Bihar Caste-Survey : Supreme Court To Consider To What Extent State Can Collect Citizen's Data

The Supreme Court today granted leave in a batch of petitions challenging the constitutionality of a caste-based survey conducted by the State of Bihar in 2023. The matter has been posted to September 4.

The bench of Justices Sanjiv Khanna and Sanjay Kumar was dealing with special leave petitions filed by non-governmental organizations Youth for Equality, Ek Soch Ek Prayas and others against a decision of the Patna High Court upholding the Bihar government's decision to undertake caste-based survey.

Notably, on earlier occasions, the top court 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. When the matter was listed in January, it questioned the extent to which government can withhold the break-up of the survey data.

Today, Senior Advocate Aparajita Singh (appearing for petitioner) submitted that survey can be conducted, but it cannot examine each and every citizen, much less impose caste identity (in violation of Indra Sawhney judgment). "It is not as if we did not have affirmative action in the country before this survey", she said, while clarifying that the petitioner was not opposing affirmative action.

Singh further invoked the right to privacy to challenge the collection of data. "If as a citizen, I don't want a caste identity, can the state compel me to disclose my caste identity?", she asked. On this, Justice Khanna replied, "if that is your argument, they (state) have a very simple answer - 99.9% people do not oppose that...right to privacy is a right given to an individual...a person can waive it".

Referring to a socio-economic caste census conducted by the Union, Singh apprised that 11% people in Maharashtra said "no caste". She pointed out that there was no such option in the Bihar survey; if a person refuses to tell, the authorities can ask his neighbor, and "this is the violation". Singh also emphasized that in the Aadhaar judgment, the Supreme Court has held caste to be intrinsic to right to privacy, as personal sensitive information.

After hearing Singh briefly, the bench outlined certain issues that would arise for consideration. These included:

(i) Whether executive of a state can conduct surveys/data collection for purposes of legislation? In what cases such exercise would be barred? "Please also keep in mind the doctrine of principle of proportionality, which is now accepted in India. In fact, there are certain countries where no legislation can be introduced without data...", J Khanna said.

(ii) In which cases it will be wrong and contrary to law? "Normally, data collection, if it is done for legislation or policy making, may require caste data...it may require even data sometimes to point out what are the ills and the wrongs in society...in which cases we will put the foot down and say this data cannot be collected?", posed Khanna J. At one point, the judge also expressed that if survey is of a particular kind and violates basic structure of the Constitution, it may be barred.

(iii) If data is collected, to what extent citizens have a right to ask for breakup or division of data (so they can draw conclusions), or to check the authenticity and reliability of data?

The matter was ultimately adjourned due to paucity of time. Senior Advocate Shyam Divan appeared for the State of Bihar.

Background

Under the scanner is a decision of Chief Minister Nitish Kumar-led Bihar government to conduct a caste-based survey that was launched on January 7, 2023, in order to digitally compile data on each family – from the panchayat to the district-level – through a mobile application.

In August, 2023, the exercise was upheld by the Patna High Court as 'perfectly valid initiated with due competence' and petitions challenging the caste-based survey dismissed. In its 101-page judgment, the high court concluded that the state's contention that “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” could not be brushed aside.

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”.

Subsequently, multiple petitions were filed in the Supreme Court challenging the decision of the Patna High Court. For a detailed report on the developments so far, click here.

Case Details: Ek Soch Ek Paryas v. Union of India | Special Leave Petition (Civil) No. 16942 of 2023 (and connected matters)