Read Time: 08 minutes

Synopsis

Referring to the Bihar government's decision to hold a caste-based survey in the state, the Supreme Court today said that it was not a not quasi judicial order, but an administrative decision, and as such the thought process and reasons behind the same were not to be given to the public.

Justice Sanjiv Khanna observed thus when a submission was made by Senior Advocate CS Vaidyanathan appearing for 'Youth for Equality' that the state government had a brought out a notification which was then published in the gazette.

When a prayer was made to stay the publication of the census, the bench also comprising Justice SVN Bhatti said, "They have already completed the census..if we issue notice that is also a problem because then there is a question of interim relief.. We should listen arguments on the judgement...we will not stay something before finding out the root cause..".

Senior Counsel Vaidyanathan also relied on the Puttaswamy judgment to submit, "...privacy can be infringed only in some cases, there is no law for this(census), it is being done by a mere executive order..it is not sufficient to go against a fundamental right...".

After Vaidyanathan concluded, the bench decided to take up the matter on Monday at the end of the board.

Last week, the Supreme Court had refused to grant status quo on the Patna High Court's order.

'Ek Soch Ek Prayas', an NGO, had approached the top court against the High Court's recent decision to uphold the Bihar government's caste-based survey.

A bench of Justices Sanjiv Khanna and SVN Bhatti had on August 7, 2023 adjourned the matter on a request made on behalf of Senior Advocate CS Vaidyanathan, but refused to grant status quo.

Justice Khanna had expressed his surprise on the request and said, "What is this? No question of status quo... We haven't even issued notice...".

In April this year, a division bench of the Supreme Court had refused to entertain a plea challenging the caste-based survey. However, a bench of Justices MR Shah and JB Pardiwala had allowed the petitioners to move an application for early hearing on interim relief before the High Court.

The plea challenged the caste-based survey on the ground that it was not a survey for a sample population, but a census, involving house-to-house enumeration of all people, which only the Centre could undertake.

Later, the Patna High Court had stayed the controversial survey by issuing an order stating, ".. 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 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.

The first round of caste survey in Bihar was conducted between January 7 and 21.

Case Title: Ek Soch Ek Paryas vs. Union of India