Patna High Court
Youth For Equality vs The State Of Bihar on 1 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5542 of 2023
======================================================
1. Youth For Equality, P-21, South Extension Part -II, New Delhi 110049,
through its Secretary Shri Subham Kumar aged about 33 years, Male, Son of
Amrendra Kumar Singh, Rajeev Nagar, P.O, Keshri Nagar, Patna.
2. Dr. Bhurelal, Son of Shri. Rajaram, Resident of Sector 128, Noida, Augusta
Gold Apartments-005, PIN-201304.
3. Prof. Makkhan Lal, Son of Shri. Durga Prasad Srivastava, A-9, NSG
Society, P 6 Builders Area, Gautal Budh Nagar, Uttar Pradesh, PIN-201308
4. Prof. Kapil Kumar Son of Shri. Bishan Narain Saxena, Resident of 819,
Level Pinto Block, Asian Games Village, Delhi - 110049.
5. Prof. Sangit Kumar Ragi Son of Shri Dinesh Sharma Resident of 310,
Patrakar Parisar, Section 5, Vasundhara, Ghaziabad - 2010102.
6. Ms. Ahna Kumari Daughter of Mr. Amol Kumar Singh, Resident of Village-
Vaishali, Abhay Singh House Near Vaishali Block Chowk, P.S.- Vaishali,
District- Vaishali, Bihar - PIN - 844128
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, New Secretariat, Patna,
Bihar.
2. The Principal Secretary, Department of General Administration, Govt. of
Bihar, Patna
3. The Deputy Secretary, General Administration Department, Government of
Bihar, Patna.
4. The Additional Chief Secretary, Government of Bihar, Patna.
5. The Principal Secretary to the Governors Secretariat, Government of Bihar,
Patna.
6. The Principal Secretary to the Chief Minister, Government of Bihar, Patna.
7. The Additional Director, Evaluation Directorate, Economic and Statistics
Directorate, Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 4624 of 2023
======================================================
Sh. Akhilesh Kumar Son of Sh. Mithilesh Kumar R/o Village- Begampur
Mari, District- Nalanda, Bihar 803111.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
2. The Additional Chief Secretary, General Administration Department,
Government of Bihar, Patna.
3. The Principal Secretary to the Chief Minister, Govt. of Bihar, Patna.
4. The Principal Secretary, Department of General Administration,
Government of Bihar, Patna.
5. The Deputy Secretary of the government General Administration
Department, Government of Bihar, Patna.
6. The Union Govt. of India, through Secretary Ministry of Home Affairs, New
Delhi.
7. Registrar General and Census Commissioner, Union of India, New Delhi.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 4650 of 2023
======================================================
EK SOCH EK PRAYAS through its Settlor Trustee,Upendra Kumar, S/o Shri
B.Ram, Office-B240, Krishan Kunj Gali No. 2, North Ghonda, Delhi
110053.
... ... Petitioner/s
Versus
1. Union of India through its Home Secretary, Ministry of Home Affairs, Govt.
of India, North Block, New Delhi 110001 through its General Secretary,
[email protected].
2. Govt. of Bihar through its Deputy Secretary, General Administration
Department, Main Secretariat, Patna 800015. [email protected]
3. The Registrar General and Census Commissioner of India NDCC-II
Building, Jan Singh Road, New Delhi-110001. [email protected]
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 5749 of 2023
======================================================
1. Shri. Suresh Kumar Bharadwaj, IPS, Retired Director General of Police Son
of Shri Chander Parkash Bharadwaj, resident of Arpana Bank Colony, Phase
2 Ram Jaipal Path, South of Bailey Road, Danapur, Patna, Bihar - 801503.
2. Shri Amod Kumar Kanth, IPS Retired Director General of Police, S/o Late
Sri RSP Kanth, resident of A1/52 FF Safdarjung Enclave New Delhi
110029.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, New Secretariat, Patna,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Bihar.
2. The Principal Secretary, Department of General Administration, Govt. of
Bihar, Patna.
3. The Deputy Secretary, General Administration Department, Government of
Bihar, Patna.
4. The Additional Chief Secretary, Government of Bihar, Patna.
5. The Principal Secretary to the Governor's Secretariat, Government of Bihar,
Patna.
6. The Principal Secretary to the Chief Minister, Government of Bihar, Patna.
7. The Additional Director, Evaluation Directorate, Economic and Statistics
Directorate, Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 6506 of 2023
======================================================
Ms. Muskan Kumari D/O Shri Brijnandan Singh, Gate No-92, Bajitpur, Opp-
Puja Flour Mill, Patna, Dinapur - Cum-Khagaul, Patna, Bihar - 800011
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, New Secretariat, Patna,
Bihar.
2. The Principal Secretary Department of General Administration, Govt. of
Bihar, Patna.
3. The Deputy Secretary, General Administration Department, Government of
Bihar, Patna.
4. The Additional Chief Secretary General Administration Department,
Government of Bihar, Patna.
5. The Principal Secretary to the Governors Secretariat Government of Bihar,
Patna.
6. The Principal Secretary to the Chief Minister Government of Bihar, Patna
7. The Additional Director, Evaluation Directorate, Economic and Statistics
Directorate, Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7297 of 2023
======================================================
Ankit Roushan S/o Mahavir Chandra Das 15, Near Durga Asthan, Ghosh Tola
Dumarama, Amarpur, Banka, Bihar- 813101.
... ... Petitioner/s
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Versus
1. The State of Bihar through the Chief Secretary, New Secretariat, Patna,
Bihar.
2. The Principal Secretary, Department of General Administration, Govt. of
Bihar, Patna.
3. The Deputy Secretary, General Administration Department, Government of
Bihar, Patna.
4. The Additional Chief Secretary, General Administration Department,
Government of Bihar, Patna.
5. The Principal Secretary to the Governor's Secretariat, Government of Bihar,
Patna.
