Explained | Why is Bihar’s caste-based survey going through a problem within the Supreme Court?

The tale to this point: The Supreme Court is ready to listen to on August 18 a batch of petitions difficult the Patna Top Court’s verdict upholding the Bihar govt’s ongoing caste survey. A Bench of Justices Sanjay Khanna and SVN Bhatti on August 14 declined a plea looking for a keep at the debatable survey.

On August 1, in an important reduction to Leader Minister Nitish Kumar, the Patna Top Court allowed the State govt to proceed with the survey after gazing that the motion of the State used to be completely legitimate, initiated with due competence, and within the furtherance of a ‘compelling public hobby’.

On Might 4, the Top Court had issued an intervening time keep at the survey. Following this, the State govt filed a petition looking for an early listening to of the case which the Top Court in the end brushed aside. Due to this fact, the State govt approached the Supreme Court to boost the keep, however the Supreme Court on Might 18 declined the comfort gazing that the Top Court had saved the subject for listening to on July 3. 

From July 3 to July 7, steady hearings have been held by way of the Top Court Bench of Leader Justice Okay.V. Chandran, and the decision used to be reserved for August 1. 

What’s the ongoing ‘caste-based survey’?

On January 7, the State govt introduced a two-phase caste survey in Bihar, mentioning that detailed data on socio-economic stipulations would lend a hand create higher govt insurance policies for deprived teams. Closing yr on June 6, the Bihar govt issued a notification to this impact following a State Cupboard choice on June 2, 2022.

The survey, which can even file the commercial standing of households along their caste, is estimated to gather socio-economic information for a inhabitants of 12.70 crore within the 38 districts of Bihar. The primary part of the survey, which concerned a space record workout, used to be performed from January 7 to January 12. 

The federal government used to be in the midst of the second one part, which had begun on April 15 and used to be to be finished by way of Might 15, however the survey used to be halted after the Top Court keep on Might 4. Following the keep order, the Bihar govt indicated that it is going to take the legislative course to finish the survey ‘at any value.’

Alternatively, with the hot Top Court verdict brushing aside all petitions opposing the transfer, the federal government on August 2 resumed paintings on the second one part of the survey and goals to finish the workout by way of mid-August. In the second one part, information associated with castes, sub-castes, and religions of all folks is to be accrued. The general survey file may also be anticipated in September, not up to a yr ahead of the 2024 common election.

Starting place of caste census and ‘Mandal’ politics

This census didn’t pop out of the blue; the Bihar Meeting in February 2019 had unanimously handed a solution looking for a caste-based census.

The census performed at the start of each decade does no longer file any caste information instead of for the ones indexed as Scheduled Castes.  In reality, the closing census that formally accrued complete caste information used to be in 1931. Within the absence of any such census, there’s no right kind estimate for the inhabitants of OBCs, quite a lot of teams throughout the OBCs, and others.

In spite of the paradox, the Union govt has categorically dominated out carrying out a Socio-Financial Caste Census (SECC), announcing it’s unfeasible, ‘administratively tricky and bulky.’ Responding to a writ petition filed by way of the State of Maharashtra to assemble Backward Categories’ caste information within the State whilst carrying out Census 2021, the Centre in its affidavit mentioned that with the exception of any castes instead of the Scheduled Castes and Scheduled Tribes used to be a ‘aware coverage choice’ followed for the reason that 1951 census, and that there used to be a coverage of ‘professional discouragement of caste’.

The Union govt in 2011 had undertaken a survey of castes in the course of the Socio-Financial and Caste Census of 2011 (SECC-2011). Alternatively, the accrued uncooked information of just about 130 crore Indians used to be by no means made public because of flaws within the information. Knowledgeable committee headed by way of the then Vice-Chairman of the NITI Aayog, Arvind Panagariya used to be tasked with taking a look into it. Alternatively, since different individuals of the committee weren’t named, the committee by no means met; and because of this, no motion used to be taken at the uncooked information to collate it into publishable findings.

Political analysts see the Bihar govt’s transfer as some way for coalition events such because the Janata Dal (United) and the Rashtriya Janata Dal to counter the Bharatiya Janata Celebration (BJP)’s Hindutva politics with a revival of Mandal politics.

