‘Not a futile search for a pot of gold’ — Patna High Court order upholding Bihar caste census

According to the court, the survey “neither exercised nor contemplated any coercion to divulge the details”, and that it does not violate the privacy rights of people.

The bench also asserted that the disclosures in the survey are “voluntary”, and that the exercise 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 ostracising 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,” it explained, asserting that the “mere possibility of an abuse (of the data) for political ends cannot result in the court interfering in a valid procedure adopted”.

In its judgment, the court emphasised the constitutional provisions providing special privileges and benefits for uplifting marginalised sections of society. These benefits are aimed at providing them with a quality of life at par with others, opening up opportunities equally to them and bringing dignity of life to every member of the community, it said.

This, it observed, “is not to be dismissed as a futile search for the pot of gold, at the end of a rainbow or a useless pursuit of a mirage; but it is the path to attainment of an egalitarian society, which is the Constitutional goal, which every State and its instrumentalities should endeavour to achieve and realise and so is a duty cast on the citizens at large”.

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‘Within its competence’

In its defence, the Nitish Kumar government had said that the survey intends to make broad estimates based on which it can initiate legislative action and implement schemes to ensure development of the backward communities within Bihar under Articles 15 and 16 of the Constitution. 

While Article 15 allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, Article 16 allows the State to make any provision for reservations for appointments or posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in its services.

In its ruling, the court held that the Bihar government was competent to conduct such a survey, asserting that state governments “cannot wait on their haunches for the Central Government to carry out the census and provide it with the details so as to ensure affirmative action within the State, in its services under Article 16(1) & (4) and for its downtrodden under Article 15(1) & (4)”.

Therefore, the court said, the survey initiated by the government “is within its competence since any affirmative action under Article 16 or beneficial legislation or scheme under Article 15 can be designed and implemented only after collection of the relevant data regarding the social, economic and educational situation in which the various groups or communities in the State live in and exist”.

‘Not chance of data leakage’

The petitioners had specifically objected to the queries under the heads of religion, caste and monthly income in the survey.

Relying on two landmark judgments of the Supreme Court — the 2017 right to privacy ruling and the 2018 Aadhaar judgment — the petitioners argued that information of religion, caste and monthly income was sensitive and personal, and that they defined the identity, autonomy, dignity and privacy of every individual.

In its ruling Tuesday, the court looked at the three-pronged test on the right to privacy.

First laid down in the 2017 judgment, the test says that a law that violates the right privacy should fulfil three conditions to justify such an infringement — first that there must be a law in existence to justify such an encroachment; second, that such an infringement should be shown as a ‘legitimate state aim’; and third, that the means adopted by the legislature should be proportional to the object and the need of the law. 

All three conditions “are fully satisfied in the present case”, the court said, adding that the aim of the exercise was “allocation of resources for human development, coupled with a legitimate concern for utilisation of resources, ensuring that it is not siphoned away for extraneous purpose; which requires data mining”.

The court also relied on an affidavit by the government to conclude that the caste-based survey “has a full proof (sic) mechanism and there are no chances of any kind of leakage of the data”. 

The bench took note of the government’s submission that arrangements were made to ensure the confidentiality and security of the data. In its arguments, the Bihar government had told the court that supervisors were instructed and trained not to share or show the data to any unrelated individuals, that the data collected during the exercise was being stored in Bihar government’s servers, and that no unauthorised people could access it. 

The court also dismissed allegations of coercion by government officers in collecting survey details, pointing out that 80 percent of the work had already been completed without any such complaints from citizens. The data sought for exercise were already available in the public domain, it added.

Can the state government conduct a census?

Among other things, the petitioners had challenged the survey on the ground that only Parliament was competent to conduct a census. 

But among other things, the court relied on two provisions in the Constitution — Articles 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 16 (equality of opportunity in matters of public employment) — to reject this argument.

For this, the court went back to the Supreme Court’s 1992 Indra Sawhney ruling — the most significant judgment on reservations. In its Tuesday ruling, the Patna High Court cited the case to assert that the “provision” contemplated by Article 16(4) (reservation in government jobs) by Parliament or the state legislatures, or even the executive for central and state services, or by local bodies and other authorities for their own services. 

The court said that if state legislatures and local bodies are allowed to take affirmative action, it follows that this exercise would include identification of socially and educationally backward classes under Article 15 and backward classes under Article 16. 

“For the State Governments to take up the cause of backward communities, as a welfare state…there should be a collection of empirical data, on which would be based the affirmative actions and the various schemes and projects to uplift the marginalised masses and bring them to the mainstream,” the court observed. 

“Hence, when affirmative action can be provided by the various entities coming under the definition of State, the executive branch of the government who also has been conferred with the power to bring in such affirmative actions (and), can adopt such measures for better understanding the living conditions, social, economic and educational status of the various communities, existing within its boundaries.”

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‘No such thing as model procedure’

‘Census’ comes under Entry 69 in List I (Union List) under the Seventh Schedule of  Constitution, which deals with the division of law-making powers between the Centre and the States. 

Entry 94 in this list, meanwhile, includes  ‘inquiries, surveys and statistics’. 

List I, or the Union List, contains entries over which Parliament has jurisdiction. On the other hand, List II, or the State List, has subjects over which the state legislature has jurisdiction. List III, or the Concurrent List, has subjects over which both Parliament and state legislatures have law-making powers, but the central law prevails in case of a conflict.

In its ruling, the Patna HC said that the inclusion of ‘Census’ under the Union List does not prevent state governments from collecting such ‘live’ data — computing data such as Census — for implementing welfare schemes. It reached this conclusion by pointing out that under the Collection of Statistics Act, 2008 — a central law — “the word ‘Census’ and ‘Survey’ have been used interchangeably with reference to appropriate governments of the Union, State or Union Territories”.

The reason for Entry 69 in List I, according to the court, is that a “PAN- (Presence Across the Nation)-India census can only be carried out by the Central Government”.

The court also cited other Constitutional provisions. For instance, it referred to Article 38, which urges the State to “secure a social order for the promotion of welfare of the people”, and Entry 45 of List III (Concurrent list) of the Seventh Schedule, which speaks of ‘inquiries and statistics for the purposes of any of the matters specified in List II or List III’.

“The collection of statistics to further, economic and social planning and ensure social security and insurance is definitely within the premise of the State and when such action is taken by way of a legislation or even by executive fiat, permissible under Article 162 (extent of executive power of the State) of the Constitution, conferring privileges or favours on any particular community found to be backward or attempting to bringing in such schemes or welfare measures; that cannot be faulted,” it then asserted.

To the petitioners’ argument that the states must identify marginalised castes by appointing commissions, the court cited the Indra Sawhney judgment to assert that “the appointment of commissions is not the only procedure, method or approach to be adopted in identification of backwardness, and there is no such thing as a standard or model procedure/approach”.

It also accepted the state government’s submission that the details being collected from people are those that are normally declared at the time of admission to a school, or for opening a bank account. 

The court further pointed out that Karnataka had carried out such a survey, although through a commission that was empowered by legislation. However, the Patna High Court said this “only reinforces the power of the State to carry out such a survey for collection of data, to achieve the constitutional goal of uplifting the downtrodden and the marginalised”.

(Edited by Uttara Ramaswamy)

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