6. The Principal Secretary to the Chief Minister, Government of Bihar, Patna.
7. The Additional Director, Evaluation Directorate, Economic and Statistics
Directorate, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 5542 of 2023)
For the Petitioner/s : Ms. Aprajita Singh, Sr. Advocate
Mr. Abhinav Shrivastava, Advocate
Mr.Dhananjay Kumar Tiwary, Advocate
Mr. Rahul Pratap, Advocate
Mr. Raushan, Advocate
Mr. Krishna Murari, Advocate
Mr. Arpit Anand, Advocate
Mr. Pushkar Bharadwaj Advocate
For the Respondent-State : Mr. P.K. Shahi, Advocate General
Mr. Anjani Kumar, AAG-4
Mr. Sanjiv Kumar, AC to AG
Mr. Alok Kr. Rahi, AC to AAG 4
Mr. Manish Kumar, Advocate
Mr. Shailendra Kumar Singh, Advocate
Mr. Utkarsh Bhushan, Advocate
(I.A. No. 3 of 2023 in CWJC No. 5542 of 2023)
For the Intervenor : Mr. Basant Kumar Choudhary, Sr. Advocate
(In person)
Mr.Shashi Bhushan Kumar, Advocates
(In Civil Writ Jurisdiction Case No. 4624 of 2023)
For the Petitioner/s : Mr. Dinu Kumar, Advocate
Ms.Ritika Rani, Advocate
Mr.Vardaan Mangalam, Advocate
Mr.Rituraj, Advocate
For the Respondent/s : Mr. P.K. Shahi, Advocate General
Ms. Kalpana, Advocate
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
(In Civil Writ Jurisdiction Case No. 4650 of 2023)
For the Petitioner/s : Mr. Yadunandan Bansal, Advocate
Mr. Avinash Kumar Pandey, Advocate
Mr. Upender Kumar, Advocate
For the Respondent/s : Dr. K.N.Singh, Additional Solicitor General
(In Civil Writ Jurisdiction Case No. 5749 of 2023)
For the Petitioner/s : Mr. Abhinav Shrivastava, Advocate
Mr. Karandeep Kumar, Advocate
For the Respondent/s : Mr. P.K. Shahi, Advocate General
(In Civil Writ Jurisdiction Case No. 6506 of 2023)
For the Petitioner/s : Mr. M.P.Dixit, Advocate
Mr. S.K.Dixit, Advocate
Mr. Swastika, Advocate
Mr. Sanjay Kumar Chaubey, Advocate
For the Respondent/s : Mr. P.K. Shahi, Advocate General
Mr. Naresh Dikshit, Advocate
Ms. Kalpana, Advocate
(In Civil Writ Jurisdiction Case No. 7297 of 2023)
For the Petitioner/s : Mr. M.P.Dixit, Advocate
Mr. S.K.Dixit, Advocate
Mr. Swastika, Advocate
Mr. Sanjay Kumar Chaubey, Advocate
For the Respondent/s : Mr. P.K. Shahi, Advocate General
Mr. Naresh Dikshit, Advocate
Ms. Kalpana, Advocate
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 01-08-2023
1. The action of the State in carrying out a caste
survey, impugned in the present batch of writ petitions and the
vigorous challenge raised to it on multiple grounds, inter alia of
infringement of fundamental rights, by reason of infringement
of privacy, reveal that despite attempts to efface it from the
social fabric, caste remains a reality and refuses to be swept
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
aside, wished away or brushed aside nor does it wither away and
disperse into thin air.
THE ARGUMENTS AGAINST THE SURVEY :-
2. Learned Senior Counsel Ms. Aparajita Singh,
instructed to appear in CWJC No. 5542 of 2023, led the
arguments on behalf of the petitioners. Referring to Annexure-
P/1 notification dated 06.06.2022, which initiated the caste
survey and the instructions issued from the Principal Secretary
to the District Collectors, followed up with directions from the
District Collectors to the Block Development Officers
(Annexure- P/2 and P/3 respectively) and the guidelines issued
through Annexue-P/4 notification, the learned Senior Counsel
raised objections specifically regarding the queries raised under
the three heads of religion, caste and monthly income. Reliance
was placed on K.S. Puttaswamy II (Aadhaar) v. Union of
India; (2019) 1 SCC 1 to point out that these three aspects are
very sensitive personal information which defines the identity,
autonomy, dignity and privacy of every individual. The Hon'ble
Supreme Court in Justice K.S.Puttaswamy I v. Union of India;
(2017) 10 SCC 1 specifically dealt with these aspects and held it
to be sacrosanct; the infringement of which would also fall foul
of the constitutional guarantees to preserve fundamental rights
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
and never to be impinged; other than by way of reasonable
restrictions, conforming to strict standards of scrutiny. The State
by the above survey conducted amongst the residents of Bihar is
imposing a caste status on every citizen, whether he desires it or
chooses to distance himself/herself from it. The guidelines at
Annexure-P/5 are specifically read out which depict the manner
in which the details are to be obtained from the individuals
through the Government Officers, called the Enumerators. In
collecting the details of religion, there is a specific option, to be
counted as not falling under the enumerated six religions; who
will be classified under the heading 'other religion' and even
those who express no religious beliefs to be classified under the
head 'no religion'. Such an option is not available insofar as the
caste status and it is specified that under no instance the
mother's caste will be recorded. This brings in a situation where,
even a person who does not nurture any religious belief would
be classified as a person belonging to one or other caste; which
can only be that of the father. As far as monthly income is
concerned, there is an estimation possible of the total income
received by the members of the family in the whole year divided
by 12 months; which, it is argued, is quite artificial and not the
real income derived by an individual. It is argued that the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
survey, as it is intended, would be completely out of focus and
there would be no possibility of verification of any of the details
supplied by the individual citizen, especially in matters of
religion, caste and monthly income.
3. It is specifically argued that the power to carry out
a census is exclusively on the Union Parliament as provided
under Article 246 of the Constitution of India read with Entry 69
of List-1, Seventh Schedule. In the year 2011, though not under
the Census Act, 1948; as brought out by the Union Parliament
under Entry 69 of the 1st List, a socio-economic caste census
(SECC) was carried out by the Central Government by invoking
its power under Article 73 of the Constitution. The methodology
and the fall out of the same has been emphasized by the learned
Senior Counsel with reference to Annexure-P/9, a reply affidavit
filed on behalf of the Central Government in a writ petition
before the Hon'ble Supreme Court. The counter affidavit has
emphasized that the Central Government has given up a caste
wise enumeration, as a matter of policy from 1951 onwards and
decided to carry out only an enumeration of the Scheduled
Castes (S.C) and Scheduled Tribes (S.T), notified under the
Constitution. Except that of S.C and S.T, it is asserted that no
census was carried out in 1951 or in the succeeding six census,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
of any information about the caste of the citizen. The counter
affidavit further indicates that enumeration of the Other
Backward Class Communities has posed extremely complex
impediments. When such data was collected in the pre-
independence period, the data suffered from lack of
completeness and accuracy and a census of the Backward
Classes has been found to be administratively difficult and
cumbersome. When such a conscious policy decision was taken
by the Central Government, it is very difficult to perceive and
accept the decision of the State Government to proceed with
such an enumeration; when the resources of the State is not as
large as that of the Centre.
