Caste survey in Bihar gets high court’s nod

The Patna High Court on Tuesday dismissed the writ petitions against the caste survey initiated by the Nitish Kumar-led Grand Alliance (GA) government, allowing the government to carry out the exercise which the chief minister has pitched as essential and imperative to further the cause of social justice.

Leaders of several parties that are part of the INDIA (Indian National Developmental, Inclusive Alliance) grouping of political parties opposed to the national political hegemon, the Bharatiya Janata Party, have previously separately pitched for similar caste surveys or for social justice to become the issue on which they fight the 2024 national election.

“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 and having passed the test of proportionality, thus 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 of chief justice K Vinod Chandran and justice Partha Sarthy.

Lalu Prasad, Rashtriya Janata Dal (RJD) president, credited Nitish Kumar for the high court verdict terming the decision a victory for backwards and deprived. “I am sure that the survey work will be completed soon and results will be announced,” he said. State parliamentary affairs minister and Janata Dal (United) leader Vijay Kumar Chaudhary said the HC decision clearly shows that the state government is within is right to conduct a caste survey. “Some vested interests wanted to stop the survey. The plan has been defeated by the court,” he said.

It is likely that the legal sanction to the survey, which is aimed at pushing for more reservation for backward classes on the grounds that current quotas are not proportionate with the share of these communities in the population, will engender demand for similar surveys in other states. In Uttar Pradesh for instance, the Samajwadi Party (also part of INDIA) has demanded a caste census.

“Whenever the Samajwadis get a chance, we will get the caste census done. Till the time we are out of government, we will continue to tell the government that social justice without caste census is not possible... using technology, caste census can be done fast,” Akhilesh Yadav, SP national president.

And in a June meeting that he called of opposition leaders, Tamil Nadu chief minister MK Stalin also pushed for a caste survey in the interests of “social justice”. Conducting caste census was a central issue adopted by Indian National Development Inclusive Alliance (INDIA) alliance meeting in Bengaluru in later part of July 2023.

The Union government has been ambivalent about the issue, although it did set up the Rohini Commission to sub-categorise the 27% reservation for other backward classes on the grounds that much of this was being higged by the dominant groupings; this report, however, is yet to be submitted.

Bihar MP and BJP leader Janardan Singh Sigriwal said,“The state government wants to move Bihar towards caste-based frenzy...The government is only talking about the caste survey and not about development, stopping crimes and rising corruption.”

The first round of the caste survey in Bihar was conducted between January 7 and 21. The second round started on April 15, and was scheduled to continue till May 15, but midway through the process the high court stayed the process. It reserved the judgment after concluding the hearing, which continued for five consecutive days from July 3.

The hight court’s stay came on a petition filed by Youth For Equality, which argued that caste survey was violative of right to privacy under Article 21 of Constitution. There were fears that by doing the survey, the state would be stepping on the turf of the Union government, which carries out censuses. The Bihar government went to the Supreme Court in appeal, but the apex court refused to stay the high court’s order.

On Tuesday, citing various orders of the Supreme Court, including the judgment in Indra Sawhney case, and speech of BR Ambedkar, the bench said that the security concerns raised by the petitioners had been taken care of by the state government and “that does not invalidate the survey”.

“It is clear that the Centre, as a matter of policy, decided not to carry out any caste-based enumeration and the mere inclusion of census under entry 69 of List-1 does not preclude the state from carrying out such exercise, as is carried out in Bihar. 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 agreed with the state’s argument that such a process is a criterion to determine backwardness, and also pointed out that this has been accepted by a judgement of a Constitution Bench of the SC.

“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). The state 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.

India did carry out a caste survey along with the 2011 national census, but later scrapped the process claiming the methodology was faulty. The results were never officially released.

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 that further action will 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.

Bihar parliamentary affairs minister Choudhary said the verdict would have far-reaching consequences and similar demands would be raised in other states to compel the governments to go for it. “This one decision has once again brought not focus the farsightedness of chief minister Nitish Kumar to build an inclusive and egalitarian society.”

Social analyst and former director of AN Sinha Institute of Social Studies DM Diwakar said that in the absence of general census 2021, caste census will help the Bihar government plan and identify the marginalised people to bring them to the mainstream. “Moreover, this judgment will give political edge to the Grand Alliance to consolidate their political constituency. Now this will have wider implications and also echo in other states. The Centre will also be under pressure to take a policy decision on this, which it resisted so far,” he added.

The Mahagathbandhan government – an alliance of Kumar’s JD(U), the RJD, and the Congress – ordered the survey after the Centre declined its request for a headcount of social groups other than SCs, STs and religious minorities as part of the Census.

On May 4, while staying the survey, the high court observed that “the caste-based 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”, 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 court said then.