Patna: The much talked about caste-based census in Bihar has been halted by an order from Patna High Court.
"Rs 500 crore is to be spent on the caste census, which will be a misuse of money which is why the court has agreed that this policy is against the constitution, statute & census Act of 1948..," Dinu Kumar, Petitioner, Advocate said on Thursday. The petitioner also informed the media that the next hearing in the matter will be on 3 July, 2023. The court has directed the ruling govt to protect the data collected in through the census till date as it is a sensitive data. The lawyers argued that there is no provision in our constitution to hold such census and merely through a policy decision the ruling government passed a resolution for such census to he held in the state which is against the constitution.
Data integrity and security issues
The court said, "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."
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.
State has now power to carry out such activity
"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 cannot attempt to carry out a caste census in the garb of a survey, especially when the state 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 at 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.
First round of survey complete
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.
(with PTI inputs)
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