On May 4, the High Court of Patna ordered an immediate stay on the second phase of a caste census which was being conducted in Bihar till July 3. The first phase began on January 7, 2023, and ended on January 21.
A bench of Chief Justice K Vinod Chandran and Justice Madhuresh Prasad directed that the data collected so far be preserved. The Court passed the order on three petitions filed against the caste-based census by social outfit Youth for Equality and some individuals.
Black’s Law Dictionary defines “census” as an official count of people, made for the purpose of compiling social and economic data of the political sub-divisions to which the people belong. In Webster’s New Collegiate Dictionary, census is defined as the count of a population and property evaluation in early Rome, which is almost a complete enumeration of the population. The Concise Law Dictionary by P Ramanatha Aiyar defines it as an official enumeration of the inhabitants of a state or country with details of sex, age, family, occupation, possession, etc.
“Survey”, on the other hand, as defined in the Oxford Advanced Dictionary, is an investigation of the opinions, behaviour, etc., of a particular group of people, which is usually done by asking them pre-framed questions. Black’s Law Dictionary defines it as an appraisal and a general consideration of something and also includes the measuring of a tract of land. It has also been defined as a poll or questionnaire, especially on examining popular opinions.
The essential difference between a “census” and a “survey” was brought out by the Patna High Court. It noted that the former contemplates a 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. Hence, while in a “census” the details of an individual are collected, in a “survey”, the opinions and perceptions of the targeted persons are collected. Both result in an analysis of the data collected; which in the case of a “census” is empirical, while in a “survey”, it is mostly logical conclusions.
Viewed from the above perspective, the present exercise by Bihar can only be seen as an attempt to carry out a census under the name of a survey and the power to carry it out is exclusively on the Union Parliament, which also enacted a Census Act, 1948, said the Court.
Census is included in List I of the Seventh Schedule of the Constitution at Entry 69. Entries in various Lists of the Seventh Schedule are only fields of legislation and the source of the legislative power is to be traced to Article 246 of the Constitution. Article 246(1) confers Parliament with the exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule.
A state’s power to legislate on the matters enumerated in List II is also made subject to Article 246. Therefore, the power to carry out a census is the exclusive domain of the Union Parliament and the state legislature cannot embark upon such an exercise. The advocate general had specifically referred to Entry 45 in List III, the Concurrent List, which read along with Entries 20, 23, 24 and 30 of this List, show the source from which flows the power of the state.
Entry 45 of the Concurrent List deals with inquiries and statistics for the purpose of any of the matters specified in List II or List III. List I stands excluded and the collection and enumeration of details of caste does not find a place in either List II or List III. Therefore, the power has to be found exclusively confined on the Union Parliament, by virtue of Article 246 read with Entry 69 of List I which deals with census.
Entry 20 of the Concurrent List deals with economic and social planning; Entry 23 with social security and social insurance; employment and unemployment; Entry 24 with welfare of labour, including conditions of work; and Entry 30 is with respect to vital statistics, including the registration of births and deaths. So the collection of caste details is not inextricably linked with any of the specific entries pointed out by the state and these entries are not sufficient and relevant to carry out a collection of caste details from individual citizens, said the Court. Therefore, when the state does not have the power to legislate, the executive government also cannot bring out any orders exercising executive power under Article 162. Article 162 specifically empowers the executive of the state to deal with only matters with respect to which the legislature has the power to make laws.
Executive power under Article 162 can extend to only those areas, which coincide with the legislative power (G.J. Fernandez vs State of Mysore (1967) and when that area is not covered by an enactment (A.P.D Jain Pathasala vs Shivaji Bhagwat, 2011). If there is a power under any of the Entries in List III concurrently on the state and the Union and if there is no law on the subject, either by the Union or the state, then the state would be entitled to bring out an executive order.
In Indira Sawhney vs Union of India, 1992, the apex court held that reservations, by affirmative action, can be provided by Parliament, state legislatures and statutory rules as well as by way of executive instructions issued by the centre from time to time.
Earlier on January 20, 2023, the Supreme Court had dismissed the petitions challenging the caste-based census in Bihar. The bench of Justices BR Gavai and Vikram Nath had referred the matter back to the High Court with directions that the petitions be decided expeditiously.
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 society. The state government had planned to compile data on each family digitally through a mobile application in the survey, from panchayat to the district level.
Suspecting the motive of the petitioners, the apex court disposed of the pleas, terming them as PIL. It said that if the relief sought in the pleas was granted, how would the state determine reservation. It directed the counsels appearing for the petitioners to file an application before the High Court.
One of the petitions was filed by Nalanda resident Akhilesh Kumar, who said that such an exercise violated the basic structure of the Constitution. The petition sought directions to the authorities to refrain from conducting the exercise. It said that 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 those 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:
- 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?
- Was the June 6 notification of the Bihar government 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?
With the High Court pulling up the Bihar government, all these questions are laid to rest for the time being.
—By Shivam Sharma and India Legal Bureau