The Patna high court on Wednesday reserved its judgement for a day, after completing the hearing in the petition challenging and seeking an interim stay on the Bihar caste-based survey.
A division bench of chief justice K Vinod Chandran and justice Madhuresh Prasad said it would grant interim relief to the petitioners if it found the state government had either exceeded its powers to commission such a survey; not followed the due process of law; or if there was an infringement of privacy of the respondents.
“We will grant you interim relief if there is a violation of any of the three issues, otherwise we will allow them (the state government) to continue (with the exercise),” said justice Chandran.
Also Read: Caste census in last stage, halting it will cause loss to exchequer: Bihar govt to HC
Carrying forward his arguments from Tuesday, advocate general (AG) PK Shahi said the caste-based survey was absolutely voluntary, and not compulsory like the census. He was responding to the petitioners’ contention that the 17 socioeconomic indicators as well as the caste status sought from nearly 127 million respondents in 29 million households of Bihar as part of the caste-based survey, was as good as the census, which was the sole prerogative of the Centre.
“An enumerator of caste-based survey cannot force anyone to make a disclosure, whereas in census, one is legally bound to answer the questions, as per the Census Act, 1948,” said Shahi.
As such, there was no compulsion whatsoever on any respondent to participate in the caste survey, he added.
He also said that no enumerator of the caste-based survey had unhindered access to anyone’s house, unlike in census, where the enumerator had access to any individual’s house, as may be required with regard to census work.
He said both the houses of the legislature had last year passed a unanimous resolution for the caste-based survey, after which the Bihar cabinet gave its nod.
Shahi said this in defence of the petitioner’s assertion that there was no legislation in place before undertaking such an exercise, and it was being done by an executive order.
Chief justice Chandran had also sought to know why the state government stopped short of bringing a legislation to back the caste survey, to which the AG was evasive, saying the two houses had unanimously passed a resolution to this effect.
Shahi also contended that the survey did not impinge on the privacy of individuals, as all the information sought from the respondents were already in public domain, and the state government was only collecting and collating information available in bits and pieces.
Referring to the exception being taken that disclosure of caste tantamount to breach of privacy, the AG said it was hypocrisy in Indian context where caste was deep and pervasive.
It would be impracticable and unworkable to ignore caste, which was endogamous, he added.
Shahi said the state government had made provision to meet the expenditure for the survey through a supplementary budget (2022-23), passed by the legislature, and it was not using ₹500 crore for the survey from the Bihar Contingency Fund.
He said the state had the authority and the power to conduct such a survey to know about its population and plan out welfare schemes to rid the society of inequalities, and that there was no such law, which prohibited it from doing so.
Any effort to stall the exercise, which was in its final stage, would cause immense loss to the state exchequer, as the Bihar government had already spent around ₹115 crore, and had to pay another ₹11.6 crore for printing more than 30 million forms for the survey, the government claimed in its affidavit, a copy of which was seen by HT.
Earlier, Abhinav Srivastava, arguing for petitioner Youth for Equality, an organisation against caste-based policies and reservations, said the caste-based survey was in violation of the right to privacy under Article 21 of the constitution and contrary to the law laid down on data collection by the constitution bench of the Supreme Court in KS Puttaswamy vs Union of India (2017), commonly referred to as the Aadhaar judgment.
He said the collection of personal data by the state was not being done under a law but an executive order.
“Right to privacy in relation to personal data being a protected right under Article 21, collection of personal data can only be undertaken under a law,” Srivastava said before the judges.
He said race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history were sensitive personal information, according to the apex court’s judgement in the Aadhaar case.
He also claimed that there was no provision of data security or information on storage, use and transfer of personal data under the executive order.
Srivastava said the state’s decision to conduct a caste census was arbitrary as it had not specified the objective of the exercise, defined the criteria of caste, how to establish the caste of an individual, how to verify the authenticity of the caste declared in the census, and how the data would be utilised.
He said the state’s attempt to pigeon-hole its people into one caste or another was constitutionally impermissible as caste was not defined in Indian Constitution, and Article 14 to Article 16 prohibited discrimination on the basis of caste.
The counsel said there was no provision under the Constitution to conduct a comprehensive caste census whereby all the citizens were asked to declare their caste.
The high court is hearing a bunch of public interest litigations (PILs) against the caste survey.
The Bihar government launched the caste survey exercise on January 7. It plans to compile data on each family both in physical form and digitally through a mobile application as part of the survey from the panchayat to the district level.
The exercise is being completed in two phases.
In the first phase, the number of all households in the state were counted.
In the ongoing second phase from April 15 to May 15, data pertaining to people of all castes and religions are being collected.
