‘No object found, violates privacy’: Why Patna HC stayed Bihar’s caste-based survey

Noting that the caste survey was essentially a census, which the state government did not have the authority to undertake, the high court imposed an interim stay on the exercise.

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"THE caste-based survey is a census in the garb of a survey," which the Bihar government did not have the legal authority to conduct, the Patna High Court held on Thursday, imposing an interim stay on the exercise that began in the state in January.

The stay imposed by a division Bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad of the high court will operate till the next date of hearing on July 3. The state government was directed to secure the data already collected and not disclose any of it till final orders are passed in the writ petitions.

The Bihar government had issued a notification on June 6 last year for undertaking a "caste-based survey" in the state. The exercise began in January this year. It was submitted by the state during the proceedings before the court that 80 percent of the work has already been done.

'No objective found'

The high court concluded that nothing was placed on record regarding the deliberations conducted or the objects sought to be achieved by the Bihar government before embarking on "such a massive exercise", that too for the collection of details "which include the sensitive issue of caste".

Undertaking an exact calculation of the caste matrix within Bihar has been on Chief Minister Nitish Kumar's mind, at least for a while. The size of the population of Other Backward Classes (OBCs) is of particular interest.

The exercise might have been delayed since Kumar's party, the Janta Dal (United) was in coalition government with the Bharatiya Janata Party (BJP) after the state's Vidhan Sabha elections in 2020. The coalition fell through in August last year, and a new coalition government of the JD(U), the Rashtriya Janata Dal (RJD), the Indian National Congress, the Communist Party of India (Marxist), the Communist Party of India, the Communist Party of India (Marxist-Leninist) Liberation, and the Hindustani Awami Morcha, collectively known as the Mahagathbandhan, was formed.

With the caste survey, the ruling JD(U) and RJD hope to show they are interested in addressing the social and economic backwardness of the OBCs and reap electoral dividends in next year's Lok Sabha elections.

Meanwhile, the BJP has continued to oppose the exercise in the state and at the national level. Its opposition has given rise to speculation that it might be trying to avoid caste-related data out of the fear that it may reveal numbers unsavoury to its line of politics and invoke a political consciousness among OBCs that is inimical to the BJP's Hindutva politics. This, despite having made significant electoral inroads in the OBC community in northern India.

One of the petitioners before the Patna High Court, Youth for Equality, an organisation against caste-based reservation, believes that the real objective behind the caste survey is to "stoke caste sentiment and garner votes by deepening the caste divide further by widening the already rife caste gap in the state".

"The caste survey was conducted in the garb of a census. No real objective was stated by the Bihar government before initiating the survey," Bihar State President of Youth for Equality, Dr Nikhil Ranjan Choudhary told The Leaflet.

To a question that would the organisation have objected if the Union government had undertaken a survey of castes as it did through the Socio Economic and Caste Census in 2011, Choudhary replied: "Yes. After the Union government did a caste census in 2011, the data obtained was declared useless. It had so many gaps that it couldn't be used for anything. It was not made public for the same reason."

Census or survey?

Noting that the relevant statutes do not define the words 'census' and 'survey', the high court parsed their definitions through dictionaries it considered credible.

Black's Law Dictionary, widely considered the most authoritative, comprehensive law dictionary, defines 'census' as an official count of people, made for the purpose of compiling social and economic data of the political subdivision to which the people belong.

'Survey', on the other hand, is defined in the Oxford Advanced Dictionary, the first advanced learner's dictionary of English, as an investigation of the opinions, behaviour, etc. of a particular group of people, which is usually done by asking them pre-framed questions, the high court outlined.

The essential difference between a 'census' and 'survey', the high court observed, is that a 'census' contemplates the collection of accurate facts and verifiable details, while, a 'survey' is intended at the collection and analysis of opinions and perceptions of the general public which may be aimed at a specific community or group of people or the extended community of a polity.

"Viewed from the above perspective, the present exercise by the state of Bihar can only be seen as an attempt to carry out a 'census' under the name of a 'survey'," it was held.

Entry 69 (Census) of List I of the Seventh Schedule of the Constitution confers the exclusive power to make laws in relation to a 'census' to the Parliament.

Under Section 3 of the Census Act, 1948, only the Union government is empowered to "declare its intention" by a notification in the Official Gazette to take a census in the whole or any part of the territories to which this Act extends, whenever it may consider it necessary or desirable to do so.

The power to carry out a census being in the exclusive domain of the Parliament, the state legislature cannot embark upon such an exercise, the high court observed.

Advocate Yadunandan Bansal, who represented non-governmental organisation Ek Soch Ek Prayas, one of the petitioners in this case, before the high court told The Leaflet, "A survey can only be for a specific purpose and conducted on a specific group of population. The state government is conducting a census on the pretext of a survey."

'Privacy would be violated'

The court found it a matter of "grave concern" that the government intends to share the data so collected with different political parties constituting the Bihar Vidhan Sabha. This raises larger questions of privacy, which the Supreme Court held to be a facet of the right to life in its landmark judgment in Justice K.S. Puttaswamy (retd) versus Union of India (2017), it was observed.

Objections were also raised by petitioners about the provision on acquiring details about caste and income of every family member from the "head of the family" and not from respective individuals. In the situation of non-availability of such a "head of the family", details could be gathered through neighbours and relatives, the notification prescribed.

This "itself militates against the veracity and integrity of the data supplied" and went against the contention of the state government that disclosures under the survey would be voluntary, the court held.

Any collection of citizens' data by the government should be with sufficient protection afforded for the citizens' personal details; if not ensured, it would lead to unrestricted dissemination of the information collected, leading to the infringement of informational privacy and the individual's autonomy to decide how sensitive personal data is to be used, the court reasoned.

The Advocate General for Bihar had contended that the nature of data being collected is already in the public domain; different individuals having given it for the purpose of availing reservation, social welfare measures, getting employment, and so on and so forth.

The high court rejected this submission, stating, "If the details are available in the public domain, we fail to understand why such a massive exercise, expending public resources has to be undertaken."

On the question of privacy, Dr Choudhary told The Leaflet, "The high court accepted our plea and said 'it is a matter of great concern'. What if a hacker gets access to the data collected?"

"The Data Protection Bill has not been passed. The Bihar government shouldn't have done it without it being enacted first," Bansal told The Leaflet.

Transgender persons' concern

Another concern raised before the high court was that transgender persons were to be recorded as a caste in the caste survey. Certain petitioners had argued that this goes against the principles enunciated in the Supreme Court's judgment in National Legal Services Authority versus Union of India (2014), and that transgender persons' "individual identity and entity were compromised by putting them together as a caste".

The high court, however, did not make any observations regarding the above at this stage.

Click here to view the Patna High Court's order in Youth for Equality & Ors versus The State of Bihar & Ors.