11 May 2023 12:41 PM GMT
The Bihar Government today has moved the Supreme Court with a Special Leave Petition (SLP) challenging the Patna High Court's May 4 order putting an interim stay on the caste-based survey in the state. In its order, the HC also stayed dissemination of the information collected to the political parties, calling it a matter concerning right to privacy.The state government has stated in the SLP...
The Bihar Government today has moved the Supreme Court with a Special Leave Petition (SLP) challenging the Patna High Court's May 4 order putting an interim stay on the caste-based survey in the state. In its order, the HC also stayed dissemination of the information collected to the political parties, calling it a matter concerning right to privacy.
The state government has stated in the SLP that HC granted a stay on the caste-based survey when it was on the verge of completion and hence, at this stage, the stay is causing irreparable loss to the State and would adversely affect the entire exercise.
"The State has already completed more than 80% of the Survey work in some districts less than 10% of work is pending. The entire machinery is at ground level. There shall be no harm in completing the exercise subject to final adjudication of the dispute. The time gap to complete the survey would adversely affect the survey since this would not be contemporaneous data...the stay of collection of data itself would cause a huge loss to the State since, if finally the action of the State is upheld, the State would be required to put logistic in place with additional expenditure and burden on public exchequer" the Bihar Government's plea before the Supreme Court states.
The State Government has also challenged the finding of the Patna HC that the exercise of the Bihar Government of the caste-based survey would amount to a census. The SLP states that the power of the State to carry out such a survey is traceable to various entries of List III, Part-3 and Part-4 of the Constitution.
It has further been averred that the collection of caste-based data is a constitutional mandate under Articles 15 and 16 apart from other provisions as explained in the counter affidavit of the State.
It has also been contended that the National and State Commission of Backward Classes Act has been made by the Centre and the States for the identification of backward classes which can be effectively implemented only when there is quantifiable data, which this survey seeks to achieve.
"The provisions of the Act can be effectively implemented only when the State has data based on caste," the SLP of the Bihar Government, filed through AOR Manish Kumar states.
Importantly, the SLP argues that Patna HC's finding that that enumeration of details of caste does not find a place in either List II or List III and that the said power falls in List I is so dangerous that it intends to take away the power of the State to take any action on the basis of caste or identification of caste under Article 342A and Backward Commission Acts of the States.
"The 105th Constitutional Amendment reaffirms the power of the State for identification of caste under Article 342A. This can be achieved if the State has contemporaneous data on caste in the State," the SLP submits.
Lastly, the SLP argues that the findings of the Patna HC at the interim stage are as good as final relief and the writ petition has virtually become infructuous and therefore, the same be heard and disposed of.
The SLP has been moved two days after the Patna High Court clarified that in its May 4 order, it has not set aside the entire ‘Caste-based Survey’, 80% work of which has been completed and that it has only stayed the further work of the survey and has also stayed dissemination of the information collected to the political parties.
The bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad observed thus on May 9 while rejecting Bihar Government's application praying to prepone hearing in the writ pleas challenging the caste-based survey in State. It was the contention of the State Government that no purpose would be served in keeping the matter pending.
It may be noted that hearing the said pleas on May 4, the HC, while putting an interim stay on the caste-based survey in the state, posted the matter for hearing on July 3.
Therefore, seeking an early hearing in the matter, the Bihar Government had moved an Interim Application wherein stating therein that though the High Court's May 4 order is interim in nature, however, it has finally adjudicated the issues under consideration and hence, the matter be disposed of early.
However, on Tuesday, the Court clarified that it has not disposed of the matter finally and it is open to conviction when the matter is heard finally, for which the matter has been for hearing on 03.07.2023.
"In such circumstances, we do not find any reason to advance the hearing to an early date, especially when the matter is posted immediately after the vacation," the Court said,
Further, the Court also rejected the prayer of the Advocate General that the authorities may be permitted to continue the survey with an undertaking that the data would be protected and that the same would not be disclosed as the bench observed that if it did so, it would amount to reviewing the order passed on May 4, which is not permissible in a petition for early hearing.
With this, the Bihar Government's IA was dismissed.
It may be noted that on May 4, hearing a bunch of pleas challenging the Bihar Government’s decision to conduct a caste-based census in the State, the Patna Court, in an interim order, stayed the caste-based survey.
The Court 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 Court said.
"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 Court observed while saying that right to privacy is also an issue which arises in the case.
The bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad also called it a matter of 'grave concern' that the Government intends to share Census data with the leaders of different parties of the State Assembly, the ruling party and the opposition party.
"In such circumstances, we direct the State Government to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed in the writ petition," the Court ordered.