Bihar Caste ‘Census’ | Day 2: Bench narrows down key issues; arguments to begin in September 2024
Validity of the Bihar Caste ‘Census’Judges: Sanjiv Khanna CJI, P.V. Sanjay Kumar J
Today a Division Bench of Justices Sanjiv Khanna and P.V. Sanjay Kumar briefly heard arguments on the Bihar government’s competence to conduct caste-based surveys for drafting government policies. The Bench listed the petitions to be heard in the first week of September.
The caste survey was an initiative taken up by the Bihar government in 2022 to develop policies for disadvantaged groups. Organisations such as Ek Soch Ek Prayas which advocate for social justice, education, and human rights, argued that the survey was akin to a census. Under Entry 69 of Ūnion List only the Union government is entitled to carry out a census. The Union government supported this argument. Other petitioners include the Youth For Equality, an organisation that advocates against caste-based reservation policies.
The Union’s current stance now remains unclear considering that Bihar Chief Minister Nitish Kumar’s political party—the Janata Dal (United)—is part of the ruling-National Democratic Alliance. Notably, the caste survey was announced before Kumar pulled out of the Mahagathbandhan and the opposition INDIA bloc and formed a new state government with the Bharatiya Janata Party.
The petition was brought before the Supreme Court in August 2023 after the Patna High Court upheld the survey. Today, Senior Advocate Aparajita Singh appeared for the petitioners and briefly argued that the survey was invasive on the fundamental right to privacy and thus impermissible.
Singh: Caste-Survey violates the fundamental right to privacy
Singh relied on Justice K.S. Puttaswamy v Union of India (2017), where the Supreme Court recognised the fundamental right to privacy. She contended that if the survey were to be conducted, citizens would be unconstitutionally forced to share their caste identity with the state government.
Singh asked, “If as a citizen, I don’t want a caste identity, can the state compel me?” Justice Khanna responded that the “99 percent” individuals would not oppose revealing their caste information. The right to privacy can be waived, he stated. Singh promptly responded that “neighbours” of individuals who refused to participate in the survey were compelled to reveal their caste identity. Relying on a survey in Maharashtra conducted by the Union government, she pointed out that 11 percent of people refused to identify themselves with a particular caste.
Singh informed that her submissions would require more time. “We know the issue,” Justice Khanna stated. As the Court was scheduled to close in less than 45 minutes, he directed Singh to save detailed arguments for later.
Petitioners to argue on the citizens right to access survey data
The Bench narrowed down three key issues that the whole case boils down to:
- Can a state government conduct a survey with the intent of drafting policies?
- What are the instances where a survey or data collection is barred?
- Can the survey data be revealed for “public scrutiny”?
Justice Khanna reminded that the “principle of proportionality” should be kept in mind when arguing on the first question. Foreign jurisdictions make it mandatory to draft policies on the basis of data, he reminded the counsel.
The parties were directed to submit necessary written submissions within four weeks.