Won't Stay Bihar Caste Survey Unless Prima Facie Case Is Made, Says Supreme Court; Centre Seeks To Submit Its Views

A bench of Justices Sanjiv Khanna and SVN Bhatti was 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.

SG Mehta today sought the bench’s permission to file an affidavit placing on record the central government’s views on the legality of the survey. The law officer said,“This may have some ramifications. Please consider my request to place on record my view – not that I am opposing one side or the other – on the legal position of this.”

While the court granted the Centre permission to file an affidavit, it reiterated its earlier stance on issuing a temporary halt to the caste survey. “You file an affidavit,” Justice Khanna told SG Mehta, before adding –

“We are not staying anything. We are very clear about this. Unless a prima facie case is made out, we will not stay it.”

When Senior Advocate Mukul Rohatgi, appearing for one of the petitioners, persisted in arguing that the court ought to grant a stay on the publication of the data, Senior Advocate Shyam Divan interjected to clarify that the question of publishing did not arise. He argued, “Where’s the question of publishing the data? The data has been uploaded and now it will be analysed.”

“Whatever is done, is done,” Rohatgi said, “But they should not take a step further.”

“No,” Justice Khanna said, once again declining the request to stay the survey. He also explained, “There are two aspects. One is the collection of data; the second is analysis. It is the second part that is more difficult and problematic. The first part today is virtually over.”

“If we are right, the first part also should be removed,” Rohatgi insisted.

“Alright, we will see that,” Justice Khanna said.

On earlier occasions as well, the court refused to halt the ongoing process without first hearing the parties. During the last hearing, the Justice Khanna-led bench unequivocally stated that no stay orders are going to be issued without any hearing and unless a prima facie case is established, reiterating its stance which it had earlier declared on August 7 and August 14.

On Friday, 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.

Background

The last time a comprehensive caste-based census was conducted was in 1931 – under a British-led government. With caste being one of overwhelming forces shaping Indian electoral politics, the idea of collecting data based on this closed social stratification has inevitably sparked controversy. 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”.

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. The petitioners have, inter alia, reiterated before the top court that the exercise being carried out by the Bihar government amounted to a census that only the Union is empowered to carry out owing to the operation of Entry 69 of the Seventh Schedule’s List I read with the Census Act, 1948. Kumar, in his petition filed through Advocate-on-Record Tanya Shree, has argued:

“In terms of the constitutional mandate, only the Union Government is empowered to conduct a census. In the present case, the State of Bihar has sought to usurp the powers of the Union of India, by merely publishing a notification in the official gazette. This notification is against the constitutional mandate of distribution of powers between the state and the union legislature as enshrined under Article 246 of the Constitution read with Schedule VII of the Constitution and ultra vires the Census Act, 1948 read with Census Rules, 1990 and is therefore void ab initio.”

The short question of constitutional importance, the petitioner asserts, is whether the government's June 2022 notification announcing a caste-based survey using its own resources and the district magistrate's appointment in a supervisory role consequent to the announcement, are within the constitutional mandate of the separation of power between the State of Bihar and the Union of India. The petitioner insists that the Patna High Court 'erroneously' dismissed the writ petition “without taking into consideration the fact that the state government lacked the competence to notify a caste-based survey”.

Youth for Equality, in its petition filed through Advocate-on-Record Rahul Pratap, has assailed the high court's verdict on the ground that it runs contrary to the 2017 KS Puttaswamy judgment of the Supreme Court. “[We] are not challenging the power of the State to take affirmative action but the manner in which the personal data is being collected by the state under an executive order contrary to the law laid down on data collection by a constitution bench in KS Puttaswamy v. Union of India.”

In this connection, the petitioner-organisation has argued:

“The proposed exercise mandatorily pigeon-holes each and every citizen into one caste or another under a caste list prepared by the state. The imposition of a caste identity on all the citizens irrespective of whether they seek to avail of the state benefit or not is constitutionally impermissible being contrary to the a) right to identity b) right to dignity c) right to informational privacy and d) right of choice of a citizen under Article 21.”

The special leave petition by Ek Soch Ek Prayas has been filed through Advocate-on-Record Surabhi Sanchita.

Case Details

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