The Socially and Educationally Backward Categories Fee (SEBC), popularly referred to as the Mandal Fee, named after Bindeshwari Prasad Mandal, a former Leader Minister of Bihar, used to be established in 1979 by way of the then Janata Celebration govt beneath High Minister Morarji Desai.

Ten years later, on 13 August 1990, the V.P. Singh govt introduced the verdict to put in force the Mandal Fee file, which advisable 27p.creservation for Different Backward Categories (OBC). With the Supreme Court ruling in Indra Sawhney & Others v. Union of India (1992) that caste used to be a suitable indicator of backwardness, the suggestions of the Mandal Fee have been in any case applied.

The Mandal Fee estimated the OBC inhabitants at 52%. Alternatively, it’s arguable whether or not the estimate holds true even lately. Opposition events, particularly regional caste-based events, have persevered to call for a caste census announcing that such an workout is essential to streamline welfare insurance policies. The call for additionally pertains to the query of increasing OBC entitlements within the electoral context.

Why used to be the survey stayed previous?

The Top Court on Might 4 imposed an intervening time keep at the workout after concluding that the Bihar govt didn’t have the felony authority to behavior it since this is a census “within the garb of a survey.”

Throughout the court cases, the State govt apprised a department Bench of Leader Justice Okay. Vinod Chandran and Justice Madhuresh Prasad that 80% of the paintings has already been performed, following which the Bench directed the State to protected the knowledge already accrued and no longer reveal any of it till ultimate orders are handed within the case.

The Court seen that not anything used to be put on file in regards to the gadgets sought to be completed by way of the Bihar govt ahead of embarking on “any such huge workout,” particularly relating to the choice of information referring to the “delicate factor of caste.” It additionally opined that the facility to hold out a census is within the unique area of the Parliament and thus the State legislature can’t embark upon such an workout.

The Court highlighted {that a} ‘census’ comprises the choice of correct information and verifiable main points, whilst a ‘survey’ is meant for the gathering and research of reviews and perceptions of most people, geared toward a selected neighborhood or staff of folks or the prolonged neighborhood of a polity.

The Court additionally raised considerations about privateness, because the State govt intends to percentage the knowledge accrued with the quite a lot of political events constituting the Bihar Vidhan Sabha. It famous that the Supreme Court had dominated privateness to be a side of the correct to lifestyles in its landmark judgment in Justice Okay.S. Puttaswamy (retd) v. Union of India (2017).

The petitioners apprised the Court that the survey required information about the caste and source of revenue of each circle of relatives member from the ‘head of the circle of relatives’ and no longer from respective people. Within the scenario of the non-availability of any such ‘head of the circle of relatives,’ main points may well be accrued via neighbours and kinfolk. Addressing this competition, the Court seen that any such provision raises doubts in regards to the veracity of the knowledge and in addition defeats the competition of the State govt that disclosures beneath the survey could be voluntary.

Why did the Top Court uphold the survey?

Way to reach affirmative motion

In a 101-page verdict, a Bench comprising Leader Justice Okay Vinod Chandran and Justice Partha Sarthy said that the aim of the survey is to spot Backward Categories, Scheduled Castes, and Scheduled Tribes with the purpose of uplifting them and making sure that equivalent alternatives are prolonged to them.

Opining at the competence of the State govt to behavior such an workout, the Court dominated that the survey used to be essential as any affirmative motion beneath Article 16 (equality of alternative in issues of public employment) is best imaginable after the choice of related information in regards to the social, financial and academic stipulations of communities within the State.

The Court additionally relied at the ruling in Indra Sawhney to rule that there’s no fault with the identity of caste in a bid to ameliorate social backwardness as envisoned beneath Article 16(4) of the Charter.

Particularly, the Court recognised that caste has been discovered to be a very powerful indicator of backwardness since traditionally discrimination used to be meted out to communities according to their caste names. It held that the “mere unlucky circumstance of beginning inside of one caste” can’t exclude a person from the privileges and advantages loved by way of different individuals of the society.

Competence of the State govt

The petitioners had challenged the State govt’s competence to behavior the survey by way of contending that best the Union govt has the authority to behavior a ‘census’ beneath Access 69 of the Union Record within the Charter’s 7th Time table, learn with Article 246, which offers with the Parliament’s energy to completely legislate ‘on any of the issues enumerated in Record I (Union listing) within the 7th Time table.’