4. Specific reference is made to the general guidelines
issued which enable the enumerators and supervisors to get
information regarding the caste from the head of the family,
which again would not be authentic and would also impinge
upon the personal choices of an individual regarding disclosure
of his caste status. It is emphasized that there is no law brought
out by the State to collect such sensitive data and that, in any
event, there is no competence in the State to carry out a caste
census in the guise of a survey. It is further emphasized that the
objective of enabling affirmative action, to those marginalized
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
communities, is not specifically stated in the notifications
issued. Mohinder Singh Gill v. The Chief Election
Commissioner, New Delhi; 1978 (3) SCR 272 is relied on to
rubbish the contention of the object now declared of aiding
affirmative action, which object is only an afterthought at the
time of preparation of the counter affidavit. There is total
absence of statement of such objective in the notification itself
and what had not been thought of or stated at the time the
decision was taken to initiate a caste-based survey cannot now
be supplanted as an objective by way of a counter-affidavit.
5. It is vehemently argued that any individual has the
right to choose or renounce his caste and there is no justification
or legitimate aim, as disclosed from the notifications, to profile
an individual on the basis of his caste, religion or income.
Shafin Jahan v. Asokan K.M.; (2018) 16 SCC 368 is relied on
to argue that the Constitution recognizes the liberty and
autonomy which inheres in each individual and this includes
decision on aspects defining one's person. There can be no
enumeration of the required details, as is permitted under the
guidelines, either from the head of the family or from
neighbours and persons of a locality, which would not be
accurate and would also violate the right to define oneself,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
which inheres in the right to privacy.
6. The power to carry out a Census, especially of
caste, religion and monthly income can only be traced to Entries
19, 69, 81 and 94 of the Union List under Schedule-VII of the
Constitution. Entries 20, 23, 24, 30 and 45 under the Concurrent
List, as relied on by the State, can be resorted to only insofar as
it does not impinge into the field exclusively reserved for the
Union Parliament. The distinction of Census and Survey is
specifically urged to further impress upon us that the exercise
attempted, is in measure and effect a census; thus, impinging
upon the exclusive power of the Union Parliament. It is also
urged that the restrictions and protection available to a citizen
insofar as ensuring the integrity of the data collected and
providing for its security, are not available in the present
exercise. The State, which is the protector of fundamental rights
under the Constitution, has turned its might against the citizen to
collect data forcibly and surreptitiously, thus, infringing upon
the citizens' valuable right to privacy, identity, autonomy and
dignity. It is summed up that, to uphold the exercise as legal,
there should be competence in the State and if competent, then a
valid law should be in existence, under which the exercise can
be carried out, motivated by a legitimate goal or aim; which has
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
to be judged under the highest standards of scrutiny. If such a
legitimate aim or goal is available, even then there should be
narrow tailoring to ensure that nothing beyond what is necessary
is done by the State. Again, if there is an alternative method
available; which in this case the State has by way of appointing
Commissions, to aid the affirmative action, such alternatives
have to be resorted to rather than involve in an exercise leading
to infringement of fundamental rights. Further, the test of
proportionality necessarily has to be satisfied and in the present
case, there can be no balance found to sustain the arbitrary
action, clearly leading to infringement of fundamental rights,
without any declared purpose or goal. The lack of security also
assumes importance insofar as the State having not placed
anything on record to indicate any audit having been conducted
for ensuring the protection of the data collected. Reference is
also made to a notification issued by the State Government,
which the State Government itself relied on before the Hon'ble
Supreme Court, wherein prescribed action was threatened in
case of deliberate wrong information being supplied by any
person. This assumes relevance especially in the context of the
State having not directed the enumerator to collect the
information required at the survey, from the individuals
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
themselves and goes against the assertion of the disclosure in
the survey being voluntary.
7. Sri Abhinav Srivastava, learned counsel appearing
for some of the petitioners adopted the arguments already
addressed and assailed the impugned survey primarily on lack
of legislative competence, disregard of the right to privacy
which is also enshrined in Article 21 of the Constitution and
alternatively the absence of a legislation sanctioning such
survey. It is specifically argued that Article 162 only extends to
the legislative power conferred on the State and insofar as caste
census is concerned, there is absolute lack of it. The object of
the exercise asserted by the State; to further the development of
the downtrodden communities is a mirage brought in at the
second phase of the exercise. For identification of other
backward communities (OBC) or the extremely weaker
backward communities (EWBC), there is sufficient power
available with the States under Articles 15 (4) & 16 (4) of the
Constitution of India. In Bihar, there is also a legislation
identifying the OBCs and EWBCs, which is the Bihar
Reservation of Vacancies in Posts And Services (SC/ST, OBC)
Act, 1991. Schedules 1 and 2 of that Act enumerates the various
castes which are entitled to such benefits. There is also power
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
on the State to identify those castes which are marginalized and
are downtrodden by appointment of Commissions which is
sanctioned by Indra Sawhney v. Union of India; (1992) Supp.
(3) SCC 217. In achieving a constitutional goal, the learned
counsel asserts, the State has to adopt constitutional means and
cannot otherwise proceed. Annexure-1, the initial notification
and Annexures 2 and 3, insists upon collection of the data
specified, from each and every individual belonging to all
religions and communities and there is nothing stated as to an
option regarding disclosure of caste, to be voluntary. The said
option now asserted by the State is an afterthought which has
been stated in the counter affidavit filed by the State and not in
any of the notifications issued or the guidelines brought out.
Reliance is placed on the Constitution Bench decision of the
Hon'ble Supreme Court in K.S. Puttaswamy I & Aadhaar to
urge the significance and importance of the right to privacy as
highlighted by the Hon'ble Supreme Court reversing two earlier
decisions of the Hon'ble Apex Court itself. While K.S
Puttaswamy I upheld the right to privacy as a right protected by
the Constitution, being an intrinsic part of the right to personal
liberty and right to life under Article 21, the Aadhaar judgment
defined the contours within which such right could be infringed.
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
The Aadhaar judgment stressed upon the need for existence of a
law which had a legitimate aim, the least infringement being
occasioned & the test of proportionality being satisfied. The
exercise carried out by the State fails on all three counts. If for
arguments sake, it can be sustained under Article 162, the action
is bad for the complete lack of guidelines on how the exercise is
to be carried out. It is reiterated that be it the exercise of
legislative power or an executive fiat; necessarily it should be
preceded by a legitimate object which is not discernible from
any of the notifications issued. The exercise of a caste survey is
being initiated without any definite objective and carried out
without a proper direction and the result of the culmination of
such collection of data, even now, is elusive. It is specifically
pointed out that even in the interim order passed, this Court had
expressed concern about protection of data; the details of which
are not disclosed.
