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

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 Court

On 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 Court

Senior Advocate CS Vaidhyanathan, appearing on behalf of Youth for Equality, argued that the 2017 Puttaswamy ruling laid down the requirement that privacy could only be impinged upon by a just, fair, and reasonable law which has to stand the test of proportionality, and which has a legitimate aim - 

"There is no law at all. It is by a mere executive order by which this survey was sought to be done. This court has taken the view in a number of cases that where what is sought to be impinged upon is a fundamental right, a mere executive order will not be sufficient. Puttaswamy's case lays down the clear requirement of a law. However, this argument was summarily dismissed by the high court without even considering it."

He also pointed out that the executive order did not set out the aim. "Reliance is placed on the governor's speech. This court has said in Mohinder Singh Gill that an executive order will have to speak for itself and extraneous material cannot be relied on. This is specifically argued by my learned friend Aparajita and not considered."

Justice Khanna asked, "How is Mohinder Singh Gill applicable? This is not a quasi-judicial order. This is an administrative decision. In administrative decisions, the thought process, things written on the file, etc...The reasons are not be communicated and given to the public."

In response to the query from the bench, Vaidyanathan clarified that the governor's speech that the government had placed reliance on was made after the order was passed. "Therefore, there is no contemporaneous documentary evidence, including the files, and cannot be supported."

The senior counsel then highlighted that the exercise was notified by the state government through the publication of a notification in the Official Gazette and did not enjoy the sanction of any statute. "A mere notification cannot take the nature of law as contemplated by Puttaswamy. In Thakur Bharat Singh, this court, after noting that India has adopted the British system under which the rule of law prevails and not the continental system, the court held that ever act done by the government or by its officers must, if it is to operate to the prejudice of any person must, be supported by some legislative authority. Where we are talking about the right of privacy being invaded...There is no law made by the State to enable them to impinge upon this privacy. When a fundamental right is sought to be curtailed, it has to be statute law. It cannot be an executive notification."

"In what way is the right to privacy affected when data relating to each individual's caste or sub-caste is not released?" Justice Khanna asked, before pointing out that only aggregated data would be released in the form of cumulative figures. 

In support of his contention, Vaidyanathan took the court through the 17 questions in the survey questionnaire, which included questions on gender, religion, educational qualifications, profession, monthly income, availability of internet connection, ownership of computer or laptop, motor vehicle, agricultural land, and residential land, and residential condition, besides asking the respondents about their caste location. 

"Which question did you feel impinged on the respondents' right to privacy under Article 21?" Justice Khanna asked the senior counsel. He also observed, "Caste is known to their neighbours...Unfortunately in Bihar and other places...In Delhi, we do not know. I will be very frank."

"Someone being attributed to one religion, gender, or caste by birth is completely contrary to today's thinking," Vaidyanathan argued. Pointing out that it was mandatory for the respondents to truthfully divulge all information sought in the survey questionnaire, the senior counsel shot the bench a question on the legality of being compelled to disclose private details. "How can anyone be compelled to disclose their religion, gender, caste, and various other private details? Only thing that is voluntary is the Aadhar card. Everything else is mandatory."

Justice Khanna interjected. "There's no penalty if you do not fill it up."

Vaidyanathan replied, "The question is, can someone be asked to give these details without a law?"

With this, he concluded his brief submissions and the bench adjourned the hearing until Monday, August 21.

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