SC refuses to bar Bihar from releasing more caste data, but...

The Supreme Court on Friday questioned the Bihar government as to why it published its caste survey data but refused to restrain it from making public further data, and said it may examine if the state has power to conduct such an exercise. 

A bench of Justices Sanjiv Khanna and S V N Bhatti issued a formal notice on a batch of pleas challenging the August 1 order of the Patna high court that gave the go-ahead for the caste survey in Bihar.

The SC bench listed the matter in January 2024.

It rejected the petitioners' contention that the state government has already published some data pre-empting a stay. They sought a complete stay on further publication of data.

"We are not staying anything at this moment. We cannot stop the state government or any government from taking a policy decision. That would be wrong. We are going to examine the other issue regarding the power of the state government to conduct this exercise," the bench said.

The top court, however, questioned the counsel for the Bihar government, "Why did you publish the data?" It said it may examine whether the state has the power to conduct such a survey.

Appearing for the petitioners, senior advocate Aprajita Singh said there is breach of privacy in the matter and the high court order was wrong. 

"This data should not be acted upon as it was collected illegally. The high court has given a detailed judgement. But it is wrong on every point of law. The data has not been collected under law as laid down by this court. Even the executive order is not in conformity with the law laid down in the K S Puttaswamy judgment (2018 verdict on right to privacy)," Singh said.

To this, the bench said since the name and other identities of any individual have not been published, the argument that there was a breach of privacy may not be correct. 

"The more important issue for consideration of the court is breakdown of data and its availability to the public," the bench said, adding there are various aspects of the data but the state government has not released that.

Justice Khanna said they have gone through the high court verdict and have formed a prima facie view which is subject to change.

Singh said that during the last hearing, the state government assured the bench that they will not publish the data. She said they will further publish the data by the next date of hearing in January if no restrained by the court, and the petitioners will be in the same position.

Justice Khanna said the state had not assured anything in the last hearing.

Senior advocate Shyam Divan, appearing for the state government, replied to the question of the bench on why they published the data and said there was no stay on publication of data, which was required for formulating welfare schemes.

He said there is a judgment of this court which allows collection of data.

On October 2,  the Nitish Kumar government in Bihar released findings of its caste survey, months ahead of the 2024 Parliamentary elections. The data revealed that OBCs and EBCs constitute a whopping 63 per cent of the state's total population.

According to the data released, the state's total population stood at a little over 13.07 crore, out of which the Extremely Backward Classes (36 per cent) were the largest social segment followed by the Other Backward Classes at 27.13 per cent.

The survey also stated that Yadavs, the OBC group to which Deputy Chief Minister Tejashwi Yadav belongs, were the largest caste in terms of the population, accounting for 14.27 per cent of the total. 

Dalits, also known as the Scheduled Castes, accounted for 19.65 per cent of the total population in the state, which is also home to nearly 22 lakh (1.68 per cent) people belonging to the Scheduled Tribes.

On August 7, the top court had refused to stay the Patna high court's order giving the go-ahead for the caste survey, and deferred the hearing on petitions challenging it to August 14.

Besides a plea by NGO 'Ek Soch Ek Paryas', several other petitions have been filed including one by a Nalanda-resident, Akhilesh Kumar, who has contended that the notification issued by the state government for the exercise is against the constitutional mandate.

Kumar's petition says that according to the constitutional mandate only the Union government is empowered to conduct a census.

The high court had said in its 101-page verdict, "We find the action of the state to be perfectly valid, initiated with due competence with the legitimate aim of providing development with justice."

A day after the high court held the caste survey as "valid", the state government had swung into action and suspended all ongoing training programmes for teachers so they can be engaged for early completion of the exercise.

The Nitish Kumar government had said on August 25 that the survey has been completed and data will be made public soon.

Petitioners had opposed making the data public, contending it will infringe people's right to privacy.