Supreme Court judge, Justice Sanjay Karol, has recused himself from hearing a petition filed by the Bihar government against the Patna High Court order that had stayed the Caste Census undertaken by the state till July 3.
The matter was being heard by the Bench of Justice BR Gavai and Justice Sanjay Karol.
Justice Karol said that since he had heard some earlier litigation related to the case while he was in the Patna High Court, he could not hear it now.
Justice Karol had earlier served as Chief Justice of the Patna High Court, after which he was elevated to the Supreme Court.
The plea read that the High Court had wrongly examined the merits of the case at the interim stage and touched upon the legislative competence of the State.
The appeal further contended that the High Court wrongly accepted the contention that the survey was a census, and that personal information regarding the same would be shared with MLAs.
It added that the State would have to incur huge financial costs if the survey was stopped at this stage.
Incidentally, the High Court had heard the pleas challenging the ongoing caste survey in Bihar, specifically on the directions of the Supreme Court to consider and dispose of the interim application filed in the matter for stay.
In January this year, an apex court bench led by Justice Gavai had refused to entertain three public interest litigation (PIL) petitions challenging the State’s decision to initiate the caste census.
That bench had, however, granted liberty to the petitioners to approach the Patna High Court.
The Patna High Court on May 9 had rejected the application filed by the state of Bihar, which urged the High Court to prepone hearing in the writ petitions challenging the caste-based survey in the state.
While dismissing the Interim Application filed by the Bihar government, the Bench led by Chief Justice K. Vinod Chandran said that that there was no urgency in the matter and that the pleas would be heard on July 3.
As per the IA, though the May 4 order of the High Court was interim in nature, however, it had adjudicated the issues under consideration. Hence, the writ petitions have in effect and substance been finally decided. No meaningful purpose would be solved by keeping the writ petitions pending and it would be in the ends of justice to dispose of the same, it added.
The High Court today observed that prima facie, the caste-based survey amounted to a census, which the state government had no power to carry out. The manner in which the survey has been fashioned, amounted to it being a census, thus impinging upon the legislative power of the Parliament, it added.
Expressing ‘great concern’ over the state government intending to share data with the leaders of different parties of the State Assembly, including the ruling dispensation and the opposition party, the High Court ordered the State to immediately stop the caste-based survey and ensure that the data already collected was secured and not shared with anybody till final orders were passed in the writ petition.
It also mentioned the right to privacy being an issue in the case.
Earlier on May 4, the High Court had ordered an immediate stay on the second phase of caste census, which was currently being conducted in the state of Bihar, till July 3.
Social outfit Youth for Equality, along with one Akhilesh Kumar and Muskan Kumari had filed three separate pleas against the caste-based census ongoing in the state of Bihar. The first phase began on January 7, 2023 and ended on January 21.
While listing the case for further hearing on July 3, the Bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad had directed that the data collected so far in the case be preserved.
Senior Advocate Dinu Kumar and Advocate Ritika Rani appeared for petitioner Akhilesh Kumar on May 4.
Earlier on January 20, the Supreme Court had dismissed the petitions challenging the caste-based census in Bihar. The Bench of Justice B.R. Gavai and Justice Vikram Nath had referred the matter back to the High Court with directions that the petitions be decided expeditiously.
The petitions before the Apex Court sought quashing of the June 6, 2022 notification issued by the Deputy Secretary of Bihar government in respect to conducting a caste-based survey in the state.
The Nitish Kumar-led government had kickstarted the caste-based Census on January 7 this year, claiming that the exercise would provide scientific data for carrying out welfare schemes for weaker sections of the society.
The state government planned to compile data on each family digitally through a mobile application in the survey, from panchayat to the district level.
Suspecting the motivation of the petitioners, the Apex Court disposed of the pleas, terming them as publicity interest litigation.
It asked the petitioners that if the relief sought in the pleas was granted, how would the state government determine on how to grant reservation.
The top court of the country directed the Counsels appearing for the petitioners to file an application before the High Court. The Bench dismissed all the petitions as withdrawn granting ‘liberty to seek appropriate remedies in law’.
One of the petitions was filed by Nalanda resident Akhilesh Kumar, saying that such exercise violated the basic structure of the Constitution.
The petition further sought directions to the authorities concerned to refrain from conducting the exercise, calling it both ‘discriminatory’ and ‘unconstitutional’.
As per the plea, the notification violated Article 14 of the Constitution, which provided for equality before law and equal protection of the law, adding that it was “illegal, arbitrary, irrational and unconstitutional”.
The PIL pointed out that if the proclaimed purpose of the caste-based survey was to accommodate the people of state suffering from caste persecution, the distinction on the basis of caste and country of origin was both irrational and unjustified.
It added that none of these distinctions corresponded with the ostensible purpose of the law.
The petition raised six important points, which are:
– Whether the Constitution of India gave a State Government the right to conduct caste census?
– Was the notification issued by the Deputy Secretary of Bihar Government on June 6, 2022 against the Census Act 1948?
– Did the Constitution legally permit a state government to issue notification of caste census, in the absence of law?
– Whether the decision to conduct caste-based census was taken unanimously by all political parties of Bihar?
– Was the decision of political parties for Bihar to conduct caste census binding on the government?
– Whether the June 6 notification of Bihar government was against the verdict delivered by the Constitution Bench of the Supreme Court on January 2, 2017 in the Abhiram Singh vs C.D. Commachen case.