Patna HC upholds Bihar caste-based survey: Why it was challenged, what the court said

In May, the Patna HC itself had stayed the caste survey on the grounds that the state was not competent to conduct the caste survey.

The challenge so far

In January, the Bihar government began conducting a survey of households to collect and publish data on caste with the aim of “ensuring all-round development of all sections of the State.”

The second stage of the survey was to end in late May, but the survey was halted after the Patna High Court on May 4 stayed it.

“There is also the question raised of data integrity and security which has to be more elaborately addressed by the state. Prima facie, we are of the opinion that the state has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a Census, thus impinging upon the legislative power of the Union Parliament,” the Court had said.

Expressing concerns on the right to privacy, which has been held to be a facet of the right to life under Article 21 by the SC in its 2017 ruling in Justice KS Puttaswamy vs Union of India, the Bench had directed the state to “immediately stop the caste-based survey and ensure that the data already collected” is “secured and not shared with anybody till final orders are passed.”

The Bihar government moved the Supreme Court against the Patna HC’s decision. However, on May 18, the top court refused to stay the order, observing that the HC had kept the matter for hearing on July 3. “We will keep this pending. If the High Court does not take it up on (June) 3rd we will hear it,” the bench said.

Now, three months later, the HC cleared the caste survey.

“We find the action of the State to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’; as proclaimed in the address to both Houses and the actual survey to have neither exercised nor contemplated any coercion to divulge the details and having passed the test of proportionality, thus not having violated the rights of privacy of the individual especially since it is in furtherance of a ‘compelling public interest’ which in effect is the ‘legitimate State interest’,” the court said in a 101-page order.

The grounds for challenge

The caste survey was challenged under two significant grounds: that it violated a citizen’s fundamental right to privacy and that the state had no power to carry out such a survey.

Privacy argument: Responding to the petitioner’s argument that the right to privacy of those being surveyed will be infringed due to the queries concerning their religion, caste, and monthly income, the court referred to the triple-requirement test laid down in Puttaswamy, reiterating that permissible restrictions can be imposed on the fundamental right, in the state’s legitimate interests, provided they are proportional and reasonable.

Over the security concerns raised in the interim order, the Court accepted the Bihar government’s counter-affidavit, saying that the survey has a foolproof mechanism with no chance of any kind of data leakage.

Adding that the disclosures “are voluntary” and aimed at “bringing forth development schemes for the identified backward classes”, the court clarified that the data collected is not for “taxing, branding, labeling or ostracizing individuals or groups” but to “identify the economic, educational and other social aspects of different communities/classes/groups, which require further action by the State” for their upliftment.

Competence: The petitioners claimed that only the Union government can conduct a “census”. The legislative, and by extension, executive, powers of the Centre and States are divided into three lists found in the Constitution’s Seventh Schedule. Among these, Entry 69 of the Union List contains the Centre’s exclusive power to conduct a “census”, the petitioners said. They also relied on Article 246, which deals with the Parliament’s power to exclusively legislate “on any of the matters enumerated in List I in the Seventh Schedule”.

Meanwhile, the Bihar government argued that even in 2011, a caste census was conducted by the Centre, the details of which weren’t disclosed, under Article 73, which states that the Centre’s power extends to matters on which Parliament has the power to make laws.

It also pointed out that Entry 45 of the Concurrent List, containing subjects over which both the Centre and the states can legislate, is similar to Entry 94 of the Union List, as both confer powers to collect statistics for verifying details, to achieve the economic and social planning goals listed under Entry 20 of the Concurrent List.