Bihar Caste ‘Census’ | Day 1: Caste-based survey encroaches on Union’s domain, argue Petitioners
Validity of the Bihar Caste ‘Census’Judges: Sanjiv Khanna CJI, S.V. Bhatti J
Today, Senior Advocate C.S. Vaidyanathan, appearing on behalf of the petitioner, Youth for Equality, argued that there exists a strong basis for requesting a stay of the publication of the Bihar Caste Survey. He contended that the state government had no authority to conduct a survey that required details like caste, gender, and religion.
The Supreme Court was hearing an appeal against a Patna High Court judgement which upheld the legitimacy of the caste survey.
Vaidyanathan: Caste-based survey can be carried out only after legislative enactment
Vaidyanathan contended that since the survey was announced in the Official Gazette through an executive notification, it could not be considered as law. “Law cannot be by executive notification,” he argued, “it has to be statute law.” He addressed privacy concerns by pointing out that the survey collects private information about caste, place of birth, gender, etc. which could be shared with political parties.
He argued that any action taken by a government or its officials that can potentially restrict fundamental rights must be sanctioned by a legislative authority. To support this point, he placed reliance on Puttaswamy v Union of India (2018) and State of Madya Pradesh v Thakur Bharat Singh (1967), both of which affirmed that fundamental rights can be reasonably restricted only through a legislative enactment. Vaidyanathan maintained that this argument had been dismissed by the High Court without proper consideration.
In response, the Bench said that the notification of the Bihar government to conduct the survey was an administrative function. The rationale behind the survey was documented in a “file” which was not disclosed to the public.
Vaidyanathan countered that the “file” did not contain any reasoning, and the Bihar government only relied on a speech delivered by Rajendra Vishwanath Arlekar, the Governor of Bihar. The speech stated that the survey was intended to ensure an all-round development of all sections of the state. Vaidyanathan said that there is no “contemporary documentary evidence” pointing towards the necessity of the survey. He drew support from Mohinder Singh Gill v Chief Election Commissioner (1978) and Commissioner of Police, Bombay v Gordhandas Bhanji (1965), both of which explicitly state that an executive order must be self-explanatory and cannot lean on external material.
Vaidyanathan: Cannot ask for specific personal information without backing of law
When the Bench queried whether privacy is infringed when the results of the survey are released as cumulative figures and not individual data, Vaidyanathan highlighted the 17 data points requested in the survey, which include caste, gender, religion, etc.
When the Bench inquired about the specific item that he believed encroached upon the right to privacy under Article 21, Vaidyanathan pointed out that now anyone can ascertain one’s caste. He argued that attributing characteristics like caste by birth, religion, and gender runs counter to contemporary views. He pointed out that all data points in the survey are mandatory, except providing details of the Aadhaar card. In response, the Bench clarified that non-completion of the survey does not incur any penalty.
As the session concluded, Vaidyanathan emphasised that the crux of the matter is whether the state can demand such specifics from individuals without the backing of a law.
Advocate Aparajita Singh is scheduled to address the point of legislative competence on Monday, 21 August 2023.