Bihar Caste Survey : 'To What Extent Can Govt Withhold Survey Data Break-Up?' Supreme Court Asks During Hearing

The Supreme Court on Tuesday (January 2), while hearing a clutch of public interest litigation (PIL) petitions challenging the constitutionality of the caste-based survey conducted by the State of Bihar, questioned the extent to which the government could withhold the break-up of the survey data. A division bench of Justices Sanjiv Khanna and Dipankar Dutta is currently 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 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.The bench today told the counsel for the parties that the legal issue, i.e., the high court judgment's correctness, would have to be examined. In the meantime, the survey report that has been published was asked to be filed. Senior Advocate Raju Ramachandran urged the court to hear the petitioners' prayer for interim relief next week, saying, "We wish to argue for interim relief once we place the census report on record. The urgency is that the report is being implemented, and reservation has been increased. This has been challenged before the Patna High Court. Since things are moving apace, in the meantime...This has been pending here since August. We would like to argue for interim relief. My only request is, hear the interim application next week.""It will not be possible. There are some limitations on this side as well. We will look into your prayer," Justice Khanna said, declining the senior counsel's request for an urgent hearing. During the hearing, the judge also revealed that he was concerned about the public accessibility of the break-up of the survey findings. "What I was concerned about more than census report is that the breakdown of data is not normally made available to the public, which leads to a lot of problems. The question is to what extent can the government withhold the breakdown of the data?"Appearing for the Bihar government, Senior Advocate Shyam Divan interjected, "The survey is available in the public domain.""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. He also began expressing reservations over issuing a stay order. "Once the high court has given its stamp of approval to the census activity, then we will not like to, once the census has been conducted..."Interjecting, Solicitor General Tushar Mehta pointed out, "This is not a census as understood under our Constitution.""Which is why it's illegal, My Lords," Senior Advocate Gopal Sankaranarayanan, also representing one of the petitioners, chimed in, "The state government cannot do it.""You are right, that was the wrong term," Justice Khanna admitted, in response to the solicitor-general's interjection. Adjourning the hearing, he then pronounced, "Re-list in the week commencing January 29, 2024."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...

Bihar Caste Survey : 'To What Extent Can Govt Withhold Survey Data Break-Up?' Supreme Court Asks During Hearing

Awstika Das

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