No Supreme Court stay on publication of Bihar caste survey data

“Your caste is known to your neighbours,” says Justice Sanjiv Khanna, asking how the survey violated the privacy of respondents; insisting on caste is not “today’s thinking”, says petitioner’s lawyer

August 18, 2023 07:09 pm | Updated August 19, 2023 07:35 am IST - New Delhi

An enumerator collect information from residents for a caste-based survey in Patna on August 2, 2023.

An enumerator collect information from residents for a caste-based survey in Patna on August 2, 2023. | Photo Credit: PTI

The Supreme Court on Friday refused to stay the uploading of data collected in the recently concluded Bihar caste-based survey while debunking claims that the Nitish Kumar government has violated the fundamental right to privacy by compelling people to reveal their caste.

“How is the right to privacy affected when somebody is asked to give his caste or sub caste? That individual data is not released to the public… What is released is the cumulative figures,” Justice Sanjiv Khanna observed.

Also Read | Bihar may pass law to complete caste-based survey: Minister Vijay Kumar Chaudhary

Caste compulsions

Senior advocate C.S. Vaidyanathan, who appeared for the NGO, Youth for Equality, against the survey, said that people could not be “compelled to reveal their caste”.

“Your caste is known to your neighbours…. Which of the 17 questions asked in the survey amounts to a violation of privacy,” Justice Khanna asked.

Mr. Vaidyanathan said that there were questions on caste, religion, and personal income. “Only thing voluntary is your Aadhaar information,” he said, adding that insisting on caste was just not “today’s thinking”.

However, Justice Khanna questioned the element of compulsion. “There is no penalty involved if a person chooses not to fill this up,” the judge pointed out.

‘Statutory backing needed’

Mr. Vaidyanathan said that the survey had been undertaken on the basis of a mere executive order passed on June 6, 2022. An exercise impinging on a fundamental right — in this case, privacy — should have statutory backing, he argued.

“A fundamental right cannot be infringed upon on the basis of an administrative order,” he said.

Senior advocate Shyam Divan, for the Bihar government, said that the petitions against the survey were “completely motivated”, noting that the survey had been completed on August 6.

“This is a social survey. The information got from the exercise would be analysed,” Mr. Divan said, adding that the State’s welfare measures would be tailored on the basis of the data collected from the survey. He assured the court that individual data would be protected.

No stay for now

Senior advocate Aparajita, for a petitioner, urged the Bench to stay the uploading of the survey data.

“We will not stay anything till we are prima facie convinced there is a need for that… The State has already a High Court judgment in its favour. The exercise is complete. The data will be available in public,” Justice Khanna responded.

The Patna High Court had upheld the legality of the survey on August 1.

‘Census powers with Centre’

The petitioners have argued that Bihar had no authority to conduct such a survey, which was an attempt to usurp the powers of the Centre. “Only the Union has the authority to conduct census in India. The State government has no authority to decide and notify the conduct of caste-based survey in Bihar. The notification is null and void,” the petitioners said.

They contended that the survey had violated Schedule VII of the Constitution, the Census Act, 1948 and the Census Rules, 1990. The petitioners highlighted that the census appeared in Entry 69 in the Union List in the Seventh Schedule of the Constitution. Their pleas argued that the survey notification in June 2022 was ultra vires, or beyond the powers, of Sections 3, 4, and 4A of the Census Act, 1948, as well as Rules 3, 4 and 6A of the Census Rules, 1990.

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