Supreme Court Adjourns Hearing Of Bihar Caste Survey Case Until October

The Supreme Court on Wednesday adjourned the hearing in a batch of pleas doubting the constitutionality of the caste-based survey conducted by the Bihar government last month. A bench of Justices Sanjiv Khanna and SVN Bhatti is 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, including by Nalanda resident Akhilesh Kumar.The bench today directed the matter to be relisted in light of a letter circulated by the standing counsel of the State of Bihar requesting an adjournment. This was despite one of the petitioners opposing the adjournment request. The counsel began, "Last time, Senior Advocate Shyam Divan made a statement in open court that the government would not publish...""No, you are wrong," Justice Khanna sharply retorted, "He said it has already been published. That it is already in the public domain. What he said is that the data is currently being analysed."The counsel tried again, "Your Lordships, these petitions will become infructuous. They are going to publish the data.""The data had already been uploaded. Only the analysis and break-up of data is going on," Justice Khanna pointed out, before directing the hearing to be adjourned till the week commencing from October 3. "This is the earliest possible date," the judge said, in response to the counsel's protests.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. On the last 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. Last week, 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.Last month, 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.In a recent development related to this matter, another petition has been filed in the Supreme Court over the Bihar government including ‘hijra’, ‘kinnar’, ‘kothi’, and ‘transgender’ as an item in the caste list, while conducting its caste-based survey last month.BackgroundUnder the scanner in this litigation is a decision of the Chief Minister Nitish Kumar-led Bihar...

Supreme Court Adjourns Hearing Of Bihar Caste Survey Case Until October

Awstika Das

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