Supreme Court Disposes Of Bihar Govt's Plea Against Stay On Caste-Based ‘Census’ In View Of Patna HC Reserving Judgment

A bench of Justices BR Gavai and Prashant Kumar Mishra was hearing the plea by the Bihar government against the high court’s interim order. The temporary stay had been ordered by a division bench of the Patna High Court while it determined if the state government was competent to conduct the survey. Today, the top court disposed of the petition after the counsel appearing for both sides agreed that the matter had become infructuous since the high court had already reserved its verdict.

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.

In the same month, a clutch of petitions were filed before the Supreme Court urging it to quash the state government’s notification to conduct caste-based census. However, a bench headed by Justice Gavai refused to entertain the pleas at the very outset, orally observing that this was not public – but ‘publicity’ – interest litigation. “Go to the high court,” the judge told the petitioners, who then agreed to withdraw their petitions.

Subsequently, the question of the state government’s competence to conduct such an exercise was back before the Supreme Court again in April, when a special leave petition (SLP) was filed against the refusal of the Patna High Court to grant interim relief in the petitions pending before it. Even though the apex court refused to entertain the SLP, a bench headed by Justice MR Shah not only granted the petitioners liberty to submit an application for interim relief, but also directed the Patna High Court to decide the matter within three days from the filing of such application and it being mentioned before the chief justice’s court.

Accordingly, in the following week, a division bench of the Patna High Court comprising Justices K Vinod Chandran and Madhuresh Prasad heard the petitioners’ application for interim stay and agreed to suspend the survey being conducted by the state government, on the basis of a prima facie conclusion that it amounted to a census which 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.

The Bihar government sought to defend this move claiming that caste data would enable it to shape its policies in accordance with the backwardness of citizens and design its affirmative action programmes more effectively. But this contention did not find favour with the high court. “We are afraid the impugned exercise is not of identification of backwardness but of the caste- status of the natives of the State of Bihar,” the bench observed in its May 4 order, before adding, “This is explicit from the requirement in the guidelines to ascertain the caste of an individual, from the head of the family, relative or neighbour. As far as a child is concerned, the guidelines insist for ascertainment of the father’s caste from the mother.”

In addition to this, the bench also shared misgivings about the question of the consent of the people being surveyed – since the plan involved data being collected from the head of each family – as well as data security and integrity in the context of the right to privacy. In particular, the bench noted, “We also see from the notification issued that the government intends to share data with the leaders of different parties of the state assembly, the ruling party and opposition party which is also a matter of great concern. There definitely arises the larger question of right to privacy, which the Supreme Court has held to be a facet of right to life.”

In the same month, the Bihar government moved the Supreme Court against the high court’s stay order. Ahead of the summer vacation, the top court adjourned the hearing since the Patna High Court was slated to hear the matter in July, with an assurance with the government’s plea would be heard on July 14 if the petitions were not taken up by the high court by then. On July 7, arguments were concluded and the division bench of the Patna High Court reserved its verdict.

Case Details

The State of Bihar & Ors. v. Youth for Equality & Ors. | Special Leave Petition (Civil) No. 10404 of 2023