6 Oct 2023 7:46 AM GMT
The Supreme Court on Friday adjourned the hearing of a batch of pleas challenging the constitutionality of the caste-based survey conducted by the Bihar government till January 2024. Notably, the court refused to pass any order of stay or status quo to restrain the State from acting on the caste survey data.
"We cannot stop state government or any government from taking a decision," a bench of Justices Sanjiv Khanna and SVN Bhatti orally observed today. This division bench is currently hearing a plea by non-governmental organisations Youth for Equality and Ek Soch Ek Prayas against the decision of the Patna High Court delivered on August 2 to uphold the Bihar government's decision to undertake caste-based survey.
During the hearing today, Senior Advocate Aparajitha Singh took exception to the state government publishing the caste-survey data earlier this week, even while the matter was sub-judice. "They have preempted the court. We were arguing stay...", she submitted. Singh argued that the state's decision to seek caste details was contrary to the Supreme Court's judgment in KS Puttaswamy, which recognised the right to privacy as a facet of the fundamental right to life under Article 21 of the Constitution, as the Bihar government had not shown any 'legitimate purpose' for the survey. She requested the court to pass an interim order of status quo asking the State to not act upon the survey data.
"This data may not be acted upon because it was collected unlawfully", Singh urged.
At this point, Justice Khanna asked the State, "Why did you publish this, Mr Divan?"
Senior Advocate Shyam Divan, appearing for the Bihar government, argued that the court had not passed any order against the publication of the data. "This court indicated that first and foremost it will decide whether notice is to be issued," he said.
Observing that the matter requires to be heard at length, the bench adjourned the hearing until January next year, while issuing formal notice to the state government on the clutch of petitions. Once again, Singh expressed her concerns that by the next date of the hearing, the Bihar government will have published the data and urged the court to issue a status quo order. "This data has been collected unlawfully and cannot be acted upon," the senior counsel emphatically argued.
The bench, however, appeared to disagree with her contention. Justice Khanna told her, "Prima facie, you'll be on some difficulty with respect to that. We have read the judgment and formed a prima facie view, which is of course, subject to change." At the outset of the hearing, the judge had also remarked that the high court's judgment was 'fairly detailed'. Categorically declining Singh's request for a status quo order yet again, Justice Khanna said -
One of the main issues that will be considered by the apex court while hearing the challenge against the government's caste survey will pertain to the breakdown of the data, Justice Khanna explained. "One of the issues, Mr Divan, will be with regard to the breakdown of the data and whether we should at all touch upon it. If we uphold everything, whether it should be left to...Because data has already been collected."
At the end of the hearing, Singh asked, "Has the state government made an assurance that they will not publish the data?"
Justice Khanna sternly clarified that no such assurance had been made on either side.
What has happened so far?
The Supreme Court has refused to temporarily halt the survey, which has now been completed, without first hearing the parties. It has, on multiple occasions, reiterated its stance against issuing any stay order in the absence of a prima facie case. In August, Senior Advocate CS Vaidyanathan led the charge for the litigants challenging the caste survey. Appearing on behalf of NGO Youth for Equality, the senior counsel argued that the 2017 Puttaswamy ruling on the fundamental right to privacy necessitated a just, fair, and reasonable law to infringe on privacy. Such a law must additionally stand the test of proportionality and have a legitimate aim. An executive order of the government could, therefore, not take the place of such a law, even more so when it did not indicate at all the reasons for undertaking this exercise. Apart from this, Vaidyanathan also raised privacy concerns over the mandatory disclosure requirement under the survey. In response, the bench questioned if the right to privacy under Article 21 of the Constitution would be impacted, given the government’s plan to release only aggregated, not individual, data. Justice Sanjiv Khanna also asked if conducting a caste survey in a state like Bihar, where everyone knows their neighbour’s castes, breached participant’s privacy.
On another occasion, Solicitor-General for India Tushar Mehta sought the court's permission to file an affidavit to place on record the central government's views on the legal position surrounding such a survey, saying that it might have some 'ramifications'. The law officer, however, quickly clarified that the Centre was neither opposing nor supporting the litigation. Even while adjourning the hearing to allow the Centre time to file its response, the bench reiterated its stance against granting a temporary stay on the survey.