8. Pointing out the specific details to be collected
under the 17 identified heads as per Annexure-4 notification; it
is pertinently pointed out that the survey itself has been named
with one of such details; as 'the caste survey'. The intention is
very clear from the nomenclature given to the survey and it is
the objective of the State to find out the number of persons
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
belonging to a caste, presumably for forging alliances and
carving out areas for narrow political ends; least of all is the
development or upliftment of the down trodden. It is further
pointed out from the guidelines regarding collection of data that
many of the guidelines are autocratic and arbitrary. It is
specifically pointed out that as per the guidelines in no event the
mother's caste is to be recorded. It is also directed that an
individual's caste or other personal details can be ascertained
from the head of the family. A woman who refuses to disclose
the father of her child would be forced in the presence of a male
member to disclose it.
9. The very attempt of the State to record the caste of
each and every individual smacks of arbitrariness and displays
scant respect for the dignity of an individual. It is specifically
pointed out that while the Constitutional goal is to efface the
caste identity, it also promotes affirmative action for upliftment
of the downtrodden and marginalized. A declaration of caste or a
demand to disclose it arises only when a benefit flows from it to
an individual. All the members of an identified downtrodden
community would not be availing the benefits of the affirmative
action of the State, sanctioned by the Constitution, that flow
only because of the caste identity. Even a member of the S.C or
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
S.T, if not intending to seek the benefits of reservation, cannot
be forced to declare his caste status. It is in this context that the
test of proportionality has to be applied on the attempt of the
State to make every individual disclose his caste in the survey
conducted by government officials. The learned counsel would
emphasize that the mere presence of a government official is an
indirect coercion on the individual who is questioned, to
disclose the details under the seventeen heads, including the
identification of that individual in a particular caste. The
enumerators have been directed to ascertain the caste of an
individual from the head of the family or from the neighbours or
the people of the locality which, in effect, is a measure
employed to ferret out the caste identity even of an individual
who refuses to disclose it.
10. The learned counsel relying on paragraph 148 to
157 of the decision in Aadhaar emphasized the need to ensure
the proposed survey to be one for a designated legitimate
purpose, the measures adopted having a rational connection to
the fulfillment of the purpose, there being no alternative
measures available to achieve the very same purpose with a
lesser degree of invasion/intrusion into individual rights and
there existing a balance between the need to achieve the purpose
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
and preventing any infringement of a constitutional right. It is
also pointed out from Aadhaar that, what stood permitted by the
Hon'ble Supreme Court, was after specifically taking into
account the precautionary measures to ensure the security of the
data; which have been detailed in the leading judgment.
11. Shri Dinu Kumar, learned counsel appearing in
CWJC No. 8796 of 2023, while adopting the arguments already
addressed before this Court, commenced with a reference to the
counter affidavit of the State, speaking of a similar exercise
having been carried out by a number of States; which, however,
is stated to be only through a proper legislative exercise of
having a Commission for making recommendations for the
upliftment of the Backward Class communities. The learned
counsel would specifically refer to the series of documents
produced along with the reply affidavit to specifically point out
the provisions in the States of Karnataka, Kerala, Maharashtra
and Orissa. The functions of the Commissions are specifically
referred to from the legislations produced. It is also pointed out
that on similar lines there exists a legislation in the State of
Bihar and that makes the present exercise a futile one and an
unnecessary waste of public money. It is specifically pointed out
that an individual centric identification of the backward class
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
communities has been only carried out by Karnataka and Orissa.
A Division Bench judgment of the Kerala High Court in WP(C)
No. 35220 of 2017, Manava Aikyavedhi v. Union of India, was
relied on, in which directions were issued to the Union and the
State Governments to finalize a report of socio-economic study
taking into account all parameters required for identification of
socially and educationally backward classes within the State of
Kerala and submit a report to the statutorily constituted
Commission; thus, coming within the contours of the decision
of the Hon'ble Supreme Court in Indra Sawhney, which did not
sanction an individual enumeration of caste status as
distinguished from an identification of social classes or
groupings for the purpose of ameliorating social and economic
backwardness. But for the assertion in the counter affidavit of
the State, that the disclosure of the 17 aspects identified for
enumeration from individuals is voluntary, there is nothing
discernible from the various notifications and the
communications addressed in furtherance of the exercise of a
caste survey, which substantiate such an assertion. Ext. P-23
produced is specifically referred to as the socio-economic caste
census carried out by the Central Government in the year 2011,
the details of which have not yet been disclosed and as argued
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
by the other learned counsel, the Central Government had
encountered many problems in proceeding with such an
exercise.
12. It is also urged that there is no reason, purpose or
necessity for the exercise carried out in the name of a caste
survey and it is on the mere ipse dixit of the State Government.
There had to be a legitimate purpose for initiating such an
exercise and there should also be a legitimate method followed,
informed with reason. M.P. Oil Extraction and Another v. State
of M.P.; (1997) 7 SCC 592, East Coast Railway v. Mahadev
Appa Rao; (2010) 7 SCC 678 and Census Commissioner v.
R.Krishnamurthy; (2015) 2 SCC 796, were relied on to argue
that the executive authority of the State must be held to be
within its competence to frame a policy for the administration of
the State; which policy should also be absolutely free of caprice
and informed by reason, failing which it could be held to be
arbitrary and on the mere ipse dixit of the executive
functionaries. If there was a purpose for the survey adopted and
disclosure was to be voluntary then it should have come out
from the scheme of things formulated by the executive authority
and it cannot later be supplanted by a counter affidavit before
this Court. The Census Act is specifically pointed out and Ext.
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
P-12, produced along with IA No. 1 of 2023, is referred to
where the reference to a 'JANGANANA' meaning census; for
which there is no competence on the Executive Government of
the State. It is also urged that there was unnecessary expenditure
and there is no clarity as to how the funds were sourced from.
13. Shri. Yadunandan Bansal, learned counsel
appearing in CWJC No. 4650 of 2023, went one step ahead to
allege that the survey intends only to rebuild a society on the
principle of divide and rule, with an eye on vote bank politics. It
is pointed out that the data collected cannot be verified, is not
conclusive and there is absolutely no authenticity attached to the
same. It is specifically pointed out that the measure of
enumeration from the head of the family and the people of the
locality gives credibility to hearsay information. The preamble
of the Constitution is read out to contend that it condemns the
caste system and the State intends to perpetuate what the
constitution framers intended to efface.
