Supreme Court Refuses To Interfere With High Court's Stay On Bihar Caste Survey As HC Is Set To Hear Main Matter In July

The Supreme Court on Thursday adjourned the petition filed by State of Bihar challenging the interim order of the Patna High Court staying Bihar Government’s decision to conduct a caste-based survey in the State.

A Bench comprising Justice AS Oka and Justice Rajesh Bindal said it would keep the matter pending as the High Court is slated to take it up on 3rd July. It said if for any reason the writ petition is not taken up by the High Court, it will consider the arguments on July 14.

"Why should we interfere at this stage. The High Court will go into it on 3rd July...High Court has recorded prima facie findings. We are not saying we will affirm the findings or we would interfere. We are only saying that it is difficult to grant today. We are not saying that we will not hear it," Justice Oka clarified.

Yesterday, when the matter came up before a Bench comprising Justice BR Gavai and Justice Sanjay Karol, Justice Karol recused from hearing the matter. Justice Karol, who was the Chief Justice of Patna High Court before his elevation to the Supreme Court on February 6, said that he had dealt with the matter at the High Court.

Senior Advocate Shyam Divan appearing for the Bihar government argued that resources had already been mobilized for the survey and the High Court ought not to have stayed it. He submitted the process is essential to procure "quantifiable data" for effective formulation of State policies.

However, the bench expressed it will have to determine if in the name of survey, the State is trying to conduct a caste census. "A lot of documents show it is census only." Justice Bindal remarked during the hearing.

It ordered,

"We direct that this petition be listed on 14th July. If for any reason hearing of the Writ Petition does not commence before the next date we will hear further submission canvassed by the Senior Counsel for the petitioner."

Divan then submitted a survey, which is voluntary in nature, is distinct from a census, which is mandatory. "This is the first point of distinction. For census you have respond. If you don’t you are met with penalty. Not so for survey. There are three constitutional entries in List III which supports inquiries and collection of data."

With respect to privacy related concerns, Divan submitted the State has given adequate assurances to secure confidentiality of the data. "Data would be stored only on the servers of the Govt of Bihar and not on any other cloud...It is a full proof system. We are open to suggestion by the Court."

However, Justice Oka pointed that the High Court has found several difficulties with the survey. "The manner in which the data has to be counter-checked. High Court found fault with that. This all requires to be tested," he said.

The High Court had prima facie said that caste-based survey amounts to a census which the State Government has no power to carry out.

"Prima facie, we are of the opinion that the State has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament", the High Court said.

The High Court Bench comprising Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad had observed that the right to privacy is also an issue which arises in the case.

“We also see from the notification issued that the Government intends to share data with the leaders of different parties of the State Assembly, the ruling party and opposition party which is also a matter of great concern.”

The matter would be heard next by the High Court on 3rd July, 2023.

The High Court’s decision came 6 days after the Supreme Court asked the Patna High Court to consider, decide and dispose of the interim application of 'Youth for Equality' (petitioner before the High Court) at the earliest, preferably within a period of 3 days of filing of the application and mentioning of the same before the Chief Justice of the High Court.

The Bihar Government launched the caste survey on 7th January, 2023. The plan is to compile data on each family digitally through a mobile application in the survey from the panchayat to the district level. The petitioner, essentially, seeks to quash the State Government’s notification on the ground that the subject of the census falls in List 1 of the Seventh Schedule of the Constitution of India and only the Union Government is contemplated to conduct the census.

The petition avers that as per the broad scheme of the Census Act 1948, only the central government has the power to make rules, appoint Census Staff, requisition premises for taking censuses, payment of compensation, power to obtain information, a delegation of functions of the Central Government with regard to requisitioning, etc.

It further argues that the Census Act of 1948 does not contemplate a caste-based census. The government notification was assailed on the ground that it "violated the basic structure of the Constitution". The petition assails State government's notification as illegal and unconstitutional and as an attempt to strike at the unity and integrity of the country and to create social disharmony among the people on caste lines for petty vote bank politics.

Senior Advocate, Aparajita Singh; Advocate, Vrinda Bhandari and Advocate-on-Record, Mr. Rahul Pratap appeared on behalf of the respondent-caveator.

[Case Title: State of Bihar And Ors. v. Youth for Equality And Ors. SLP(C) No. 10404/2023]

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