The petition argues that under the Census Act, 1948 and as per the Seventh Schedule of the Constitution, only the Union Government is empowered to conduct a census in the whole or any part of the territory of India.
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THE Bihar Government's decision to hold a caste-based census in the state has come under challenge at the Supreme Court in a public interest litigation ('PIL') filed by one Akhilesh Kumar, a resident of the state. The PIL was mentioned yesterday morning by the advocate before the Chief Justice of India Dr. D.Y. Chandrachud, who agreed to list the matter on January 20.
Reacting to the court agreeing to an urgent listing of the matter, the deputy chief minister of Bihar, Tejashwi Yadav, said, "The Census is our commitment to the welfare of the people of Bihar and the proposal was passed in the legislative house unanimously by all parties".
On June 6 last year, the Bihar government had issued a notification of its intention to conduct a caste census.
The petition argues that under Section 3 of the Census Act, 1948, only the Union Government is empowered to conduct a census in the whole or any part of the territory of India.
Referring to the Seventh Schedule of the Constitution, the petition argues that there is no mention of census or caste census in the State List or the Concurrent List. It adds that only Entry 69 in the Union List mentions a census. The petition, thus, argues that it is the Union Government and Parliament alone which are competent to legislate law on census.
The petition also asserts that development schemes for people of the weaker sections are available and provided to all castes across the board since Independence.
"The weaker section has been categorized by the State of Bihar as [Economically Backward Class], Scheduled Caste & Scheduled Tribe and schemes related to their welfare are provided to them through the mechanism set up by the State Government. Thus, the government schemes for welfare of the weaker sections namely Scheduled Caste, Scheduled Tribes, Labourer Class people below poverty line have been taken care of by introducing and implementing various welfare schemes to eradicate and to provide source of livelihood and employment to the weaker & marginalized members of society", the petition avers.
The petition also avers that the State is under a constitutional obligation to eradicate caste and racial conflict.
The petition claims that modern-era caste system in India is entirely distinguishable from the Varna system.
"Recent scholarship suggests that the discussion of 'Varna' as well as 'untouchable' outcastes in these texts does not resemble the modern-era caste system in India. In this connection reference may be made to Patrick Olivelle, a professor of Sanskrit and Indian Religions and credited with modern translations of Vedic literature, Dharma-sutras and Dharma-Shastras, states that ancient and medieval Indian texts do not support the ritual pollution, purity-impurity as the basis for Varna system. He further states that "we see no instance when a term of pure/impure is used with reference to a group of individuals or a Varna or caste". Thus, it is evident that Varna System in ancient and medieval India was based on Varna as described in Rig Veda, Manusmriti and Dharmasastras.", the petition claims.
It adds that the Mahabharata discusses the Varna system in Section 12.181.
"The first model described Varna as colour-coded system, through a sage named "Bhrigu". This description is questioned by another prominent sage Bharadwaja who says that colours are seen among all the Varnas. The Mahabharata declared that there is no distinction of Varna's. The whole universe is Brahmins, it was created by Brahma, came to be classified by act. The Bhagavad Gita describe the professions, duties and qualities of members of different Varna's", the petitioner claims.
It goes on to state that the caste system which exists today is thought to be a result of developments caused due to the collapse of the Mughal era and the rise of the British Raj in India. The British Raj made caste organisation a central mechanism of administration between 1860 and 1920. The petition thus claims that the varna and caste systems are different.
In December 2021, the Union Government had told the Supreme Court that the Socio-Economic and Caste Census (SECC), 2011 was "not" the data on Other Backward Classes ('OBC'), and was not made public as it was found to be flawed and was bound to mislead. The government said it fully supported reservation for OBCs but the exercise would have to be in line with the 2010 verdict of a Constitution bench of the Supreme Court, which had laid down triple conditions, the fulfilment of which is a prerequisite. These conditions include setting up a dedicated commission to conduct a contemporaneous, rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies within the state.
The response had come following a petition by the Maharashtra government seeking direction to the Union Government and other authorities to disclose to the state the raw caste data on OBCs from SECC 2011, which had not been made available to it despite repeated demands.