The story so far: The Supreme Court is set to hear on August 18 a batch of petitions challenging the Patna High Court’s verdict upholding the Bihar government’s ongoing caste survey. A Bench of Justices Sanjay Khanna and SVN Bhatti on August 14 declined a plea seeking a stay on the controversial survey.
On August 1, in a significant relief to Chief Minister Nitish Kumar, the Patna High Court allowed the State government to continue with the survey after observing that the action of the State was perfectly valid, initiated with due competence, and in the furtherance of a ‘compelling public interest’.
On May 4, the High Court had issued an interim stay on the survey. Following this, the State government filed a petition seeking an early hearing of the case which the High Court eventually dismissed. Subsequently, the State government approached the Supreme Court to lift the stay, but the Supreme Court on May 18 declined the relief observing that the High Court had kept the matter for hearing on July 3.
From July 3 to July 7, continuous hearings were held by the High Court Bench of Chief Justice K.V. Chandran, and the verdict was reserved for August 1.
What is the ongoing ‘caste-based survey’?
On January 7, the State government launched a two-phase caste survey in Bihar, stating that detailed information on socio-economic conditions would help create better government policies for disadvantaged groups. Last year on June 6, the Bihar government issued a notification to this effect following a State Cabinet decision on June 2, 2022.
The survey, which will also record the economic status of families alongside their caste, is estimated to collect socio-economic data for a population of 12.70 crore in the 38 districts of Bihar. The first phase of the survey, which involved a house listing exercise, was carried out from January 7 to January 12.
The government was in the middle of the second phase, which had begun on April 15 and was to be completed by May 15, but the survey was halted after the High Court stay on May 4. Following the stay order, the Bihar government indicated that it may take the legislative route to complete the survey ‘at any cost.’
However, with the recent High Court verdict dismissing all petitions opposing the move, the government on August 2 resumed work on the second phase of the survey and aims to complete the exercise by mid-August. In the second phase, data related to castes, sub-castes, and religions of all people is to be collected. The final survey report can be expected in September, less than a year before the 2024 general election.
Origin of caste census and ‘Mandal’ politics
This census did not come out of the blue; the Bihar Assembly in February 2019 had unanimously passed a resolution seeking a caste-based census.
The census conducted at the beginning of every decade does not record any caste data other than for those listed as Scheduled Castes. In fact, the last census that officially collected full caste data was in 1931. In the absence of such a census, there is no proper estimate for the population of OBCs, various groups within the OBCs, and others.
Despite the ambiguity, the Union government has categorically ruled out conducting a Socio-Economic Caste Census (SECC), saying it is unfeasible, ‘administratively difficult and cumbersome.’ Responding to a writ petition filed by the State of Maharashtra to gather Backward Classes’ caste data in the State while conducting Census 2021, the Centre in its affidavit said that excluding any castes other than the Scheduled Castes and Scheduled Tribes was a ‘conscious policy decision’ adopted since the 1951 census, and that there was a policy of ‘official discouragement of caste’.
The Union government in 2011 had undertaken a survey of castes through the Socio-Economic and Caste Census of 2011 (SECC-2011). However, the collected raw data of nearly 130 crore Indians was never made public due to flaws in the data. An expert committee headed by the then Vice-Chairman of the NITI Aayog, Arvind Panagariya was tasked with looking into it. However, since other members of the committee were not named, the committee never met; and as a result, no action was taken on the raw data to collate it into publishable findings.
Political analysts see the Bihar government’s move as a way for coalition parties such as the Janata Dal (United) and the Rashtriya Janata Dal to counter the Bharatiya Janata Party (BJP)’s Hindutva politics with a revival of Mandal politics.
The Socially and Educationally Backward Classes Commission (SEBC), popularly known as the Mandal Commission, named after Bindeshwari Prasad Mandal, a former Chief Minister of Bihar, was established in 1979 by the then Janata Party government under Prime Minister Morarji Desai.
Ten years later, on 13 August 1990, the V.P. Singh government announced the decision to implement the Mandal Commission report, which recommended 27%reservation for Other Backward Classes (OBC). With the Supreme Court ruling in Indra Sawhney & Others v. Union of India (1992) that caste was an acceptable indicator of backwardness, the recommendations of the Mandal Commission were finally implemented.
The Mandal Commission estimated the OBC population at 52%. However, it is debatable whether the estimate holds true even today. Opposition parties, especially regional caste-based parties, have continued to demand a caste census saying that such an exercise is necessary to streamline welfare policies. The demand also relates to the question of expanding OBC entitlements in the electoral context.
Why was the survey stayed earlier?
The High Court on May 4 imposed an interim stay on the exercise after concluding that the Bihar government did not have the legal authority to conduct it since it is a census “in the garb of a survey.”
During the proceedings, the State government apprised a division Bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad that 80% of the work has already been done, following which the Bench directed the State to secure the data already collected and not disclose any of it until final orders are passed in the case.
The Court observed that nothing was placed on record about the objects sought to be achieved by the Bihar government before embarking on “such a massive exercise,” especially with regards to the collection of data pertaining to the “sensitive issue of caste.” It also opined that the power to carry out a census is in the exclusive domain of the Parliament and thus the State legislature cannot embark upon such an exercise.
The Court highlighted that a ‘census’ includes the collection of accurate facts and verifiable details, while a ‘survey’ is intended for the collection and analysis of opinions and perceptions of the general public, aimed at a specific community or group of people or the extended community of a polity.
