On August 1, the Patna High Court held that the caste survey being conducted by the Bihar government in the state was legally valid. In May, in response to petitions that had challenged the caste survey exercise, the High Court had raised preliminary questions about the validity of the survey exercise and stayed it.
The survey, which will also record the economic status of families alongside their caste, is estimated to provide socio-economic data for a population of 12.70 crore in the 38 districts of Bihar.
The High Court had stayed the survey in May on the grounds that the state government lacked the jurisdiction to conduct what it described essentially as a survey, as well as privacy considerations. But the court has subsequently reversed its stance on both considerations, allowing the government to proceed with the survey.
Background
India had last conducted an exercise to count the population of all caste groups in 1931. In independent India, census reports have published data noting the population of the Scheduled Castes and the Scheduled Tribes, but not other caste groups.
On September 23, 2021, the Union government had told the Supreme Court that a country-wide caste census would be “administratively difficult”.
Three days later, Bihar Chief Minister Nitish Kumar had urged the Centre to reconsider its position. On August 23, 2021, Kumar had led a delegation of 10 political parties from Bihar to meet Prime Minister Narendra Modi to press for the caste census.
The Bihar government had cleared the proposal to conduct a “caste-based survey” in the state in June last year. The government allocated Rs 500 crore for the exercise, which came to be known in the media and common parlance as a “caste census”. It was to be finished by February.
It eventually began on January 7. Information was collected from each household as part of the survey under 17 heads, one of which was caste.
Soon afterwards, the exercise was challenged before the Supreme Court by Bihar resident Akhilesh Kumarthe and non-governmental organisations Ek Soch Ek Prayas and Hindu Sena.
The Supreme Court dismissed the challenge on January 20, asking the petitioners to approach the Patna High Court instead.
In April, Youth for Equality, an organisation against caste-based reservation, as well as five citizens from various parts of the country, filed a petition challenging the caste survey at the Patna High Court.
On April 28, the Supreme Court, on an application made by Youth for Equality, asked the High Court to decide on any plea by the organisation for interim relief in the matter at the earliest.
Initial stay
On May 4, the High Court ordered an interim stay on the survey.
The petitioners had made three arguments: that the state’s expenditure on the survey was unlawful, that the exercise of the survey was unlawful and that the questions in the survey infringed on the privacy of the respondents.
The High Court left the first question unanswered on procedural grounds.
On the second question, the court held that the government’s exercise actually amounted to a census, rather than a survey.
Since only the Parliament can make a law in relation to the Census, given it is a power allocated to the Union in the Constitution and since only the Union government can conduct a census under Section 3 of the Census Act, 1948, the state government was lacking in jurisdiction to carry out the exercise, according to the high court.
At the same time, the court admitted that neither the terms “census” nor “survey” have been defined in the relevant laws. It therefore defined and differentiated between the terms by relying on English language and law dictionaries.
On the third question, the court noted with “great concern” that data from the exercise would be shared with the leaders of different political parties of the state Assembly. According to it, the larger question of privacy arose in this situation.
Privacy had been held by the Supreme Court to be a fundamental right in its landmark judgment in Puttaswamy v Union of India in 2017.
When the Bihar government contended that the kind of data being collected in the survey is already in the public domain, and that individuals use it to avail of reservations, apply for social welfare measures and to gett employment, among other things, the court asked why such a massive and expensive exercise was being conducted at all if the details sought are already available.
Why the High Court reversed its stance
In a 101-page judgment, the High Court first laid out the following four arguments laid down by the petitioners for challenging the caste survey:
- The state was conducting a census masquerading as a survey, which is beyond its competence,
- Even if the state was competent to conduct the survey, it had not declared any legitimate object for collecting data from citizens,
- There is an element of coercion in collecting personal details such as caste, religion and income from citizens, which is in violation of the fundamental right to privacy, and
- The state government’s measures did not comply with the principles laid down by the Supreme Court as to the limited circumstances in which the right to privacy might be circumscribed.
With regard to the first question, the court held that the state government was within its rights to take any measures to identify socially and educationally backward classes in order to provide for affirmative action as prescribed by Articles 15 (reservation in educational institutions) and 16 (reservation in public employment) of the Constitution, and take other legislative and executive actions for their development.
It located the government’s power to conduct the survey to collect information on backwardness within certain entries in List III of the Seventh Schedule of the Constitution, which deals with matters such as economic and social planning, and social security and social insurance.
It went on to then hold that there was nothing in law to prohibit a state government from collecting any data, as collected in a census, to implement welfare schemes and carry out affirmative action programmes.
On the second question, the court first acknowledged that its scope of judicial review of policy decisions was limited to only proscribing such decisions that are patently unreasonable and arbitrary. It acknowledged caste as a relevant criterion for determining a group’s social and educational backwardness.
It then held, on the basis of an examination of the letters exchanged among various authorities leading up to the survey, that the objective of the survey, while not expressly stated in its notification, was to collect data on factors such as caste to determine the backwardness of communities and implement schemes to uplift them.
On the third question, the High Court noted that even though 80% of the survey was over, not a single complaint of coercion to divulge details sought in the survey had come up. It found no coercion discernible in the data collection guidelines for the survey either. Since the data collected in the survey is publicly available, and it is only due to the difficulty of extracting it that the survey is being carried out, the court reasoned, there was no violation of privacy.
On the fourth question, the High Court held that the survey was in compliance with the Supreme Court’s privacy intrusion principles. The survey’s purpose, as made out in an address by the governor of Bihar in the state’s legislative assembly, is providing “development with justice”, which is a “compelling state interest”, according to the court. As per the Supreme Court, it reasoned, a legitimate state interest is an acceptable restriction on the right to privacy.
The High Court’s judgment has already been challenged before the Supreme Court by the petitioners who were unsuccessful in the High Court.
