SC allows caste census, says how else will Bihar fix quota

“So this is publicity interest litigation. How can we issue directions on how much reservation should be granted to such and such caste? If the prayer is granted, how will they (state) determine how reservation is to be granted? Sorry, we can’t issue such directions and can’t entertain these petitions,” the Bench said.

The petitioners sought to submit that it was a census and the state had no power to make any laws regarding it. They said the subject of a census falls in the Union list and only Parliament can legislate on it.

The court, however, was not inclined to hear the pleas, following which the petitioners sought to withdraw it.

“Learned counsel for the petitioner seeks permission to withdraw these writ petitions with liberty to approach the jurisdictional high court. Permission is granted. Hence, these writ petitions are dismissed as withdrawn, with liberty as prayed for,” said the Bench.

The Bench was hearing three petitions on the issue, filed by NGO Ek Soch Ek Prayas, Hindu Sena and an individual, Akhilesh Kumar.

Kumar’s petition urged the court to quash the Bihar government notification, contending that it “accords differential treatment without intelligible differentia”, thereby violating the right to equality before the law. It is also against the basic structure of the Constitution, he said.

The petitioners said the government is under Constitutional obligation to eradicate differences of caste and there is no provision in the Constitution to enable the exercise being carried out by the state.

In November 2014, a three-judge bench of the Supreme Court, comprising then Justices Dipak Misra, R F Nariman and U U Lalit, had set aside an order of the Madras High Court asking the Census department to carry out a caste-wise census. “It is not within the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved,” it had said.

The Madras HC had pointed to an increase in the population of SCs, STs and OBCs since the last caste census in 1931, and said the percentage of reservation fixed on the basis of the 1931 data had to be proportionately increased by conducting a fresh caste-wise census.

“It is evincible that the said direction has been issued without any deliberation and being oblivious of the principle that the courts on very rare occasion, in exercise of powers of judicial review, would interfere with a policy decision,” the SC had said.

In December 2021, the SC had rejected a plea by the Maharashtra government for a direction to the Centre to reveal the OBC data collected by it in the 2011 Socio-Economic Caste Census. The court had referred to the Centre’s stand that the data was “inaccurate and unreliable”.