Caste survey setback: Is Nitish Kumar jumping the gun on big-ticket legislation?

The HC asked the state government to explain how the process was not a “census” — which is the exclusive domain of Parliament — under the “garb of a survey”; if it did not infringe upon norms of privacy and data security; and if there was legal sanction for the Rs 500 crore fund disbursed for the survey so far. Former minister and Advocate General P K Shahi failed to convince the HC on the questions posed by the six petitioners who had challenged the survey, who described it as a political tool ahead of the 2024 Lok Sabha elections

The HC asked the state government to file a counter-affidavit on all the questions raised by the next date of hearing, July 3.

Last year, the Supreme Court directed the state government to set up a dedicated commission to collect quantifiable data on the backwardness of OBCs ahead of the civic polls, before allotting them quota in the seats.

Following the Supreme Court order, the state government notified an OBC/EBC Commission.

BJP Rajya Sabha MP and former deputy CM Sushil Kumar Modi says the rush of the Nitish government was unseemly. “Then advocate general Lalit Kishore had twice advised the state government to set up a dedicated commission. Instead, the CM replaced Lalit Kishore with P K Shahi. Nitish Kumar is not given to listening to dissenting voices, however sane they might be, from advocates to colleagues to bureaucrats. The latest legal embarrassment reflects obstinacy on part of the state government.”

However, on this count, Bihar is not alone. Since the Supreme Court in 2021 set a ‘triple test’ criteria for tabulating OBCs, courts have set aside OBC reservations in local bodies on similar grounds in Karnataka, Maharashtra, Odisha and Madhya Pradesh.

The state government’s multiple scaledowns on the Bihar Prohibition and Excise Act, 2016, areanother case study on poor drafting of a major law. In December 2021, then Chief Justice of India N V Ramanna had criticised the state for “lack of administrative foresight” in drafting its liquor law which, it said, had resulted in clogging of cases in court. The state government has, so far, amended the law thrice.

There was another scaledown recently, when Nitish took back his December 2022 announcement in the Assembly of not sanctioning Rs 4 lakh as compensation to the next of kin of those who die from consuming spurious liquor. The government recently now announced compensation for such victims.

The state government has also been receiving flak for not reverting the EBC Lohar caste to its previous caste location. The Lohars had boycotted the recent caste survey exercise, saying they cannot be categorised as a sub-caste of Kamar (carpenter) or under the ST categories of Lohar, Lohra or Lohara. In February 2020, the Supreme Court struck down the state government’s decision to put EBC Lohar under the SC category.

Another recent state government decision — tweaking the Bihar Prison Manual, 2012, to give waiver to former MP Anand Mohan Singh, allowing his release from jail on April 27 in the 1994 G Krishnaiah lynching case — has been challenged in the Patna High Court as well as the Supreme Court. While the state government’s plea is that it has given remission to 698 convicts in the last seven years, it might be hard to explain the decision to “tweak” the jail manuals, which facilitated Mohan’s release.

Speaking to The Indian Express, a JD(U) leader conceded: “It is true that we have faced legal setbacks recently. We have to take sound legal opinions and also make major course corrections in our caste survey format, if we want the survey to be declared legal by the courts.”