THE STATE IN SUPPORT OF THE SURVEY :-
14. Learned Advocate General commenced his
arguments with the statement that everyone should realize that
we have not yet attained the ideal goal of equality for all and an
egalitarian society is still a mirage. It is to achieve that, the State
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
strives, for which the exercise of a caste survey was initiated;
challenged on personal predilections and vested interests. It is
asserted that the purpose is very clear and it is the upliftment of
the downtrodden and the marginalized for which the State has
ample powers to conduct a survey of the nature now proposed;
that too with the sanction of the entire legislature. The
arguments raised by the learned counsel for the petitioners, of
the State having no competence to proceed on the exercise of a
survey and the violation of their right to privacy have no legal
framework and are mere assumptions, presumptions and
hypothesis. It is submitted that the law has to be applied on facts
and there is no material produced by the petitioners to
demonstrate a compulsion or coercion to disclose details, in the
survey carried out. It is pointed out that 80% of the survey is
over and there is not even one instance of an objection from the
subjects of survey, regarding the disclosure of the details,
including that of caste. The notifications and the
communications are misread and the argument of a compulsion
having been exercised by the State is misleading, especially
when there is no consequence for non-disclosure. It is
emphatically urged that the writ petition is not based on any
empirical data; especially in a public interest litigation where
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
there is an onerous duty on the petitioners to disclose materials
to substantiate the arbitrariness or illegality alleged and the
consequential public interest involved, so as to invoke the extra-
ordinary remedy under Article 226.
15. Dwelling upon the argument of the petitioners that
there is no legislative power in the State, which is denuded by
Entry 69 and Entry 94 of List I of the Seventh Schedule; it is
contended that the source of power to legislate does not flow
from the Entries in the three lists, which are mere fields of
legislation, and it is sourced from Article 246 of the Constitution
of India. Even according to the petitioners, the census carried
out by the Central Government in 2011 was neither under Entry
69 nor under the Census Act and it was by an executive fiat
under Article 73 of the Constitution of India. If that be so, it is
pointed out that Entry 45 in List III, akin to Entry 94 of List-I,
confers power on the State to collect statistics for the purpose of
verification of details, to achieve the goal under Entry 20 of List
III. The exercise cannot at all be construed as a Census under
Entry 69 of List I and the State has the power to proceed under
the aforesaid Entries in List III.
16. It is argued that while broad submissions are made
about infringement of privacy, it is not stated as to disclosure of
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
which information leads to such infringement of a right
protected under Part-III of the Constitution. It is also argued that
the information sought for by the State is already in the public
domain by way of declarations made by the very same citizens
and when there is no provision for mandatory disclosure or a
consequence on failure so to do; it can only be implied as a
voluntary disclosure. It is argued that both the decisions cited,
K.S. Puttaswamy I and Aadhaar are cited out of context and the
challenge upheld in the latter, was only with respect to very
personal details sought for, of biometrics and iris identification.
17. It is submitted that caste is by birth and is not by
way of choice of an individual. There is neither infringement of
privacy nor lack of competence on the State to carry out an
enumeration of the details as attempted under the caste survey,
for which heavy reliance is placed on Indra Sawhney. It is
pointed out that the State had been waiting for the disclosure of
the information collected by the Central Government under the
2011 Census which, unfortunately, has not materialized. It was
in this circumstance that the State Legislature unanimously
decided on the caste survey to further the goal as declared by the
Hon'ble Supreme Court in Indra Sawhney. The dictionary
meaning of 'census' and 'survey' are not relevant in the context
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
of the specific power conferred on the State under Article 246
and the Entries in the concurrent list. The State sources its
power also from Articles 14, 15 and 16 and the learned
Advocate General points out that now there is a further category
added by way of extremely weaker sections, identification of
which section can only happen by collection of data. The
exercise is intended at fulfilling the constitutional ideals and is
not merely intended for an affirmative action. The State by the
aforesaid exercise does not intend to, nor has the power to
include or exclude castes from the Schedules under the
Constitution. Other than affirmative action, there are many
welfare schemes which are formulated by the State for the
upliftment of those backward class communities identified in
the survey. The aim and objective is the collection of data for
the purpose of future use by the Welfare State; by inviting
recommendations from the various Commissions constituted or
an informed analysis made by the State Government itself.
18. The learned Advocate General pointed out that
affirmative action is a dynamic concept and since upliftment of
the backward communities is what the Constitution ordains,
necessarily, there should be empirical data before the State, to
include those communities which require a helping hand as also
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
affirmative action. Even certain communities which have been
enjoying reservation for long could be considered for exclusion,
if the general social, educational & fiscal conditions with
respect to such communities have improved over the years. It is
pointed out that in Bihar, prior to the judgment in Indra
Sawhney, Mungerilal Commission was appointed. Later to the
decision in Indra Sawhney, the Backward Commission Act
came into force and the Bihar Reservation Act, 1991 was
promulgated. For better dissemination of welfare measures, the
State has to collect data and it is not the Commission's duty to
collect such data. The Backward Commissions Act and the
provisions thereof, especially, the functions of the Commission
are pointed out to urge that a Commission appointed could only
make recommendations based on the data produced before it;
for which purpose the State machinery has to be employed. This
is the exercise now attempted by the State which is only to
attain the constitutional goal of removing inequality and
bringing in equality and thus pave the path to an egalitarian
society.
19. It is pointed out that the details sought for by the
State in its survey especially the three aspects of religion, caste
and income on which specific objection has been raised by the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
petitioners cannot be construed to be an integral personal aspect
of an independent nature, the disclosure of which will be an
infringement of his or her privacy. It is reiterated that there is no
compulsion on the individual to disclose any details and it can
be demonstrated that it is only a voluntary disclosure that is
attempted by the State. The learned Advocate General takes us
through the material supplied to the enumerators to impress
upon us the voluntary nature of disclosures by individuals. It is
pointed out that there is a four-stage hierarchy created for the
purpose of the survey with the enumerator at the grass root level
and the Supervisor, the Charge Officer and the Nodal Officer in
the ascending positions of hierarchy. There is absolutely no
substance in the contention that the aspects disclosed by the
head of the family would not be at the option of the various
individuals comprising the family. It is pointed out that the head
of the family, as the survey defines, is not the eldest one or the
one who brings income to the family and is the person who is
given the position of respect in the family and handles the day-
to-day affairs of the family. It is also pointed out that there is no
gender specification and either a male member or female
member of the family can give the details to the enumerator.
The hierarchical officers ensure that any clarification can be
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
obtained by the enumerator immediately and rectified. The
details supplied by the head of the family or those not within the
knowledge of an individual; if collected from other sources, are
put to the individual before it is recorded. It is also pointed out
that despite the petitioners having pointed out a provision which
speaks of prescribed action in case of failure to disclose the
details; there is no such prescription made. The ground of
coercion and mandatory disclosure, is only on a truncated
reading of the various documents. Even the income disclosure is
not the exact income received by an individual and the details
collected is only of the range in which an individual has income
from various sources. In the event of there being no definite
income, it is also stipulated that an estimated income based on
the professional activity carried on, can be recorded. It is
pointed out that what is intended is only the collection of
approximate estimations, which though not absolutely
verifiable, however, would provide the State with a platform and
enable it to decide upon the socio-economic status of families
and thereby the communities/castes to which they belong.
