The Bharatiya Janata Party (BJP) demanded the resignation of chief minister Nitish Kumar, who had spearheaded the demand for the caste survey.
The Patna high court on Thursday temporarily suspended Bihar’s ongoing caste-based survey, saying the controversial exercise in its present form virtually amounted to a census that impinged upon Parliament’s domain.
The order by a two-judge bench deals a major blow to Bihar’s plans of successfully counting the castes of all 104 million people in the state for the first time since Independence, and is also a political setback to the state’s ruling coalition.
“We direct the state 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,” said the bench of chief justice K Vinod Chandran and justice Madhuresh Prasad.
“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,” it added.
The court fixed July 3 as the next date for the hearing of a bunch of petitions against the survey. In the evening, the state’s general administration department issued an order instructing all district magistrates to stop the exercise.
“As per the information we have, it is an interim, and not the final order. Upon a perusal of the order, the government will think of options like going in appeal,” said deputy chief minister Tejashwi Yadav.
Bihar began the exercise in January when it conducted a physical count of all household. But the operative part of the exercise – when 320,000 enumerators fanned out across the state to ask people their caste and 17 other socio-economic indicators – began on April 15 and was scheduled to end on May 15.
But the court’s preliminary order sided with a raft of petitions that raised objections.
“The petitioners have made out a prima facie case against the continuation of the process of caste-based survey… There is also the question raised of data integrity and security which has to be more elaborately addressed by the state,” the court said.
Counting caste has always been a contentious ask in India. Early British-era censuses enumerated caste in detail but the exercise was discounted after 1931. Independent India abolished the practice and subsequent censuses only counted scheduled castes and tribes.
In Bihar, the call for a caste survey erupted last year and was supported by all parties, though the ruling Janata Dal (United) and Rashtriya Janata Dal led the demand.
Over the past few months, a number of Opposition parties, including the Congress, have picked up the appeal across India, hoping that an enumeration of castes will be a game-changer in reversing the BJP’s deep inroads into the backward groups, and countering religious polarisation. The high court’s order deals a jolt for those electoral plans.
The petitioners against the caste survey – which included social organisation Youth For Equality – originally approached the high court on April 5, but its request for interim relief was orally turned down. Then, they moved the Supreme Court, which on April 28 referred their pleas back to the high court with the directions that their petitions be decided expeditiously.
Bihar chief minister Nitish Kumar has repeatedly said that the state is not conducting a caste census but only collecting information related to people’s economic status for specific steps to serve them better.
But the court was not impressed. “We find 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,” it said.
The judges said they saw three issues before them: Whether the expenditure for the massive exercise was with due sanction of law; whether the exercise was one in accordance with law; and whether the questions asked resulted in an infringement of privacy. On all but the first, they decided against the state government.
The government argued that the survey was voluntary and that all information sought was already in the public domain, adding that the state government was only compiling information available in bits and pieces. Advocate general PK Shahi said the state had the authority to conduct such a survey, arguing there was no law prohibiting it from knowing about its population to devise welfare schemes. He also said the state assembly unanimously passed a resolution for the survey before the cabinet ratified it
But the court said it failed to understand why a legislation was not brought for the survey if there was lawmaking power available with the legislature and unanimous agreement across the treasury and Opposition benches.
“Though it has been vehemently urged that both houses of the state legislature sanctioned the survey, there is nothing placed on record regarding the deliberations made or the objects sought to be achieved by embarking upon such a massive exercise, that too for the collection of details which include the sensitive issue of caste,” the judgment said.
The Bihar government said it spent around ₹115 crore on the exercise. It has to pay another ₹11.6 crore for printing over 30 million forms for the survey, and that about 80% of the work was already done, and that any interruption would delay this exercise. But the court disagreed.
On privacy, the court raised serious concerns. “We also see from the notification issued that the government intends to share data with the leaders of different parties of the state assembly, the ruling party and opposition party which is also a matter of great concern. There definitely arises the larger question of right to privacy, which the honourable Supreme Court has held to be a facet of right to life,” the judges said.
Shahi said he had not read the high court order. “I will be able to say something after I read the order and know on what grounds the court has stayed the exercise,” he added.
BJP’s state unit chief Samrat Choudhary said the chief minister never wanted the caste survey to happen and “enacted a drama for public consumption at the cost of public money”. “Nitish Kumar does not want caste survey in Bihar. His government did not present its side properly before the court, which led to the stay. It is entirely his fault… If his government cannot defend its own decisions in the court, it means it is a failure and such a government must resign,” said Choudhary.
“We are happy with the high court order, and are also prepared for a long drawn legal battle ahead,” said Shubham Kumar, secretary (Bihar), Youth for Equality, an organisation against caste-based policies, one of the petitioners in the case.
Source: Hindustan Times
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