On Friday, 6th October,2023, the Supreme court adjourned the hearing of pleas challenging the constitutional validity of the caste-based survey conducted by the State government in Bihar till January 2024. The court refused to pass any order of stay to restrict the State from acting on the said data.
A division bench of Justices Sanjiv Khanna and SVN Bhatti is currently hearing a plea by NGOs ‘Youth for Equality’ and ‘Ek Soch Ek Prayas’ against the Patna HC’s verdict delivered on 2nd August, 2023, to uphold the State government’s decision to undertake caste-based survey (Ek Soch Ek Prayas v. Union of India and ors).
Arguments made by the advocates before the Supreme Court
Citing a precedent set in a previous case, Senior Advocate Aparajitha Singh argued that the Bihar government’s decision to seek caste details was contrary to the judgement of the Supreme Court in KS Puttaswamy, which recognised the ‘right to privacy’ as an element of the ‘right to life’ under Article 21 of the Constitution which is a fundamental right, as the State government failed to show any ‘legitimate purpose’ for the said survey. Therefore, she requested the court to pass an interim order of status quo, asking the Bihar government to not act upon the survey data as it was collected unlawfully.
When Justice Khanna asked the State about the reasons for publishing the data, Senior Advocate Shyam Divan, representing the Bihar government, counter argued that no order against the publication of the data was passed by the court.
The Supreme Court observed that the matter requires to be heard at length and the bench adjourned the hearing until January 2024. It also issued formal notice to the state on the clutch of petitions.
In response to this, Senior Advocate Singh expressed her concerns and argued that by the next date of the hearing, the State government will have published the data and thus urged the court to issue an order of status quo.
The bench, disagreeing with her contention, Justice Khanna remarked that the high court’s judgement was fairly detailed and prima facie, she would be in some difficulty with respect to that. After having read the judgement, the bench formed a prima facie view, which is subject to change.
Justice Khanna also explained that one of the main issues that will be considered by the Supreme Court while hearing the challenge against the constitutionality of the government’s caste survey will pertain to the data breakdown.
Events that have taken place so far
The caste survey was being carried out in two specific phases. The first phase, wherein the state conducted a household counting exercise in January this year.
The second phase of the survey commenced on April 15, wherein the focus was on gathering the data related to citizens’ caste and socio-economic conditions.
The entire process which was scheduled to be completed by May this year, came to a halt as a single-judge bench of the Patna High Court stayed the caste census, ruling that the survey appeared to be a census, which could only be carried out by the Central government.
Subsequently, the state government moved the Supreme Court against the High Court’s stay order. However, the Supreme Court refused to relax the interim stay and asked the State government to approach the High Court. After the challenge to the survey was dismissed by a division bench of the High Court on 1st August, the matter again reached the Supreme Court.
In August, Senior Advocate CS Vaidyanathan led the charge for the litigants challenging the caste survey wherein he raised impertinent questions and concerns regarding the constitutionality of the survey. He raised concerns over the mandatory disclosure requirement under the survey as they may be violative of one’s privacy. In response, the bench questioned if the right to privacy under Article 21 of the Constitution would be breached, given the government plans to release only aggregated, not individual, data and asked if conducting a caste survey in Bihar, a state where every person knows their neighbour’s castes, violated participants’ privacy.