20. As to the competence, the learned Advocate
General specifically refers to the distinction as discernible from
the words employed in Clauses (3) and (4) of Article 16 and the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
authoritative pronouncement in Indra Sawhney. It is pointed
out that Indra Sawhney had asserted the power of the State to
make laws which, looking at the definition of 'State' and 'laws'
as available in the Constitution was held to be including even
orders, rules, regulations and notifications. The 72nd and 73rd
amendment giving a Constitutional status to the local self-
government institutions and providing for reservation to such
local bodies were specifically pointed out. To satisfy the
Constitutional goal of providing equal opportunities to the
backward and unrepresented communities to be represented in
the local self government, the contemporaneous empirical data
about such communities assume relevance. K. Krishna Murthy
(Dr.) v. Union of India; (2010) 7 SCC 202 is relied on to
contend that the collection of data is not the duty of the
Commission and it is for the State to collect such data and
provide it to the Commission for the purpose of making
recommendations. Vikas Kishanrao Gawali v. State of
Maharashtra; (2021) 6 SCC 73 was also relied upon to urge
that collecting adequate materials and documents to identify
Backward Classes for the purpose of reservation by conducting
a contemporaneous rigorous empirical inquiry into the nature
and implications of backwardness in the local areas concerned is
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
the foremost requirement. Reliance was also placed on M.
Nagaraj v. Union of India; (2006) 8 SCC 212.
21. The Collection of Statistics Act, 2008 was
specifically referred to and the provisions therein to contend that
the caste survey initiated by the State of Bihar is perfectly
within the scope and ambit of that Act. The prohibition in
Section 3 (a) is only with respect to any matter falling under any
of the entries specified in List-I in the Seventh Schedule to the
Constitution. Section 3(c) on the other hand, restricts the Central
Government from issuing any directions for collection of such
statistics which are being collected by the State Government or
Union Territories on the basis of prior directions issued by such
Governments. Section 32 of the Act of 2008 is also emphatically
pointed out to assert the power of the State to conduct a census
or survey as defined under the definition clause of Statistical
Survey [Section 2(g)], despite it being inconsistent with any
other law for the time being in force.
22. The supplementary affidavit which was filed on
28.05.2023, with the consent of the petitioners, was also
referred to. The averments there were copiously read over to
impress upon us that there was absolutely no coercion and that
the disclosure, if at all, made by the citizens were fully
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
voluntary. From the counter affidavit, the tedious task of
preparation of caste list prior to the decision made by the
Cabinet, the purpose for which it was initiated and the data
security ensured were specifically referred to. It is pointed out
that a scientific module has been put in place for enumeration of
the seventeen heads under the survey and it is ensured that the
data collected is as accurate and precise as possible in the given
circumstance of the massive exercise carried out through the
officers of the Government. The learned Advocate General, with
an amount of consternation, pointed out the delay in
approaching Court; after more than 80% of the work was
completed. In fact, earlier itself one of the petitioners had
approached the Hon'ble Supreme Court and the said petition
was not entertained specifically directing the High Court to be
approached. It was after considerable time that the petitioners
had approached the High Court and that too after the exercise
had proceeded to a considerable extent. The two stages as
contemplated was specifically pointed out which ensured the
collection of data extensively, precisely and without any
coercion exercised on the subjects of the survey.
23. On the insistence for the caste of father being
recorded, reference is made to prevalent practices in the State
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
which stood altered with Rameshbhai Dabhai Naika v. State of
Gujarat; (2012) 3 SCC 400. On the aspect of the sharing of data
argued by the learned counsel for the petitioners, from the
notification, it is pertinently pointed out that what is indicated is
only apprising the various leaders of the political parties in the
assembly about the stages of the caste survey and not
necessarily disclosing the details. The National Health Mission
Survey is pointed out wherein religion and caste are also
recorded of the individuals, subjects of survey. Insofar as the
Census specified in Entry 69 of List-1 of the Seventh Schedule
and the various entries upon which the State relies to carry on
the instant survey, the decisions in ITC Ltd. Vs. Agricultural
Produce Market Committee; (2002) 9 SCC 232 and
Vinodchandra Sakarlal Kapadia v. State of Gujarat; (2020) 18
SCC 144 are relied on. The words in an entry cannot be given a
narrow construction and has to be given the widest amplitude so
as to enable the State and the Union to have an enlarged scope
and coverage to carry out welfare schemes, affirmative action
and so on and so forth which are the primary obligations of a
Welfare State.
24. To sum up, it is pointed out that there are
inadequate materials to support the contentions raised by the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
petitioners, purportedly in public interest, but however,
projecting a very personal perspective, not taking into account
the ramifications in furthering the constitutional goal of bringing
the marginalized and the downtrodden to the mainstream. The
caste survey as planned and implemented by the Bihar State
looks at the larger public good and is an endeavor to further
public interest and cannot at all be termed as a political gimmick
furthering vested interests. It is prayed that the actions of the
State may not be invalidated merely on individual perceptions,
especially when the exercise is sanctioned by the Constitution;
precisely Articles-14, 15, 16, 243-D, 243-T and Article-246 read
with entries 20, 23, 24 and 45 of List-III. The exercise does not
make any inroads into the provisions of the Census Act nor does
it impinge upon legislative or executive power of the Union
Parliament. It is only natural that in an exercise of this
magnitude there could crop up minor defects which the State
has tried to rectify in the course of the implementation, as
pointed out during the hearing. The reliance on Mohinder
Singh Gill is specifically objected to, especially since the
sequitur insofar as the reasons required to be disclosed in the
order itself, is with respect to routine administrative matters and
not the legislative and executive actions of the State, the reasons
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
and objectives of which would be available in the
contemporaneous documents.
25. Learned Senior Counsel Shri Basant Kumar
Chaudhary appears for an intervenor and points out that there
are two perspectives to the issue: one, the constitutionality and
the other, the social aspects. The learned Senior Counsel would
specifically point out that eye-brows are raised only because of
there being a caste enumeration; which, the objectors fail to
realize, is a reality and reflected in every fabric of the society.
