In what can be termed as an embarrassment to the Nitish Kumar-led Bihar government, the Patna High Court on Thursday stayed the caste survey with immediate effect and asked the authorities to preserve the data collected so far. The court noted that the survey was a census in the garb of a survey, the likes of which only the union government had the exclusive power to carry out under the Census Act, 1948.
A division bench of Chief Justice K Vinod Chandran pronounced its interim decision to stay the caste survey till further hearing on July 3. “We had from the beginning raised the issue of right to privacy of citizens and the state had not disclosed the purpose or objective behind the survey. Collecting data with respect to all individuals and, many of them were not given the opportunity whether or not they wanted to discuss the information pertaining to 17 parameters mentioned. So we had raised the question of infringement of fundamental rights of citizens; additionally, the manner in which the state was seeking to conduct the present exercise was also a violation of constitutional mandate. Three petitions were clubbed, the first was by ‘youth for equality’ represented by me. We have primarily raised the question that the state government did not have the authority to do this, they did not have any powers. Whatever the government was trying to do was some kind of census, which is the exclusive domain of the union second list,” petitioner advocate Abhinav Srivastava told CNN-News18.
The state government started its much-hyped caste-based survey in Bihar on January 7. The project cost was estimated to be Rs 500 crore. The survey was scheduled to be conducted in two phases. The first round was conducted between January 7 and 21, and the ongoing survey began on April 16 and was to end on May 15. But, now after the interim order of the high court, the survey is stopped with immediate effect.
Excerpts from the HC order
The guidelines prohibit the caste of the mother to be entered as that of the child’s, which is in violation of the Supreme Court declaration that the backwardness of a person, for reason of his belonging to a caste, should be determined by the circumstance in which he grows up. It was also pointed out that both the houses of the legislature unanimously resolved to carry out the caste-based survey, which has also been approved by the cabinet. “We (the division bench) fail to understand why if there was lawmaking power available with the legislature and there being unanimous agreement across the treasury and opposition benches, a legislation was not brought about especially in the teeth of the argument raised of lack of legislative power,” the order stated.
“We are also not impressed with the argument raised of delay, especially since the writ petition is filed in public interest, and there is no question arising of having slept over individual rights. We are convinced that the survey, in the manner in which it is carried out, cannot be said to be within the policy realm of the state. Even the defence raised was to source the state’s power to legislate under the Concurrent List, which we have found to be untenable,” it stated.
The order further stated: “On the above reasoning, we find that the caste-based survey is a census in the garb of a survey; the power to carry out which is exclusively on the Union Parliament which has also enacted a Census Act, 1948. It is also submitted before us that 80% of the work is over and what remains is mere collation of the details collected and the further action based on such data collected and made available to the state.”
It stated: “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. We also see from the notification issued that the government intends to share data with the leaders of different parties of the state assembly, the ruling party and opposition party which is also a matter of great concern. There definitely arises the larger question of right to privacy, which the Hon’ble Supreme Court has held to be a facet of right to life.”
The court then directed the state government 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 in the writ petition.
Political blame game
The matter soon became a political blame game between the ruling party and the opposition in the state. Deputy chief minister Tejashwi Yadav said, “We will first understand the order of the court. Then we will sit and talk to the chief minister and decide what to do next.”
“…When we want to do something for backward people, only then does the BJP raise questions,” he said.
Commenting on how even the BJP supported the survey, BJP MLC Devesh Kumar said, “Yes, the BJP has supported but the modus operandi of the state government is questionable. The government did not have the right machinery and its intention is also suspect. Thorough groundwork was not done by Nitish (Kumar) government before going for caste survey. They were in a hurry to score a political brownie point but in the process they forgot that thorough groundwork is needed for it.”
Rajiv Ranjan, general secretary and spokesperson of the JD(U), told CNN-News18, “We respect the court order. But the motive behind this survey was to bring welfare for the downtrodden and backward classes. It is true that census comes under the power of the union government but we were conducting caste count based on economic survey; this is so we can actually find out the economic condition of our people and, accordingly, take measures for their upliftment. Also, we never forced anyone to take part in the survey. The people actively did so.”
Shakti Yadav, RJD spokesperson, said the decision of caste-based survey was unanimously taken by all parties in the Vidhan Mandal. “Even Prime Minister (Narendra) Modi and (union) home minister Amit Shah have said if the state wanted to conduct such surveys, they are free to do so but since honourable court has given its interim decision, we will analyse and proceed accordingly. It was our commitment and this is not the first or last survey.”
Congress state president Akhilesh Prasad Singh said the Bihar government had decided to undertake caste-based enumeration after careful consideration. “Caste-based enumeration has taken place in other states as well. Why so much fuss over this?”
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