Soon after, the Centre submitted not one, but two affidavits, in quick succession. The latest affidavit was submitted retracting the earlier one which stated that no entity other than the central government had the right to conduct a census or 'any action akin to census'. The second affidavit clarified that this statement - which reportedly provoked political outrage - had been included inadvertently. The latest affidavit has however retained the submission that a census is a statutory process governed by the Census Act of 1948, which was enacted in the exercise of the powers under Entry 69 of List I of the Constitution's Seventh Schedule and that the said Act empowers only the central government to conduct a census. The union government has also restated its commitment to uplifting people belonging to Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC), and Other Backward Classes (OBC) in accordance with the Constitution and applicable laws.
Earlier this month, the Bihar government published the caste survey data, revealing that extremely backward classes (EBC) constituted 36.01 percent of the state's population, while other backward classes (OBC) contributed an additional 27.12 percent. Collectively, these groups make up 63.13 percent of the 13-crore population of the state. Among other things, the data also shows that 20 percent of the population belongs to scheduled castes (SC), while 1.6 percent belongs to scheduled tribes (ST). Following the release of this data, the Nitish Kumar-led state government announced a 10 percent reservation for economically weaker sections (EWS) in the state's judicial services, as well as in government-run law colleges and universities.
In a recent development related to this matter, another petition has been filed in the Supreme Court over the Bihar government including ‘hijra’, ‘kinnar’, ‘kothi’, and ‘transgender’ as an item in the caste list, while conducting its caste-based survey last month.
Background
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.
After initially issuing a temporary stay in May on the caste-based survey being conducted by the Bihar government, earlier this month, the Patna High Court delivered its verdict upholding the exercise as ‘perfectly valid initiated with due competence’ and dismissed the petitions challenging the caste-based survey. In its 101-page judgment, the high court concluded that the state’s contention could not be brushed aside that the “purpose [of the survey] was to identify Backward Classes, Scheduled Castes and Scheduled Tribes with the aim of uplifting them and ensuring equal opportunities to them”.
The Court also opined that the state government was competent to conduct the survey as any affirmative action under Article 16 or beneficial legislation or scheme under Article 15 “can be designed and implemented only after the collection of the relevant data regarding the social, economic and educational situation in which the various groups or communities in the State live in and exist”.
Multiple petitions have been filed in the Supreme Court of India challenging the decision of the Patna High Court to uphold the Bihar government's caste-based survey. The petitioners have, inter alia, reiterated before the top court that the exercise being carried out by the Bihar government amounted to a census that 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. Kumar, in his petition filed through Advocate-on-Record Tanya Shree, has argued:
“In terms of the constitutional mandate, only the Union Government is empowered to conduct a census. In the present case, the State of Bihar has sought to usurp the powers of the Union of India, by merely publishing a notification in the official gazette. This notification is against the constitutional mandate of distribution of powers between the state and the union legislature as enshrined under Article 246 of the Constitution read with Schedule VII of the Constitution and ultra vires the Census Act, 1948 read with Census Rules, 1990 and is therefore void ab initio.”
The short question of constitutional importance, the petitioner asserts, is whether the government's June 2022 notification announcing a caste-based survey using its own resources and the district magistrate's appointment in a supervisory role consequent to the announcement, are within the constitutional mandate of the separation of power between the State of Bihar and the Union of India. The petitioner insists that the Patna High Court 'erroneously' dismissed the writ petition “without taking into consideration the fact that the state government lacked the competence to notify a caste-based survey”.
Youth for Equality, in its petition filed through Advocate-on-Record Rahul Pratap, has assailed the high court's verdict on the ground that it runs contrary to the 2017 KS Puttaswamy judgment of the Supreme Court. “[We] are not challenging the power of the State to take affirmative action but the manner in which the personal data is being collected by the state under an executive order contrary to the law laid down on data collection by a constitution bench in KS Puttaswamy v. Union of India.”
In this connection, the petitioner-organisation has argued:
“The proposed exercise mandatorily pigeon-holes each and every citizen into one caste or another under a caste list prepared by the state. The imposition of a caste identity on all the citizens irrespective of whether they seek to avail of the state benefit or not is constitutionally impermissible being contrary to the a) right to identity b) right to dignity c) right to informational privacy and d) right of choice of a citizen under Article 21.”
The special leave petition by Ek Soch Ek Prayas has been filed through Advocate-on-Record Surabhi Sanchita, while Akhilesh Kumar's plea has been filed through Advocate-on-Record Tanya Shree.
Case Details
Ek Soch Ek Paryas v. Union of India | Special Leave Petition (Civil) No. 16942 of 2023 and other connected matters