[BREAKING] Patna High Court stays caste census in Bihar till July 3

The Patna High Court on Thursday stayed the caste census in Bihar till July 3, 2023. [Youth for equality and Ors. vs The State of Bihar and Ors.].A bench of Chief Justice K Vinod Chandran and Justice Madhuresh Prasad passed the order on three petitions filed before the High Court seeking a stay, finding that the survey is actually a census, which can only be carried out by the Central government."We find that the castebased 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," the Court said.The first phase of caste census began in January. The second phase is presently going on..The Court heard the pleas specifically on the directions of the Supreme Court to consider and dispose of the interim application filed in the matter for stay. .The petitioners argued that the State cannot carry out a caste census in the guise of a survey, as the authority to carry out a census is vested with the Central government. They further pointed out that there was no disclosed object for carrying out such a survey..Answering the contention of the State that there is no compulsion on any individual to disclose their personal details, the petitioners underlined that according to guidelines, details are to be collected from the eldest family member and in the case of caste status, it could even be from the relatives or neighbors which militates against the claim of voluntary disclosure..Relying on the Supreme Court's decision in KS Puttaswamy v. Union of India, he pointed out that privacy being an inextricable facet of Article 21, there cannot be any compulsory extraction of the personal details from citizens.It was also pointed out that transgenders were included as a caste which goes against the principles enunciated in National Legal Services Authority v. Union of India..On the other hand, Advocate General (AG) PK Shahi for the State argued that the notification for the exercise was issued on June 6, 2022, and that the petitioners are wayfarers who did not challenge the exercise when it started. He contended that the petitioners' delay in filing their writ petition suggested an ill-motivated, malicious attempt to stall a valid exercise initiated by the State..Referring to the equality clause in the preamble of the Indian Constitution, he urged that it has to be read in consonance with the directive principles of state policy.Accordingly, he contended that it was for the ultimate purpose of achieving an ideal situation as contemplated in the directive principles that both Houses of the elected representatives in the State of Bihar unanimously resolved to carry out a caste census. Further, on the question of privacy, the AG asserted that there is no law prohibiting the disclosure of caste nor the exercise of a survey carried out by the State of Bihar. He said that in the Indian context, it cannot be said that disclosure of caste is a violation of privacy; especially when the same is disclosed for the purpose of reservation and availing benefit of welfare schemes by the citizens themselves, voluntarily..Since no statute defines the words 'census' or 'survey', the Court, relying on definitions in various law dictionaries discerned that the difference between a ‘census’ and ‘survey’ is that in a ‘census’ the details of an individual are collected, and in a ‘survey’ often the opinions and perceptions of the targeted persons are collected.Hence, the Court held that exercise by the State of Bihar can only be seen as an attempt to carry out a ‘census’ under the name of a ‘survey’, a power that lies in the exclusive domain of the Union Parliament..Referring to the survey notification, the Court noted that the details of even caste and income of every family member would be taken from the head of the family and not from the respective individual. This, according to the Court, militates against the veracity and integrity of the data supplied.The Court opined that the exercise was not of identification of backwardness but of caste- status of the natives of the State of Bihar. This, it said, was explicit from the requirement in the guidelines to ascertain the caste of an individual, from the head of the family, relative or neighbour. It also questioned that if the exercise was unanimously approved by both houses of the legislature, why a legislation was not brought about especially in the teeth of the argument raised of lack of legislative power..The Court was also unimpressed with the argument raised of delay, especially since the writ petition was 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," the Court added..The Court opined that a prima facie case was made out by the petitioners as there were concerns about data privacy and the State's authority. Therefore, it directed the State government to immediately stop the survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed in the writ petition, which will be heard next on July 3..[Read Order]