The Patna High Court’s interim decision suspending the caste survey by the Bihar government was not overturned by the Supreme Court on Thursday. The Bihar government conducted its initial caste survey between January 7 and January 21 and the second round was scheduled to begin on April 15 and last through May 15.
Justices Abhay Shreeniwas Oka and Rajesh Bindal’s bench stated that it would need to determine if the current effort is a census being conducted under the guise of a survey. During the hearing, justice Bindal said that several papers indicated the exercise was actually a census.
The bench ruled, “We are making it clear, this is not a case where we can grant you interim relief.” The highest court observed that the high court had scheduled the main petition hearing for July 3rd.
“We direct that this petition be listed on July 14. If for any reason, the hearing of the writ petition does not commence before the next date, we will hear further submission canvassed by the senior counsel for the petitioner (Bihar),” the bench remarked.
Senior attorney Shyam Divan, representing the Bihar government, argued from the opening that the high court is wholly mistaken and that the current activity is just a voluntary survey rather than a census. He claimed that the caste count is of a specific quality and must be conducted over a given amount of time in an effort to distinguish between the two.
“For census, you have to respond. If you don’t you are met with a penalty. Not so for the survey. Quantifiable data is required for state policies. Supreme Court judgements say so,” he contended.
The high court’s worry for privacy, according to the senior attorney, was one of its issues. “Data would be stored only on the servers of the Bihar government and not on any other cloud. It is a foolproof system. We are open to suggestions by the court.”
The top court, however, informed him that these subjects had previously been covered by the high court. “High Court has gone into it and said stop for now. The High Court had flagged data privacy issues.”
Another defence put out by Shyam Divan was that resources had already been deployed and that 80% of the survey work had already been finished. But the apex court ordered that the state government present its case before the high court on July 3 while the matter is still pending.
The Bihar government alleged that the delay will negatively impact the entire process in an appeal it filed before the Supreme Court in response to the high court’s judgement of May 4. According to the state administration, Articles 15 and 16 of the Constitution require the collection of caste-based statistics.
The Constitution’s Article 15 specifies that the State shall not discriminate against individuals solely on the basis of religion, race, caste, sex, place of birth, or any combination of these factors, and Article 16 mandates that all citizens shall have equal access to employment opportunities and appointment to all positions held by the State.
“The State has already completed more than 80 per cent of the survey work in some districts and less than 10 per cent of work is pending. The entire machinery is working at ground level. There shall be no harm in completing the exercise subject to final adjudication of the dispute,” the plea mentioned.
“The time gap to complete the survey would adversely affect the survey since this would not be contemporaneous data. The stay of collection of data itself would cause a huge loss to the State since, if finally the action of the State is upheld, the State would be required to put logistics in place with additional expenditure and burden on public exchequer,” it added.
After hearing a number of petitions, the high court ordered the state government to suspend the caste-based survey as soon as possible and to make sure that the information already gathered is safeguarded and not shared with anybody until final decisions are made.
“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 High Court had ruled.
The court expressed concern and pointed out that the administration intended to share the survey results with the leaders of various parties represented in the state parliament.
The greater concern of the right to privacy, which the Supreme Court has deemed to be a component of the right to life, is undoubtedly raised in this situation, it had pronounced.
The court noted, “The state cannot attempt to carry out a caste census in the garb of a survey, especially when the state has absolutely no legislative competence and, in that circumstance, neither can an executive order be sustained under Article 162 of the Constitution of India.”
“The essential difference between a ‘census’ and ‘survey’ is that the former contemplates collection of accurate facts and verifiable details, while a survey is intended at collection and analysis of opinions and perceptions of the general public which may be aimed at a specific community or group of people or the extended community of a polity,” it proclaimed.
Social groups and some individuals who had last month petitioned the Supreme Court after having their request for an interim remedy in the form of a stay on the survey denied filed petitions before the high court. The top court had refused to interfere and referred them back to the high court with the direction that their petition be decided expeditiously.