The Court also raised concerns about privacy, as the State government intends to share the data collected with the various political parties constituting the Bihar Vidhan Sabha. It noted that the Supreme Court had ruled privacy to be a facet of the right to life in its landmark judgment in Justice K.S. Puttaswamy (retd) v. Union of India (2017).
The petitioners apprised the Court that the survey required details about the caste and income of every family member from the ‘head of the family’ and not from respective individuals. In the situation of the non-availability of such a ‘head of the family,’ details could be gathered through neighbours and relatives. Addressing this contention, the Court observed that such a provision raises doubts about the veracity of the data and also defeats the contention of the State government that disclosures under the survey would be voluntary.
Why did the High Court uphold the survey?
Means to achieve affirmative action
In a 101-page verdict, a Bench comprising Chief Justice K Vinod Chandran and Justice Partha Sarthy acknowledged that the purpose of the survey is to identify Backward Classes, Scheduled Castes, and Scheduled Tribes with the aim of uplifting them and ensuring that equal opportunities are extended to them.
Opining on the competence of the State government to conduct such an exercise, the Court ruled that the survey was necessary as any affirmative action under Article 16 (equality of opportunity in matters of public employment) is only possible after the collection of relevant data regarding the social, economic and educational conditions of communities in the State.
The Court also relied on the ruling in Indra Sawhney to rule that there is no fault with the identification of caste in a bid to ameliorate social backwardness as envisoned under Article 16(4) of the Constitution.
Notably, the Court recognised that caste has been found to be an important indicator of backwardness since historically discrimination was meted out to communities based on their caste names. It held that the “mere unfortunate circumstance of birth within one caste” cannot exclude an individual from the privileges and benefits enjoyed by other members of the society.
Competence of the State government
The petitioners had challenged the State government’s competence to conduct the survey by contending that only the Union government has the authority to conduct a ‘census’ under Entry 69 of the Union List in the Constitution’s Seventh Schedule, read with Article 246, which deals with the Parliament’s power to exclusively legislate ‘on any of the matters enumerated in List I (Union list) in the Seventh Schedule.’
Dismissing such a contention, the Court observed that since the executive authority is competent to frame a policy for better administration of the State and that framed policy is not arbitrary, the Court cannot and should not overstep and tinker with the policy.
The Court also did not find much merit in the argument of the caste survey incurring an expenditure of Rs 500 crore, highlighting that the supplementary budget for caste survey was passed by the State Assembly.
It also outlined that State governments “cannot wait on their haunches” for the Central Government to carry out a caste census to ensure affirmative action and the advancement of socially and educationally backward classes.
Responding to the objection raised by the petitioners that States must identify marginalised castes by appointing commissions instead, the Court, referring to Indra Sawhney, underscored that the appointment of commissions is not the only procedure for the identification of backwardness and that there exists no such thing as a model procedure.
Data security and privacy
Dismissing concerns about the right to privacy of those being surveyed, due to the queries concerning their religion, caste, and monthly income, the Court referred to the triple-requirement test laid down in Puttaswamy and observed that reasonable and proportional restrictions can be imposed in the State’s legitimate interests.
The Court also took into account the Bihar government’s submission that the survey has a foolproof mechanism with no chance of any kind of data leakage.
Recognising that the disclosures are voluntary, the Court highlighted that the data is being collected not to ostracise individuals or groups but to provide benefits to impoverished sections of society. It was also opined that the exercise is in furtherance of a “compelling public interest” which in effect is the legitimate interest of the State.
The Court pointed out that it has not received even a single complaint alleging coercion to disclose personal details.
Why has it been challenged in the Supreme Court?
Multiple petitions have been filed in the Supreme Court challenging the survey, claiming that it is an attempt by the Bihar government to usurp the Centre’s powers. The petitioners include Akhilesh Kumar, a resident of Nalanda, and non-governmental organisations (NGOs) Ek Soch Ek Prayas and Youth for Equality.
The petitions contend that the State’s June 6, 2022 order notifying the survey is unconstitutional since the Union government is exclusively authorized to conduct a census under the Constitution owing to the operation of Entry 69 of the Seventh Schedule’s Union List; the Census Act, 1948; and the Census Rules, 1990.
They also point out that the State Government does not have any independent power to appoint District Magistrates and local authorities for collating data for the census, without a notification under Section 3 of the Census Act, 1948 by the Central government. Accordingly, the petitioners contended that the High Court ‘erroneously’ dismissed the writ petitions without considering that the State government lacked the competence to notify such a caste-based survey.
The impugned verdict has also been assailed on the ground that it violates the Puttaswamy judgment as it permits the collection of personal data by the State under an executive order contrary to the law on data collection laid down by the Supreme Court.
“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,” reads one of the pleas.
Efficacy of caste surveys
Many sociologists and political experts are of the opinion that a caste census is pivotal in battling caste discrimination in India and that ‘caste blindness’ furthers the perpetuation of caste hierarchies. It has been asserted that the phrase ‘caste’ has been historically associated with only lower castes such as the SCs and the OBCs while the upper castes have always been perceived as seemingly ‘casteless’. Accordingly, caste surveys help in mapping out socio-economic deprivations, fundamental in the creation of an egalitarian society.
It is also predicted that if the Bihar caste census is successful, then other States will also demand it— a demand the Union government is resisting.
In March, an internal caste survey conducted by the Indian Institute of Technology Bombay revealed widespread caste discrimination and mental health issues faced by SC and ST students. Although the findings were used by the SC/ST student cells to conduct caste sensitisation courses, the institute in a statement said that the results of the survey were “although very useful qualitatively, ...harder to interpret quantitatively.”
