward classes (EBC) constituted 36.01 percent of the state's population, while other backward classes (OBC) contributed an additional 27.12 percent. Collectively, these groups make up 63.13 percent of the 13-crore population of the state. Among other things, the data also shows that 20 percent of the population belongs to scheduled castes (SC), while 1.6 percent belongs to scheduled tribes (ST). Following the release of this data, the Nitish Kumar-led state government announced a 10 percent reservation for economically weaker sections (EWS) in the state's judicial services, as well as in government-run law colleges and universities.
In a recent development related to this matter, another petition was filed in the Supreme Court over the Bihar government including 'hijra', 'kinnar', 'kothi', and 'transgender' as an item in the caste list, while conducting its caste-based survey. However, after the top court expressed its disinclination to entertain a petition pointing to a clarification issued later by the government allowing non-binary persons to disclose their gender identities in a separate column, trans activist Reshma Prasad withdrew the petition.
Background
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 high 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.
Case Details
Ek Soch Ek Paryas v. Union of India | Special Leave Petition (Civil) No. 16942 of 2023 and other connected matters