Flip-flop Stand?

By Dr Swati Jindal Garg

It is said that no religion, race or caste is greater than humanity. However, recent flip-flops by the Patna High Court regarding a caste survey by the state government and its legality have put the focus on this issue once again.

The Bihar government started a caste-based head count on January 7, 2023, and it was touted as “historic” step—an exercise that would provide scientific data for carrying out welfare schemes for weaker sections of society. Chief Minister Nitish Kumar even said that the caste-based enumeration exercise could be beneficial for all. While

the BJP was critical of this exercise, all constituents of the ruling Mahagathbandhan demanded that the exercise be undertaken at the earliest.

In the exercise that was to be conducted in two phases across Bihar, all households were to be covered in the first phase, while in the second one, which was to start in March, data on people belonging to all castes, sub-castes and religions was to be collected. The caste-based census was to be completed by May 2023, and the state government was to spend approximately Rs 500 crore from its contingency fund for the exercise.

While the first phase was carried out from January 7 to January 12, a bunch of petitions were filed in the Patna High Court against the survey and a stay imposed. The government was by then in the middle of conducting the second phase of the survey, which began on April 15 and was to be completed by May 15.

In its interim order, the Court said that the executive did not have the jurisdiction to conduct caste-based surveys. Earlier, the Court had also said that the privacy of the public had been violated by the caste-based survey.

However, in a complete turnaround, a division bench of Chief Justice KV Chandran and Justice Partha Sarthy upheld the caste-based survey and allowed the state government to continue with it, stating: “We find 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 of 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 the furtherance of a ‘compelling public interest’ which in effect is the ‘legitimate State interest’.”

The petitioners decided to approach the Supreme Court against the High Court’s verdict. Their advocate, Dinu Kumar, reportedly said: “We want to know why the Court dismissed the petition. Earlier, it had put a stay on the survey, emphasising that the state does not have the right to conduct any caste survey.” The Supreme Court took up the petition, but adjourned the hearing to August 14 and declined to grant any status on the order till the next date of hearing.

The High Court order came after six petitions challenged the caste survey on the grounds of data protection, competency of the state government to carry out the exercise and the expenditure of over Rs 500 crore on it. In its latest order, the Court said that caste has been found to be “an important indicator to understand backwardness since historically the deprivations visited on communities were based on their caste names”.

“The mere unfortunate circumstance of birth within one caste cannot lead to a man or woman being excluded from the privileges and benefits enjoyed by the other members of society and when it becomes the accepted normal and the general norm, then there can be no claim of equality within society,” it ruled. “It is hence, the Constitution framers felt that Article 15 and 16 which ensures prohibition of discrimination on grounds inter alia of caste and assures equality of opportunity in matters of public employment, should be impelled with a condition to uplift the marginalized sections of society and bring them at par with the privileged class…,” the Court stated.

Elaborating its stand on issues of data security and privacy that were raised in the petitions, the bench said: “Details apart from national security, the State may have justifiable reasons for the collection and storage of data. In a social welfare State, the Government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital State interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients.”

Taking due note of the process followed while performing the caste based survey, the Court observed that it was found that “there is absolutely no coercion applied… nor is there a single complaint made regarding coercion to disclose the details”. It said the survey was “not individual centric” and was “not aimed at targeting an individual”.

Putting the fears of the opposition at rest, the Court said: “As we discern, 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, labelling 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 uplift.”

The Court also approved the act of the administration by saying: “If the executive authority is found to be within its competence to frame a policy for better administration of the State… the Court cannot and should not overstep the limits and tinker with the policy, the framing of which is in the exclusive domain of the State.”

As to the question of expenditure, the Court did not find much merit in that contention and said that the supplementary budget for caste survey was passed by the assembly after taking into consideration the availability of funds.

The verdict has come as a major push to the Nitish Kumar-led alliance government, which has been pitching its demand for a nationwide caste census ahead of the 2024 polls. Kumar has set a precedent by deciding on a Bihar-specific caste survey after the centre refused to do a nationwide survey and is calling it a victory for social justice. What remains to be seen now is that whether other states will follow. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi