HC upholds Bihar caste survey

The Patna High Court on Tuesday upheld the caste survey ordered by the Nitish Kumar government in Bihar last year as “perfectly valid” and “initiated with due competence”.

A division bench comprising Chief Justice K Vinod Chandran and Justice Partha Sarathy passed the order while rejecting a bunch of petitions challenging the survey, which was ordered last year and began earlier this year.

“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 to both Houses, and the actual survey to have neither exercised nor contemplated any coercion to divulge the details... not having violated the rights of the individual, especially since it is furtherance of a compelling public interest, which in effect is the legitimate state interest. We dismiss the writ petitions, leaving the parties to suffer their respective costs,” said the bench.

The first round of the caste survey in Bihar was conducted between January 7 and 21 this year. The second round started on April 15 and was scheduled to continue till May 15, but midway through the process, the HC stopped it.

The court had reserved the judgment after concluding the hearing, which continued for five consecutive days, from July 3 to July 7.

“It is clear that the Centre, as a matter of policy, decided not to carry out any caste-based enumeration... Karnataka has also done it through a commission and by a legislation, which only reinforces the power of state to carry out such survey for collection of data to achieve the constitutional goal of uplifting the downtrodden and the marginalised,” the bench observed.

The court said “the contention of the State cannot be faulted that one can very well start the process with caste, wherever they are found, to evolve the criteria for determining backwardness”.

“The 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... it is empowered to make special provisions for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and the Scheduled Tribes; which necessarily is not confined to an affirmative action but essentially is an upliftment of such socially and educationally backward communities so as to ensure due recognition and representation in society,” the court observed.

Maintaining that “the power of the State legislature to make laws under the above fields of legislation, without repugnancy to any legislation brought out by the Union, cannot at all be disputed”, the court said, “Articles 15 & 16, while prohibiting any discrimination on grounds of religion, race, caste, sex or place of birth and providing for equality of opportunities in matters of public employment, inherently provides for beneficial schemes for the advancement of socially and educationally backward classes and reservation in favour of citizens, not adequately represented in, the services under the State, its instrumentalities and the various representative bodies of governance.”

Bihar chief secretary Amir Subhani said further action would be taken in the light of the court order. “We will study the order. The ongoing survey has been upheld and now the government would decide on further action,” he said.

“After studying the judgement, we will move the Supreme Court,” senior advocate Dinu Kumar, counsel for one of the many petitioners, told reporters soon after the bench pronounced its verdict in an open court.

Earlier, in May, after the HC’s decision to stay the caste-based enumeration in the state and rejection of interlocutory application (IA) for an early hearing, the Bihar government had filed a special leave petition (SLP) in the Supreme Court. However, the apex court refused to hear the matter till its disposal by the HC.

The Mahagathbandhan government in Bihar – an alliance of CM Kumar’s Janata Dal (United), the Rashtriya Janata Dal, and the Congress — had ordered the survey last year after the Centre declined its request for a headcount of social groups other than SCs, STs and religious minorities as part of the Census.

Earlier, both houses of the state legislature had passed unanimous resolutions in favour of a caste survey.

On May 4 this year, however, the HC had observed that “the caste-based survey is a census in the garb of a survey and that the power to carry out the exercise is exclusively on the Union Parliament, which has also enacted a Census Act, 1948”, and directed the Bihar government “to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed in the writ petition”.

“There is a question of data integrity. 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,” the HC had said.

The state government had already made a budgetary outlay of ₹500 crore for the ambitious exercise.

In Bihar, the numerically powerful OBCs have dominated the political space since the Mandal churn of the 1990s.

Leaders like Lalu Prasad, the RJD supremo who is the father of incumbent deputy CM Tejashwi Prasad Yadav, and chief minister Nitish Kumar, both of whom owe their rise to the Mandal wave, were of the view that a headcount of all castes was necessary since the last time such an exercise was undertaken was in the 1931 census.