Monday, May 8, 2023

Caste-based survey raises question of the right to privacy and legislative competence: Patna High Court

Responding to the unanimous resolution to carry out the caste-based survey by both the Houses of the Legislature of Bihar and its approval by the State Cabinet, a PIL was filed on April 5, 2023. It got registered on April 15, 2023. This PIL filed by Youth For Equality was converged with other PILs filed by Akhilesh Kumar, Ek Soch Ek Prayas, Reshma Prasad and Muskan Kumari. These cases were filed the backdrop of the decision of the State Government having decided to conduct a caste-based survey through the General Administration Department, expenditure of which was intended to be taken from the Bihar Contingency Fund, with a target to complete the exercise by February 2023 and a communication issued by the Principal Secretary to the District Officers, also indicates the subject to be of ‘Bihar Caste-based enumeration for determination of caste list for 2022.’ The proforma in which the survey is to be conducted enumerates seventeen heads or details to be collected; one of which is ‘caste’.

A Division Bench of Chief Justice K. Vinod Chandran,and Justice Madhuresh Prasad passed an interim order on May 4, 2023 saying, "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." In the penultimate paragraph of the order, it says, "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 Hon’ble Supreme Court has held to be a facet of right to life."

The order states that "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 order observes, "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. True, there is a compulsion by way of an obligation on the citizen under the Census Act and un-hindered entry conferred on the authorized officers; but also a protection from the records of census not being open to inspection nor admissible in evidence; under Section 15. Though it has been vehemently urged that both Houses of the State Legislature has 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. There are broad reasons stated in the counter affidavit, but nothing comes out from the notification, nor is any specific reasoning or object stated to have motivated the initiation of the exercise of a caste-based survey, which reasoning or motivation should also be relatable to a time, contemporaneous with the time of bringing out the notification. It is also submitted before us that 80% of the work is over and what remains is mere collation of the details collected and the further action based on such data collected and made available to the State."

In its May 4, 2023 order, the Court had posted the the writ petitions for hearing on July 3, 2023. On May 5, the Advocate General mentioned the matter before the Chief Justice and sought an early hearing. The current listing position shows that it is listed for orders before the Chief Justice on May 9, 2023.

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