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The Patna high court on Thursday ordered a stay on the caste survey being conducted by the Bihar government.
Hearing a bunch of petitions, a division bench of Chief Justice K Vinod Chandran and Justice Madhuresh Prasad directed 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.
The court has fixed July 3 as the next date for the hearing.
"We are of the considered opinion that the petitioners have made out a prima facie case against the continuation of the process of caste-based survey, as attempted by the state of Bihar. There is also the question raised of data integrity and security which has to be more elaborately addressed by the state," the court said.
While Prashant Kumar Shahi, Advocate General (AG) along with his team of lawyers argued on behalf of the state government, senior advocates Abhinav Srivastava, Dhananjay Kumar Tiwari and others represented the petitioners during the argument.
During arguments, counsels for the petitioners relied on the decision in National Legal Services Authority (supra) to point out that the transgenders' individual identity and entity were compromised by putting them together as a caste. Though they have been qualified as a backward community for the purpose of getting state relief, there is no reason to put them in a single caste category, which caste category does not really exist.
It was pointed out that though the government has clarified that transgenders would not be classified as a caste, the classification remains in the guidelines issued by the state government, which prejudices them, one of the lawyers of the petitioners told the court.
"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 HC said.
Expressing concern, the court noted the government's intention to share data from the survey with leaders of different parties in the state assembly.
"There definitely arises the larger question of the right to privacy, which the Supreme Court has held to be a facet of right to life," it said.
The state government cannot attempt to carry out a caste census in the garb of a survey, especially when it has absolutely no legislative competence and, in that circumstance, neither can an executive order be sustained under Article 162 of the Constitution of India, the court clarified.
"The essential difference between a ’census' and ’survey', is that the former contemplates collection of accurate facts and verifiable details, while a survey is intended as 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.
"Both result in an analysis of the data collected; which in the case of a ’census' are empirical, while in a ’survey' are mostly logical conclusions. 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 said.
The HC also observed that the notification issued by the state government does not disclose any perceivable object for carrying out such a survey.
"It is argued that in addition to the total absence of data integrity, there is also no measure implemented by the state government to ensure data security. Even if the collection of data is on a voluntary basis, there can be no public consumption of such data, which would again violate the right to privacy of an individual; even if the data is given voluntarily", the court said.
"There is no legislation to support the caste-based survey and in fact, there is no legislative power conferred on the state government to carry out such an exercise. There is absolute absence of statement of objects which should also be a reasonable one having nexus with the ultimate aim and contemplated prior to the notification or simultaneous to its issuance. The action cannot be substantiated through any object or explanation, stated in the counter affidavit filed to the writ petition," the HC said.
The existing guidelines also prohibits the caste of the mother to be entered as that of the child; which is in violation of the Supreme Court declaration that the backwardness of a person, for the reason of his belonging to a caste, should be determined by the circumstance in which he grows up, the HC observed.
The first round of caste survey in Bihar was conducted between January 7 and 21. The second round started on April 15 and was supposed to continue till May 15.
The petitions before the high court were filed by a social outfit and some individuals, who had last month moved the Supreme Court after their request for an 'interim relief' in the form of a stay on the survey was turned down. The apex court refused to interfere and referred them back to the high court with directions that their petition be decided expeditiously.
Earlier, in the day, Chief Minister Nitish Kumar had expressed annoyance over opposition, from some quarters, to the headcount of castes that was being conducted by his government in the state. Kumar was replying to questions from journalists on a petition in the Patna high court challenging the caste survey.
"The petitioners as well as the government have made their respective submissions. Now we are looking forward to the verdict," Kumar had said.
"But I cannot understand why people have a problem with the survey. The last time a headcount was done was way back in 1931. We certainly have a fresh estimate. After all, the census takes into account respective populations of minorities, Scheduled Castes and Scheduled Tribes every ten years," he had said before the HC stay on the exercise.