The learned Senior Counsel would also specifically point out
that there is no concern of privacy since the citizens have come
forward voluntarily to disclose the details under the seventeen
enumerated heads. When there is abject poverty, as is indicated
from the lowest per capita income in the State of Bihar, there is
a requirement for enumeration of the backward communities
and castes to further the reservation process and bring
development within the State and also to its citizens, especially
when the statistics now available upon which the 1991
Reservation Act came into force are outlandish and obsolete. It
is pointed out that of the 215 castes enumerated in the survey,
only ten are now represented in the local bodies and the
objections against the enumeration reveals the undercurrent of
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
paranoia displayed by the communities holding hegemony over
every aspect of political and social life within the State.
Reference is made to S.R. Bommai v. Union of India; AIR
1994 SC 1918 to assert that there is no interference caused to
the decennial census and to further the federal system under
which our country works there should be full play of the entries
in the three lists which also should suit the needs of the time.
The doctrine of seeming conflict does not allow the Courts to
interfere with valid actions, as has been held in Jorubha Juzer
Singh v. State of Gujarat; AIR 1980 SC 358 and K.C. Gajapati
Narayan Deo v. State of Orissa; AIR 1953 SC 375.
IN REPLY :-
26. In reply, it is argued that Indra Sawhney has
absolutely no application to the facts of the present case since
the decision deals with affirmative action of reservation which is
not a disclosed object of the present exercise. The Collection of
Statistics Act does not rescue the State from the quandary it is
placed in, regarding competence and in any event the exercise
does not comply with the provisions of that Act. It is pointed out
that Article 243-D and 243-T have to be furthered through
dedicated Commissions which are independent of political
interests. Further challenging the application of Indra Sawhney,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
it is emphasized that a precedent has to be applied on the facts
of each case, as has been held in Suresh Mahajan v. State of
Madhya Pradesh; 2022 SCC OnLine SC 589 and Government
of Karnataka v. Gowramma; AIR 2008 SC 863. It is also
pointed out from the Collection of Statistics Rules, 2011 that
Rule 5(5) makes it mandatory inter alia to disclose subject and
purpose of collection of statistics which is not evident in the
present exercise, at least in the initial stage of the notification;
bringing forth to the public the intention of the Cabinet to carry
out a caste survey. Rule-6(i) specifically fetters the power of the
State in impinging upon the powers of the Union; i.e. a census.
Rule 6(iv) ensures the narrow stitching causing minimum
intrusion into the privacy of an individual; as brought in by the
Statute, even before the declaration made in Aadhaar case by
the Hon'ble Supreme Court. From the decision of the Hon'ble
Supreme Court, it is pointed out that privacy has been held to be
not an elitist construct, not applicable to the teeming masses
who are bogged down by poverty and lack of literacy. They too
deserve a dignified existence and even if they are not aware of
it, the Court should be cautious in ensuring their basic dignity
and not allowing the State to embark upon unnecessary
intrusions into their privacy. Reliance is also placed on Forum
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
for People's Collective Efforts (FPCE) v. State of West
Bengal; (2021) 8 SCC 599 and National Confederation of
Officers Association of Central Public Sector Enterprises v.
Union of India; (2022) 4 SCC 764.
THE GROUNDS IN SHORT :-
27. The main grounds of challenge to the exercise of a
caste survey carried out by the State Government are, (i) that
there is no competence on the State legislature to carry out such
a survey, which is in essence a census, (ii) that even if there is
competence, there is no object or a legitimate aim declared for
collecting such data from the citizens, (iii) that there is an
element of coercion in disclosing personal details such as
religion, income and caste, (iii) that this coercion leads to the
invasion of privacy of an individual; declared to be a valuable
right encompassed within Article 21 of the Constitution of India
and (iv) that the measures now attempted goes against the
principles laid down in the Aadhaar decision and fails the three
pronged test laid down therein. There is also a contention raised
in one of the writ petitions that the expenditure for the massive
exercise is without due sanction of law.
THE EXPENDITURE :-
28. The allegation of Rs. 500 crores having been taken
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
from the contingency fund without due appropriation as
provided under the Constitution of India and in violation of the
law on this point as also the rules of business framed by the
State, was raised at the interim stage itself. It was found that two
earlier writ petitions filed on similar lines were closed on the
submission of the learned Advocate General that the
supplementary budget stands presented and passed by the
Legislative Assembly of Bihar. It was observed that one of the
earlier writ petitions was filed by the very same Advocate who
has filed CWJC No. 4624 of 2023, which is one of the writ
petitions considered herein, in which there was no specific
contention challenging or doubting the veracity of the
submission made by the then Advocate General. The interim
order was passed on 04.05.2023 and then and there, the matter
was posted to 03.07.2023 for final hearing. The State had moved
an appeal from the interim order before the Hon'ble Supreme
Court in which no interference was caused, since the matter was
posted to the 3rd of July, for final hearing. The Hon'ble Supreme
Court permitted the State to further move the petition if hearing
was not commenced on that date. Hence, it was very evident
that the matter would have to be taken up for final hearing on
03.07.2023. An application was filed by the petitioner in CWJC
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
No. 4624 of 2023 on 28.06.2023. The Courts were closed after
that, till the date on which the hearing was scheduled i.e. 3rd of
July, 2023.
29. It had been noticed in the interim order that there
was no contention raised in the writ petition doubting the
veracity of the submission made by the Advocate General as to
a valid appropriation having been made and the absence of such
a contention prevented the State from answering it completely
with substantiating records. The present application is filed
making a bland prayer in Paragraph 23 that on the basis of the
facts stated in the I.A. the State Government has to produce the
records containing the decision of the State Government for
expenditure of Rs. 500 crores for the Caste Based Survey in the
State of Bihar. This has to be juxtaposed with the submission of
the petitioner himself that he was aware of the decision taken by
the Government of Bihar to make appropriation from the
contingency fund to carry on the Caste Based Survey, after the
supplementary budget was presented and passed by the State
Legislative Assembly. The contentions are not properly couched
and the prayer has been made belatedly, thus preventing the
State from answering it completely with substantiating records.
We refuse to consider the said prayer, when the State has not
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
been given an appropriate opportunity to answer the contention
raised.
THE COMPETENCE OF THE STATE LEGISLATURE :-
30. As for competence or rather lack of it, the
petitioners rely on Entry 69 of List-I of the Seventh Schedule
read with Entry 94 to assert total absence of competence in the
State Legislature to carry out the present exercise which is akin
to 'Census'. Carrying out a census is argued to be the exclusive
premise of the Union Parliament based on which the Union
Parliament has framed the Census Act. Any survey and
collection of statistics for the purpose of any of the matters in
List-I also is within the exclusive domain of the Union as per
Entry 94, is the compelling argument. On the other hand, the
State relies on Articles 15(4), 16(4), 38 and 39, Parts IX and
IXA, and the 102nd Amendment to the Constitution of India
bringing in Article 342A. As for the fields of legislation, the
State banks on Entries 20, 23, 24 and 45 under List-III of the
Seventh Schedule. The State also relies on the Collection of
Statistics Act, 2008 and asserts the notification to be one issued
under the said enactment though there is no specific reference to
the said enactment in the notification by which the caste survey
was initiated. The State also placed heavy reliance on the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
judgment in Indra Sawhney.
