Why the Patna High Court Upheld the Bihar Caste Survey

Today, a division bench of the Chief Justice K Vinod Chandran and Justice Partha Sarthy rendered the judgment on various petitions which were filed to challenge the caste survey which was initiated by the Bihar government. The lead petition was Youth for Equality vs The State of Bihar.

Background:

The first phase of the survey, which involved house listing exercise, was carried out from 7 January to 21 January and the second phase began on 15 April and was supposed to be concluded on 15 May. However on May 4, 2023, the court had stayed the caste-based census in its interim order. The court in its stay order had directed the government to immediately stop the caste-based survey and ensure that the data already collected are preserved and secured. The court had also asked not to share the data with anybody till the final orders are passed.

The hearing for final disposal had begun on July 3 and today the court in its final judgment upheld the caste survey effectively removing any legal hurdle in conducting the survey. The petitioners however have told to media persons that they will prefer an appeal to the Hon’ble Supreme Court.

The court in its judgemnet observed that that despite attempts to efface it from the social fabric, caste remains a reality and refuses to be swept aside, wished away or brushed aside nor does it wither away and disperse into thin air”.

Some of the arguments which were raised against the survey by the petitioners:

The petitioners raised objections specifically regarding the queries raised under the three heads of religion, caste and monthly income. They placed reliance w on K.S. Puttaswamy II (Aadhaar) v. Union of India; [(2019) 1 SCC 1] to point out that these three aspects are very sensitive personal information which defines the identity, autonomy, dignity and privacy of every individual. It was also argued by the petitioners that the State by the above survey conducted amongst the residents of Bihar is imposing a caste status on every citizen, whether he desires it or chooses to distance himself/herself from it.

As far as monthly income is concerned, there is an estimation possible of the total income received by the members of the family in the whole year divided by 12 months; which, it is argued, is quite artificial and not the real income derived by an individual. It is argued that the survey, as it is intended, would be completely out of focus and there would be no possibility of verification of any of the details supplied by the individual citizen, especially in matters of religion, caste and monthly income.

It was specifically argued that the power to carry out a census is exclusively on the Union Parliament as provided under Article 246 of the Constitution of India read with Entry 69 of List-1, Seventh Schedule. The power to carry out a Census, especially of caste, religion and monthly income can only be traced to Entries 19, 69, 81 and 94 of the Union List under Schedule-VII of the Constitution. Entries 20, 23, 24, 30 and 45 under the Concurrent List, as relied on by the State, can be resorted to only insofar as it does not impinge into the field exclusively reserved for the Union Parliament.

The distinction of Census and Survey was specifically urged to further impress upon the court that the exercise attempted, is in measure and effect a census; thus, impinging upon the exclusive power of the Union Parliament. It was also urged that the restrictions and protection available to a citizen insofar as ensuring the integrity of the data collected and providing for its security, are not available in the present exercise. The State, which is the protector of fundamental rights under the Constitution, has turned its might against the citizen to collect data forcibly and surreptitiously, thus, infringing upon the citizens’ valuable right to privacy, identity, autonomy and dignity.

It was also argued that, to uphold the exercise as legal, there should be competence in the State and if competent, then a valid law should be in existence, under which the exercise can be carried out, motivated by a legitimate goal or aim; which has to be judged under the highest standards of scrutiny. If such a legitimate aim or goal is available, even then there should be narrow tailoring to ensure that nothing beyond what is necessary is done by the State. Again, if there is an alternative method available; which in this case the State has by way of appointing Commissions, to aid the affirmative action, such alternatives have to be resorted to rather than involve in an exercise leading to infringement of fundamental rights. Further, the test of proportionality necessarily has to be satisfied and in the present case, there can be no balance found to sustain the arbitrary action, clearly leading to infringement of fundamental rights, without any declared purpose or goal. The lack of security also assumes importance insofar as the State having not placed anything on record to indicate any audit having been conducted for ensuring the protection of the data collected.

Specific reference was also made to the general guidelines issued which enable the enumerators and supervisors to get information regarding the caste from the head of the family, which again would not be authentic and would also impinge upon the personal choices of an individual regarding disclosure of his caste status. It was emphasized that there is no law brought out by the State to collect such sensitive data and that, in any event, there is no competence in the State to carry out a caste census in the guise of a survey. It was further emphasized that the objective of enabling affirmative action, to those marginalized communities, is not specifically stated in the notifications issued. Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi; 1978 (3) SCR 272 was relied on to rubbish the contention of the object now declared of aiding affirmative action, which object is only an afterthought at the time of preparation of the counter affidavit. There is total absence of statement of such objective in the notification itself and what had not been thought of or stated at the time the decision was taken to initiate a caste-based survey cannot now be supplanted as an objective by way of a counter-affidavit.

It was also vehemently argued that any individual has the right to choose or renounce his caste and there is no justification or legitimate aim, as disclosed from the notifications, to profile an individual on the basis of his caste, religion or income. Shafin Jahan v. Asokan K.M.; (2018) 16 SCC 368 was relied on to argue that the Constitution recognizes the liberty and autonomy which inheres in each individual and this includes decision on aspects defining one’s person. There can be no enumeration of the required details, as is permitted under the guidelines, either from the head of the family or from neighbours and persons of a locality, which would not be accurate and would also violate the right to define oneself, which inheres in the right to privacy.

What was held by the court in the Bihar Caste Survey:

The court held that the 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’. With respect to the security concerns, the court held that the State has demonstrated that the Caste Based Survey has a full proof mechanism and there are no chances of any kind of leakage of the data.

The court came to the finding that the Executive Government had decided to initiate a survey to collect personal details of the natives of the State of Bihar for the purpose of initiating and implementing developmental activities to uplift the backward classes, as is seen from the Governor’s speech to the two Houses. The State Government has also brought out a notification which is published in the official gazette, which is a law, being an exercise under Article 162 of the Constitution of India, especially when there is no law on the subject made by the Parliament to which the present exercise can be said to be repugnant. The aspect of allocation of resources for human development, coupled with a legitimate concern for utilization of resources, ensuring that it is not siphoned away for extraneous purpose; which requires data mining, is the attempt of the State by the instant survey.

With respect to proportionality the court held that “test stands fully satisfied in the present case. In the Aadhaar decision it was held that going by the majority in Puttaswamy(1), ‘legitimate State interest’ can be taken as a permissible restriction on a claim to privacy of an individual instead of applying the test of ‘compelling State interest’.”

It also held that the disclosures are voluntary and it has a definite aim of bringing forth development schemes for the identified backward classes/groups. The caste status sought to be collated is not intended at taxing, branding, labeling or ostracizing individuals or groups; but it is to identify the economic, educational and other social aspects of different communities/classes/groups, which require further action by the State for its upliftment.

Interestingly with respect to the religion and caste, the court observed that “it cannot, but be observed that caste is a matter of descent while religion is a matter of belief. India has many instances of persons belonging to the same caste practicing different religions and despite the religions other than the Hindu religion, not practicing caste system as such; those converted groups, in the other communities also are conferred with backward status and enabled privileges and benefits by the State. The details sought for in the survey are not individual centric and is not aimed at targeting an individual, which in the context of the details collected from the head of the family; is virtually impossible, as the law exists today.”