The Supreme Court on Wednesday said the law negated a caste census and “the Constitution believes in population and not in caste or religion” even as the Centre insisted that data collated during a Socio-Economic Caste Census (SECC) in 2011 was “fraught with mistakes and unusable” for any purpose whatsoever.
The court’s oral observations came moments before it dismissed a writ petition filed by Maharashtra to direct the Centre to part with the raw data collected in the SECC-2011. The State stated it wanted to use the data for implementing reservation to the Other Backward Classes (OBC) in its local body polls.
“The law is that there should be no caste census.. The Constitution believes in population, not in caste or religion,” the court addressed the Maharashtra counsel, senior advocate Shekhar Naphade.
‘Executive act’
“Caste, religion, all come within the spectrum of census. They [Centre] are showing extreme reluctance to pass on the data [SECC] to us,” Mr. Naphade submitted.
The Centre, represented by Solicitor General Tushar Mehta, clarified to the court that the SECC was not a “census” undertaken under the Census Act of 1948 by the office of the Registrar General of India. It was an “executive act”, independent of the census exercise, and done on the orders of the Ministry of Social Justice and Empowerment. The SECC was organised not as an OBC survey but to get the caste status of all in the country in order to improve the delivery of targeted benefits.
An affidavit filed by the Social Justice Ministry in the Supreme Court in September maintained that a caste census of the Backward Classes was “administratively difficult and cumbersome”. The Centre had clarified in the affidavit that “exclusion of information” regarding any other caste - other than Scheduled Castes and Scheduled Tribes - from the purview of the census is a “conscious policy decision”.
The Centre’s position in court had come amid a growing clamour by political parties for a caste-based census, and the ruling BJP’s silence.
Senior advocate P. Wilson, who is also a Rajya Sabha member and advocate for an intervenor in the case, said ₹4893 crore and two years were spent on the SECC.
Maharashtra said the State had a right to know about the data collected in the SECC, regardless of whether the census was done on the basis of an executive fiat or under the Census Act. Mr. Naphade said the Centre ought to produce the Ministry order for conduct of an SECC.
‘Can’t issue mandamus’
But the court observed that it cannot issue a mandamus to produce the raw data if the SECC was inaccurate and had no “force of law”.
“The affidavit [of the Centre] emphatically states that the data which is collated is not accurate and is unusable for any purpose whatsoever. If that is the stand taken by the respondents [Centre], we fail to understand as to how mandamus can be issued to the respondents to permit State of Maharashtra to use the data for any purpose. Such a direction, if issued, would lead to more confusion and uncertainty which cannot be countenanced,” the court noted in its order.
While rejecting Maharashtra’s plea, the court clarified that the State could pursue other remedies permissible in law. It noted that merely because Maharashtra was obliged to comply with the “triple test” requirement before enforcing the reservation for OBCs in the local bodies did not mean that the Centre could be ordered to share information which it itself had classified unusable. Maharashtra could not be allowed to employ wrong data in the SECC for reservation in its local body elections.
“They [Centre] say the data is wrong. How can we issue mandamus for something which has no force of law. We are not going to create any confusion,” the court said orally.
It pointed out that Maharashtra had constituted a commission to collect empirical data on caste.
In its September affidavit before the court, the Centre said “the view has consistently been that the caste Census of Backward Classes is administratively difficult and cumbersome; it has suffered and will suffer both on account of completeness and accuracy of the data, as also evident from the infirmities of the SECC 2011 data, making it unusable for any official purposes and cannot be mentioned as a source of information for population data in any official document”. Caste-wise enumeration in the census was given up as a matter of policy from 1951. There was a policy of “official discouragement of caste”.
