Patna High Court: The Division Bench of K. Vinod Chandran, C.J.* and Madhuresh Prasad, J. opined that the State had no power to carry out a caste-based survey, in the way it was fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament. Therefore, the Court directed the State Government to immediately stop the caste-based survey and ensure that the data already collected was secured and not shared with anybody till final orders were passed.
Background
The petitioners, a collective of the young and the aged; students, teachers, and professionals, concerned with populist measures harming the social fabric of the country, had filed the writ petition in public interest against the caste census attempted by the State of Bihar. The counsel for the petitioner submitted that the authority to carry out a census was with the Central Government under Entry 69 of List I of the Seventh Schedule to the Constitution. Therefore, the State could not attempt to carry out a caste census in the garb of a survey, especially when the State had absolutely no legislative competence. It was also submitted that when a survey was carried out, there was a specific objective, which was totally absent in the present exercise which again raised the question of whether the present survey carried on as a caste based one, was in reality a Census.
It was pointed out that the details were to be collected from the eldest family member and in the case of caste status it could even be from the relatives or neighbors which militated against the claim of voluntary disclosure. Further, in the event of non-disclosure by a woman of caste of the father of her child, the officers were directed to ensure such disclosure in the presence of another person, which deprived the woman of the right to not disclose the details and further degraded her on account of her gender alone. In effect, it turned out to be a compulsory disclosure which was in violation of the right to privacy of an individual which was held to be an intrinsic part of Article 21 of the Constitution by the Supreme Court in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (‘K.S. Puttaswamy’). It was also pointed out that positive discrimination on the ground of caste could be upheld only under Articles 15(4) and 16(4) of the Constitution and otherwise it falls foul of Article 14 of the Constitution. The petitioners also relied on K.S. Puttaswamy Case to point out that privacy being an inextricable facet of Article 21, there could not be any compulsory extraction of the personal details from the citizens, which would fall foul of the constitutional guarantee to life, under Article 21 of the Constitution, which had also been held to be a right to live with dignity.
Analysis, Law, and Decision
The Court noted that the essential difference between a ‘census’ and a ‘survey’ was that the former contemplated collection of accurate facts and verifiable details; while a survey was intended at collection and analysis of opinions and perceptions of the public which might be aimed at a specific community or group of people or the extended community of a polity. The Court opined that the present exercise by the State of Bihar could only be seen as an attempt to carry out a ‘census’ under the name of a ‘survey’.
The Court opined that it did not find the collection of caste details to be inextricable linked with or related to any of the specific entries, that is, Entries 20, 23, 24, 30 and 45 of the Concurrent List, pointed out by the State and these entries were not sufficient and relevant to carry out a collection of caste details from the individual citizens. The Court further opined that it was trite law that when the State did not have the power to legislate, the Executive Government also could not bring out any orders exercising the executive power under Article 162 of the Constitution. The Court observed that in the present case census would be in the exclusive domain of the Parliament and there could be no orders brought out in exercise of the coinciding legislative power, like the impugned notification for reason of the total absence of such legislative power.
The Court noted that the notification produced at Annexure-1 specifically spoke of the State Government having decided to conduct a caste-based survey through the General Administration Department, expenditure of which was intended to be taken from the Bihar Contingency Fund, with a target to complete the exercise by February 2023. Annexure-2, indicated that the subject of survey was to be ‘Bihar Caste-based enumeration for determination of caste list for 2022.’ The proforma in which the survey was to be conducted enumerated seventeen heads or details to be collected; one of which was ‘caste’. The Court further noted that the details of even caste and income of every family member would be taken from the head of the family and not from the respective individual, which itself militates against the veracity and integrity of the data supplied. Thus, this also stood against the contention taken of a voluntary disclosure.
The Court observed that survey, though extended to the age, gender, marital status, income, possessions and educational qualification of each individual, the intention was solely to identify the caste, which was more than evident from the terminology with which the survey had been called, that is, ‘a caste-based survey’. The Court relied on Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217 wherein it was held that reservations, by affirmative action, could be provided by the Parliament, State Legislatures, statutory rules as well as by way of executive instructions issued by the Central Government from time to time. But this Court opined that it would not mean that the State could carry out a caste-based census.
The Court further noted that the guidelines had the requirement to ascertain the caste of an individual, from the head of the family, relative or neighbour and as far as a child was concerned, the guidelines insisted for ascertainment of the father’s caste from the mother. Moreover, there was a compulsion on the mother, if she failed to disclose it, to do so in front of any other person present there. The Court also noted that the guidelines also prohibited the caste of the mother to be entered as that of the child; which was in violation of the Supreme Court declaration that the backwardness of a person, for reason of his belonging to a caste, should be determined by the circumstance in which he grows up.
The Court opined that it was convinced that the survey, in the way it was being carried out, could not be said to be within the policy realm of the State. The Court observed that the caste-based survey was a census in the garb of a survey, the power to carry out which was exclusively on the Union Parliament which had enacted a Census Act, 1948. The Court further noted that though it had been vehemently urged that both Houses of the State legislature had sanctioned the survey, there was nothing placed on record regarding the deliberations made or the objects sought to be achieved by embarking upon such a massive exercise, that too for the collection of details which included the sensitive issue of caste.
The Court observed that the petitioners had made out a prima facie case against the continuation of the process of caste-based survey, as attempted by the State of Bihar and thus, the Court opined that the State had no power to carry out a caste-based survey, in the manner in which it was fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament. The Court further opined that the Government intended to share data with the leaders of different parties of the State Assembly, the ruling party and opposition party which was also a matter of great concern as there arose the larger question of right to privacy, which the Supreme Court held to be a facet of right to life.
Thus, the Court directed the State Government to immediately stop the caste-based survey and ensure that the data already collected was secured and not shared with anybody till final orders were passed.
The matter would next be listed on 3-7-2023.
[Youth for Equality v. State of Bihar, 2023 SCC OnLine Pat 1273, Order dated 4-5-2023]
Advocates who appeared in this case:
For the Petitioner/s: Dinu Kumar, Senior Advocate; Abhinav Srivastava, Dhananjay Kumar Tiwari, Rajat Kashyap, Deep Shekhar, Amit Anand, Ritika Rani, Hinja Gautam, Vardan Mangalam, Avinash Kumar Pandey, Brajesh Kumar Pandey, Shashwat, Sachina, Sumit Kumar, Shudi Bharti, M.P. Dixit, S.K. Dixit, Sanjay Kumar Chaubey, Swastika, Advocates;
For the Respondents: P.K. Shahi, AG; Vikash Kumar, Manish Dhari Singh, Amish Kumar, AC to AG; Anjani Kumar, AAG-4; Alok Kumar Rahi, AC to AAG-4; Uma Shankar Verma, Senior Advocate; Shailendra Kumar Singh, Alok Kumar Rahi, Naresh Dixit, Kalpana, Advocates.
*Order by: Chief Justice K. Vinod Chandran
Know Thy Judge | Justice Krishnan Vinod Chandran – 44th Chief Justice of Patna High Court
