'Everyone Knows Their Neighbour's Caste in Bihar': Supreme Court Asks How Caste Survey Violates Right to Privacy

The Supreme Court on Friday, while hearing a challenge against the Bihar government's caste-based survey, questioned whether the right to privacy under Article 21 of the Constitution would be affected since only cumulative data, and not personal data relating to each participant would be released by the government. Justice Sanjiv Khanna also asked whether it was a violation of the participants' privacy when a caste survey is carried out in a state like Bihar where everyone knows their neighbour's caste.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.Instead of issuing notice first, the court decided to start hearing the petitioners' submissions today. Right at the beginning, Justice Khanna told the counsel, "If we issue notice, then the question of interim relief comes up. This survey has also been completed. Be prepared to argue. Crystallise your arguments. If we issue notice, it will come up again in October or November. You will be pressing for stay, and they will be opposing it. So, let's finish it off - one way or the other. If we find that something is made out, we can pass an appropriate order. If we think no case is made out, we will pass a short order in acceptance."After Senior Advocate Shyam Divan, appearing for the State of Bihar, informed the bench that the government had completed the exercise. Senior Advocate Aparajita Singh urged the court to grant a stay on the publication of the data. "There are pressing issues over the right to privacy," she said.Justice Khanna replied, "We will not stay something without finding that a good prima facie case has been made out. There is a judgment in their favour. The exercise has been completed. Whether you like it or not, the data has been uploaded."On earlier occasions too, the court had refused to halt the ongoing process without hearing the parties. During the last hearing, the court directed all the petitions to be listed together on Friday, August 18, i.e., today, and adjourned the proceedings. Before the hearing was adjourned, a counsel attempted to persuade the court that the pleas may become infructuous till then since the Bihar government had directed the caste survey to be concluded post-haste after receiving the high court's approval. Senior Advocate Mukul Rohatgi also tried to convince the bench. Their efforts were unsuccessful and the court did not agree to put a stop to the survey.This was the second time the court declined to grant any interim relief to the petitioners. Earlier in the month, when requested for a 'status quo order', Justice Khanna expressed his surprise. “What is this? There is no question of status quo. We haven’t even issued notice. We haven’t heard you. You are jumping the gun,” the judge said before pointing out that according to the high court’s judgment, 80 percent of the work related to the survey had already been completed. “Today, it will be 90 percent,” Justice Khanna added before adjourning the hearing.Caste data will not be published; no concerns of infringement of the right to privacy: State of Bihar tells Supreme CourtOn the apprehension of a violation of privacy rights, Divan assured that the caste data was not going to be published. Justice Khanna, in response, pointed out the difference between individual and aggregated data. Typically, in surveys, privacy is protected through the use of aggregate, de-identified, and anonymous data. Despite this there may be concerns surrounding the right to privacy. Justice Khanna explained - "There are two things: individual data, which will not be disclosed because it is entitled to protection; and break up of data. As opposed to raw data, a break-up of data and subsequent analysis will give a more accurate picture. Obviously, individual figures, names, and other such details will not be disclosed.""What is the apprehension then?" Divan asked."They have an apprehension which is why they have come to the court," the judge replied. Citing the nine-judge bench's decision in KS Puttaswamy (2017) which held the right to privacy to be a facet of the right to life, Justice Khanna said, "There is such a big judgement on this issue. This court has written a longish judgment and there are various legal issues involved."Fundamental right to privacy cannot be infringed by a government notification: Youth for Equality tells Supreme CourtSenior Advocate CS Vaidhyanathan, appearing on behalf of Youth for Equality, argued that the 2017 Puttaswamy ruling laid down the requirement...

'Everyone Knows Their Neighbour's Caste in Bihar': Supreme Court Asks How Caste Survey Violates Right to Privacy

Awstika Das

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