Patna High Court stays Bihar Caste Census

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"Prima facie, we are of the opinion that the State has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament", the bench said

Patna High Court has put a hold on the controversial caste-based census in Bihar. The decision came after the Supreme Court asked Patna High to adjudicate on an interim application by ‘Youth for Equality’ seeking a stay on the census expeditiously. Various other pleas were clubbed with the aforementioned application.

The petitioners had challenged the census on more grounds than one. Their first contention was that the state government does not have power to conduct a census. To substantiate their point, they cited Entry 69 of List I of the Seventh Schedule to the Constitution of India. List I is Union List and its Entry 69 clearly puts the Census under the purview of the Union government. According to them, the state had no legislative competence to carry out such a survey.

"..we direct the State Government to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed...," the court said

In that case, the state could claim its executive power to conduct the census. However, Petitioner argued that even that is prohibited under Article 162 of the constitution. Article 162 limits the state's executive power to Constitutional provisions.

The next set of objections pertained mainly to Right to Privacy. State argued that there is no coercion in compelling people to give their data. However, petitioners presented guidelines to officers and showed that the eldest family member is having to divulge details of family. In his absence, a relative or neighbour would be consulted. Both go against the principle of voluntary disclosure, leading to invasion of the right to privacy.

Situation is worse for women. If her father’s or child’s caste is undisclosed, officers have to ensure disclosure in presence of another person, hence depriving her of agency, the petitioners claimed, averring it to be violative of Right to Privacy under Article 21. Another such violation is the categorisation of transgenders as Caste. It violates principles of NALSA judgement. Petition further added, “In addition to the total absence of data integrity, there is also no measure implemented by the State to ensure the data security”

Appearing for another petitioner, Senior Advocate Dinu Kumar argued that the whole 500 crore spent by the state government is invalid. The argument was substantiated with Article 267 of the Constitution, the Bihar Contingency Fund Act, 1950 and the Bihar Contingency Fund Rules, 1953 and Rule 62 from the Bihar Financial Rules. Relying on The Census Act, 1948, the Census Rules and The Collection of Statistics Act, 2008, he also contended that there was no deliberation involved, which means that the exercise is malafide.

The Advocate General (AG) of Bihar argued that petitions are malafide attempts to stall a valid exercise. Emphasis was laid on multiple petitions filed in Patna High Court as well as Supreme Court to stop the survey. 

AG then pointed out that the census stands the test of equality clause in Preamble read with directive Principle of State Policy. AG credited the principle as the reason behind the consensus passed by both houses of legislative assembly. According to AG, when such a decision is taken, there is no scope for a PIL against it. AG also termed privacy rights as lofty and abstract ground of challenging the Census as common man in Bihar is concerned about it.

AG cited various reservation discrepancies and Indra Sawhney Judgement to validate the exercise. Regarding the powers of state, AG relied on Entries 20, 23, 24, 30 and 45 of Concurrent list to term the Census as policy decision.

It is pertinent to note that Bihar’s AG did not use the word Census. Instead, the Bihar Government's official word is survey.

However, the bench of Chief Justice K Vinod Chandran and Justice Madhuresh Prasad did not agree with it. The Bench referred to various established and authentic sources and held that the present exercise is Census, not a survey.

“Hence, while in a ‘census’ the details of an individual are collected, in a ‘survey’ often the opinions and perceptions of the targeted persons are collected. Both result in an analysis of the data collected; which in the case of a ‘census’ are empirical, while in a ‘survey’ are mostly logical conclusions. Viewed from the above perspective, the present exercise by the State of Bihar can only be seen as an attempt to carry out a ‘census’ under the name of a ‘survey’," said the High Court

After Establishing the definition, the Bench pointed out that Census is in List I of Seventh Schedule of the Constitution. Clause 1 of Article 246 gives exclusive power to Parliament to make laws with respect to subjects contained in List I.

Regarding the power of state legislature enumerated by AG by invoking  Entries 20, 23, 24, 30 and 45 of Concurrent list, the High Court found that the issue of Caste Census is not linked with state government’s powers under these entries.

The High Court also criticised the government's lackadaisical attitude in ensuring data security. It observed that the declaration made by the head of the family is not absolute and even if a video conferencing service is available, there is no way to authenticate the person available on the other side.

Additionally, it also refuted any argument regarding not calling it a caste-based exercise since there are seventeen columns under which people have to provide their information. “The intention was solely to identify the caste, which is more than evident from the terminology with which the survey has been called, i.e.: ‘a caste-based survey’,” observed the Court.

The High Court also took note of the fact that reliance placed by Indira Sawhney Judgement is not tenable in this case. It observed that power to grant reservation does not translate to a caste-based census by the state government.

On the argument that both houses are in unanimous consensus over the exercise, the Court asked why the consensus was not used to pass a legislation. The High Court also held that on record there is no information about any deliberation made or object sought to be achieved through such an exercise.

The exercise has been halted till the next hearing, which happens to be on July 3.

Senior Advocate Dinu Kumar and Advocate Ritika Rani appeared for petitioner Akhilesh Kumar

Case Title: Youth for Equality Vs. State of Bihar