SC judge recuses from hearing Bihar govt's caste survey plea

Supreme Court judge Sanjay Karol on Wednesday recused himself from hearing a plea filed by the Bihar government challenging a Patna high court order granting a stay on the caste survey it was conducting.

Justice Karol, who was the chief justice of the Patna high court before being elevated as apex court judge on February 6, said that he was party to some of the related litigations which were earlier heard in the high court.

The apex court bench, also comprising Justice B R Gavai, then directed that the matter be placed before Chief Justice of India D Y Chandrachud for constitution of an appropriate bench.

In an appeal filed before the Supreme Court against the May 4 order of the high court, the Bihar government said the stay will adversely affect the entire exercise. The state government said the collection of caste-based data is a constitutional mandate under Articles 15 and 16.

Article 15 of the Constitution says the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, while Article 16 states there shall be equal opportunity for all citizens in matters relating to employment or appointment to any office under the State.

"The state govt has already completed more than 80 per cent of the survey work in some districts and less than 10 per cent of the work is pending. The entire machinery is working at ground level. There shall be no harm in completing the exercise subject to final adjudication of the dispute.

"The time gap to complete the survey would adversely affect the survey since this would not be contemporaneous data. The stay of collection of data itself would cause a huge loss to the state since, if finally the action of the state government is upheld, it would be required to put logistics in place with additional expenditure and burden on public exchequer," the plea said.

Hearing a clutch of petitions, the high court had directed the state government to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed.

The high court has fixed July 3 as the next date for the hearing.

"Prima facie, we are of the opinion that the state government 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 high court had said.

Expressing concern, the court noted the government's intention was 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 the right to life, it had said.

"The state government cannot attempt to carry out a caste census in the garb of a survey, especially when it 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 said.

"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," it said.

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 interim relief in the form of a stay on the survey was turned down. The apex court had refused to interfere and referred them back to the high court with the direction that their petition be decided expeditiously.