The Patna high court on Thursday issued an interim order staying Bihar’s caste-based survey, saying prima facie the state government has no power to carry it out and the manner in which it has been fashioned would amount to a census and impinge upon Parliament’s legislative power.
A division bench of chief justice K Vinod Chandran and justice Madhuresh Prasad directed the authorities to secure the data collected as part of a two-phased enumeration exercise that kicked off in January. It said the data will not be shared with any authority until final orders are passed
The court fixed July 7 as the next date for the hearing of a bunch of petitions against the survey.
“…the petitioners have made out a prima facie case against the continuation of the process of caste-based survey… There is also the question raised of data integrity and security which has to be more elaborately addressed,” the court said.
The court expressed concern over the government’s intention to share data from the survey with the leaders of parties in the state assembly.
“There definitely arises the larger question of the right to privacy, which the Supreme Court has held to be a facet of the right to life,” it said.
The second phase of the survey began on April 15 and was to continue till May 15.
The petitioners against the census last month moved the Supreme Court after their request for interim relief in the form of a stay on the survey was turned down.
The top court referred the pleas back to the high court with directions that their petitions be decided expeditiously.
Bihar chief minister Nitish Kumar has maintained the state is not conducting a caste census but only collecting information related to people’s economic status for specific steps to serve them better.
Bihar’s advocate general PK Shahi said he has not read the high court order. “I will be able to say something after I read the order and know on what grounds the court has stayed the exercise,” he said when asked if the state government will challenge the order in the Supreme Court.
House-listing was conducted in the first leg of the survey before data collection including the financial status of people in the second phase began for a budget tailored for the welfare of weaker sections of society and better implementation of schemes.
The Bihar cabinet on June 2 last year decided to conduct the caste-based survey in the state months after the Union government ruled out such an exercise at the national level. The normal decadal census counts religious groups and Scheduled Castes and Scheduled Tribes separately.
Nitish Kumar was one of the leaders of the movement in the 1990s for the implementation of the Mandal Commission recommendations for reservation for other backward classes. His frequent demand for a caste census was among the reasons that deepened his Janata Dal (United) or JD(U)’s rift with its erstwhile ally Bharatiya Janata Party (BJP).
JD(U) last year parted ways with BJP and formed the government with Lalu Prasad-led Rashtriya Janata Dal (RJD), Congress, and the Left parties.
The RJD-JD(U) combine has sought to weaken religious polarisation for countering the BJP by backing a caste census.
The Patna high court on Wednesday reserved its judgement after completing the hearing of the petitions against the survey.
The judges said they would grant interim relief to the petitioners if they found the state government either exceeded its powers to commission such a survey, did not follow the due process, or if there was an infringement of the privacy of the respondents.
Shahi brushed aside the petitioner’s contention of breach of privacy, saying the survey was voluntary. He added all information sought from the respondents was available in the public domain, and the state government was only compiling the information available in bits and pieces.
He said the state has the authority to conduct such a survey, arguing there was no law prohibiting it from knowing about its population to devise welfare schemes to rid the society of inequalities.
Shahi said the state assembly unanimously passed a resolution for the survey before the Cabinet ratified it. He accepted that initially there were some infirmities, which were corrected as soon as the government got to know them.
The state government in its affidavit claimed any effort to stall the exercise, which was in its final stage, would cause immense loss to the state exchequer.
The Bihar government has spent around ₹115 crore on the exercise. It has paid ₹11.6 crore for printing over 30 million forms for the survey.
Youth for Equality, one of the petitioners, argued that the survey violated the right to privacy under Article 21 of the Constitution and was contrary to guidelines the Supreme Court laid down in a 2017 judgment.
It said the collection of personal data was not being done through an executive order.
