Supreme Court Schedules Final Hearing Of Pleas Challenging Bihar Govt's Caste Survey In April

The Supreme Court on Monday (February 5) scheduled in April the final hearing of a clutch of public interest litigation (PIL) petitions challenging the constitutionality of the caste-based survey conducted by the State of Bihar.A division bench of Justices Sanjiv Khanna and Dipankar Dutta was hearing special leave petitions filed by non-governmental organisations Youth for Equality and Ek Soch Ek Prayas and others against a decision of the Patna High Court delivered on August 2 last year to uphold the Bihar government's decision to undertake caste-based survey. Notably, the court has consistently refused to pass any order of stay or status quo to restrain the State from publishing or acting on the caste survey data before hearing the parties at length. Although disinclined to issue a temporary stay, during the last hearing, the bench did raise concerns relating to the failure to publicly disclose the break-up of the survey data. "If it is available fully, then that's a different matter. The break-up of data should normally be made available to allow people to challenge a particular inference," Justice Khanna observed. The hearing today was adjourned by the court summarily, with an instruction to re-list it in the week commencing from April 16, 2024.Appearing for one of the petitioners, Senior Advocate Aparajita Singh asked by way of clarification, "Your Lordships are listing it for final disposal?"In response to this question, Justice Khanna nodded in assent. When he was urged by another counsel to consider and allow an interim application filed in one of the special leave petitions, the judge said, "We'll hear you when it comes. Nothing is being allowed. We'll take it up on that day."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. In August, 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.On another 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. Even while adjourning the hearing to allow the Centre time to file its response, the bench reiterated its stance against granting a temporary stay on the survey.Soon after, the Centre submitted not one, but two affidavits, in quick succession. The latest affidavit was submitted retracting the earlier one which stated that no entity other than the central government had the right to conduct a census or 'any action akin to census'. The second affidavit clarified that this statement - which reportedly provoked political outrage - had been included inadvertently. The latest 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 a census. The union government has also restated its commitment to uplifting people belonging to Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC), and Other Backward Classes (OBC) in accordance with the Constitution and applicable laws.In October, the Bihar government published the caste survey data, revealing that extremely backward classes (EBC) constituted 36.01 percent of the state's population, while other backward classes (OBC) contributed an additional 27.12 percent. Collectively, these groups make up 63.13 percent of the 13-crore population of the state. Among other things, the data also shows that 20 percent of the population belongs to...

Supreme Court Schedules Final Hearing Of Pleas Challenging Bihar Govt's Caste Survey In April

Awstika Das

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