Brushing aside any such competition, the Court seen that for the reason that government authority is competent to border a coverage for higher management of the State and that framed coverage isn’t arbitrary, the Court can’t and will have to no longer overstep and tinker with the coverage.

The Court additionally didn’t to find a lot benefit within the argument of the caste survey incurring an expenditure of Rs 500 crore, highlighting that the supplementary finances for caste survey used to be handed by way of the State Meeting.

It additionally defined that State governments “can’t wait on their haunches” for the Central Executive to hold out a caste census to verify affirmative motion and the development of socially and educationally backward categories.

Responding to the objection raised by way of the petitioners that States should establish marginalised castes by way of appointing commissions as a substitute, the Court, relating to Indra Sawhney, underscored that the appointment of commissions isn’t the one process for the identity of backwardness and that there exists no such factor as a style process.

Knowledge safety and privateness

Brushing aside considerations about the correct to privateness of the ones being surveyed, because of the queries regarding their faith, caste, and per 30 days source of revenue, the Court referred to the triple-requirement take a look at laid down in Puttaswamy and seen that affordable and proportional restrictions may also be imposed within the State’s professional pursuits.

The Court additionally took into consideration the Bihar govt’s submission that the survey has a foolproof mechanism and not using a probability of any roughly information leakage.

Recognising that the disclosures are voluntary, the Court highlighted that the knowledge is being accrued to not ostracise people or teams however to supply advantages to impoverished sections of society. It used to be additionally opined that the workout is in furtherance of a “compelling public hobby” which in impact is the professional hobby of the State.

The Court identified that it has no longer won even a unmarried criticism alleging coercion to reveal non-public main points.

Why has it been challenged within the Supreme Court?

More than one petitions had been filed within the Supreme Court difficult the survey, claiming that it’s an strive by way of the Bihar govt to usurp the Centre’s powers. The petitioners come with Akhilesh Kumar, a resident of Nalanda, and non-governmental organisations (NGOs) Ek Soch Ek Prayas and Formative years for Equality.

The petitions contend that the State’s June 6, 2022 order notifying the survey is unconstitutional for the reason that Union govt is completely approved to behavior a census beneath the Charter owing to the operation of Access 69 of the 7th Time table’s Union Record; the Census Act, 1948; and the Census Laws, 1990.

Additionally they indicate that the State Executive does no longer have any impartial energy to nominate District Magistrates and native government for collating information for the census, with out a notification beneath Phase 3 of the Census Act, 1948 by way of the Central govt. Accordingly, the petitioners contended that the Top Court ‘erroneously’ brushed aside the writ petitions with out taking into consideration that the State govt lacked the competence to inform any such caste-based survey.

The impugned verdict has additionally been assailed at the floor that it violates the Puttaswamy judgment because it allows the choice of non-public information by way of the State beneath an government order opposite to the regulation on information assortment laid down by way of the Supreme Court.

“The imposition of a caste id on all of the electorate regardless of whether or not they search to avail of the State receive advantages or no longer is constitutionally impermissible being opposite to the a) proper to id b) proper to dignity c) proper to informational privateness and d) proper of number of a citizen beneath Article 21,” reads one of the crucial pleas.

Efficacy of caste surveys

Many sociologists and political mavens are of the opinion {that a} caste census is pivotal in struggling with caste discrimination in India and that ‘caste blindness’ furthers the perpetuation of caste hierarchies. It’s been asserted that the word ‘caste’ has been traditionally related to best decrease castes such because the SCs and the OBCs whilst the higher castes have at all times been perceived as reputedly ‘casteless’. Accordingly, caste surveys lend a hand in mapping out socio-economic deprivations, elementary within the introduction of an egalitarian society.

It is usually predicted that if the Bihar caste census is a hit, then different States can even call for it— a requirement the Union govt is resisting.

In March, an interior caste survey performed by way of the Indian Institute of Era Bombay printed well-liked caste discrimination and psychological well being problems confronted by way of SC and ST scholars. Even though the findings have been utilized by the SC/ST pupil cells to behavior caste sensitisation lessons, the institute in a observation mentioned that the result of the survey have been “even supposing very helpful qualitatively, …tougher to interpret quantitatively.”


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