28 Aug 2023 2:52 PM GMT
The Central Government has filed a fresh affidavit in the Bihar caste survey case withdrawing the earlier affidavit which said "No other body under the Constitution or otherwise is entitled to conduct the exercise of either census or any action akin to census".In a second affidavit filed today evening, the Centre said that the above paragraph had "inadvertently crept in"."It is submitted that...
The Central Government has filed a fresh affidavit in the Bihar caste survey case withdrawing the earlier affidavit which said "No other body under the Constitution or otherwise is entitled to conduct the exercise of either census or any action akin to census".
In a second affidavit filed today evening, the Centre said that the above paragraph had "inadvertently crept in".
"It is submitted that the Central Government has filed an Affidavit in the morning today. In the said Affidavit, inadvertently, para 5 has crept in. The said affidavit, therefore, stands withdrawn and this present Affidavit will be the Affidavit on behalf of the Central Government", the latest affidavit stated.
The second 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 the Census.
The affidavit also states -
"The central government is committed to taking all affirmative actions for the upliftment of Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) in accordance with the provisions of the Constitution of India and the applicable law."
On the last 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.
A bench headed by Justice Sanjiv Khanna has been hearing a plea by non-governmental organisations Youth for Equality and 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, including by Nalanda resident Akhilesh Kumar.
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.
Senior Advocate CS Vaidyanathan, leading the charge for the litigants challenging the caste survey, is the only counsel to have made his oral submissions. 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.
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”.
The special leave petition by Ek Soch Ek Prayas has been filed through Advocate-on-Record Surabhi Sanchita, while Akhilesh Kumar's plea has been filed through Advocate-on-Record Tanya Shree.
Clarification: This story was initially published on the basis of the first affidavit filed by the Centre and has since been amended in view of the subsequent development.
Ek Soch Ek Paryas v. Union of India | Special Leave Petition (Civil) No. 16942 of 2023 and other connected matters