31. Article 15 speaks of prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth with
clause (4) enabling the State to make specific provisions for the
advancement of any socially and educationally backward class
of citizens or for the Scheduled Castes and Scheduled Tribes;
notwithstanding Article 15 & clause (2) of Article 29. Clause (5)
of Article 15 enables State to also make similar provisions
relating to admissions to educational institutions. Similarly,
Article 16 speaks of equality of opportunities in matters of
public employment and clause (4) enables the State to make
provision for reservation of appointments or posts in favour of
any backward class of citizens which in the opinion of the State
is not adequately represented in the services under the State.
Indra Sawhney was concerned with Article 16 and specifically
sub-clause (4) and the ramifications it entails. Answering the
question framed as to whether clause (4) of Article 16 is an
exception to the provision, the learned Judges referred to M.R.
Balaji v. State of Mysore; AIR 1963 SC 649; State of Kerala v.
N.M. Thomas; (1976) 2 SCC 310 and T. Devadasan v. Union
of India ; AIR 1964 SC 179.
32. M.R. Balaji found that Article 15(4) has to be read
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
as a proviso or an exception to Articles 15(1) and 29(2); Article
15(4) being inserted by the first amendment in the light of the
decision in State of Madras v. Champakam Dorairajan; AIR
1951 SC 226. M.R. Balaji also held that this principle is
applicable equally to clause (4) of Article 16, following which
another Constitution Bench by majority in T. Devadasan held
that clause (4) of Article 16 has already been held to be a
proviso or an exception to Clause (2). The dissenting opinion in
the said decision that Article 16(4) is not an exception to Article
16(1), but is only an emphatic way of stating the principle
inherent in the main provision was accepted by the majority in
N.M. Thomas and also in Indra Sawhney; larger Benches. It
was held that Article 16 does permit reasonable classification
for ensuring attainment of equality of opportunity; the assurance
of which is possible, only if unequally situated persons are
treated unequally and not equally, in certain situations. Not
doing so, according to the majority judgment in Indra
Sawhney, 'would perpetuate and accentuate inequality'. Article
16(1) being a facet of Article 14; implicitly permits
classification and the minute that is recognized, clause (4)
becomes an instance of classification inherent in clause (1) and
the theory of it being an exception becomes untenable. In
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
dealing with the question whether Article 16(4) is exhaustive of
the very concept of reservations, it was held that the clause is
exhaustive of reservations only in favour of backward classes
and there could be exceptional situations where further
reservations of whatever kind could be provided in public
interest, to redress a specific situation.
33. The leading judgment in Indra Sawhney,
approved by the majority, also considered the question as to
whether a 'provision' contemplated by Article 16(4), must
necessarily be made by the Parliament or Legislature of a State.
It was held that the definition of State in Article 12 is not
restricted to the Government, the Parliament of India or the
Government and the Legislature of each of the States, but
includes all local authorities and other authorities within the
territory of India under the control of the respective
Governments. The term, local authorities in Article 12 was also
found to take within its ambit all municipalities, panchayats and
other similar bodies. Viewed in that perspective of the wider
definition of State in Article 12, it was held that it is not
reasonable, possible and practical to say that the Parliament or
Legislature of the State itself, should provide for reservation of
post/appointments in the services of all such bodies, besides
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
providing for reservation in services under the Central/State
Government. Reading the definition of State along with Article
13(3)(a); the definition of 'law', it was held that a 'provision' as
contemplated under Article 16(4) can be provided not only by
the Parliament or Legislature but also by the Executive in
respect of Central/State services and by the local bodies and
other authorities coming within the ambit of Article 12; in
respect of their respective services. We are conscious of the fact
that the said declarations on the ambit and scope of Article 16
was specifically on the power conferred with respect to
affirmative actions by every entity coming under the definition
of State.
34. If such affirmative action is permitted by all such
entities coming within the definition of State, then as a corollary
it has to be held that the decision-making process, in so far as
bringing forth such affirmative actions, would include the
identification of socially and educationally backward classes
under Article 15 and backward classes under Article 16. It was
so held in Indra Sawhney, Paragraph 736-
"... Any determination of
backwardness is not a subjective exercise nor a
matter of subjective satisfaction. As held herein;
as also by earlier judgments; the exercise is an
objective one. Certain objective social and other
criteria have to be satisfied before any group or
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
class of citizens could be treated as backward. If
the executive includes, for collateral reasons,
groups or classes not satisfying the relevant
criteria, it would be a clear case of fraud on
power."
35. The above extract answers the question raised in
Paragraph 736, in so far as the possibility of abuse of power by
the political executive; the adequate safeguard against which
misuse was found in Article 16(4) itself. Hence, before an
affirmative action is taken by the State, there should be
satisfaction of the relevant criteria by which the backwardness
can be defined and for that purpose the social standing of the
groups or communities which take in various factors; like the
social capital as also the financial & educational capacity of the
members of such communities, has to be ascertained. The
ascertainment of social capital would include representation in
the various administrative services, legislative & governing
bodies, enrollment in educational institutions and the general
living standards and so on, as prevalent among the members of
the various communities within a local area. Hence, when
affirmative action can be provided by the various entities
coming under the definition of State, the executive branch of the
Government who also has been conferred with the power to
bring in such affirmative actions; can adopt such measures for
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
better understanding the living conditions, social, economic and
educational status of the various communities, existing within
its boundaries. For the State Governments to take up the cause
of backward communities, as a welfare state is wont to do, there
should be collection of empirical data, on which would be based
the affirmative actions and the various schemes and projects to
uplift the marginalized masses and bring them to the
mainstream.
36. The State Governments cannot wait on their
haunches for the Central Government to carry out the census
and provide it with the details so as to ensure affirmative action
within the State, in its services under Article 16(1) & (4) and for
its downtrodden under Article 15(1) & (4). What has been
stated about Article 16 and the power of the executive branch of
the State, applies equally to Article 15(1) and (4) of the
Constitution of India. Therein also, the State is empowered to
make special provisions for the advancement of any socially and
educationally backward class of citizens or for the Scheduled
Castes and the Scheduled Tribes; which necessarily is not
confined to an affirmative action but essentially is an upliftment
of such socially and educationally backward communities so as
to ensure due recognition and representation in society.
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
37. Articles 15 & 16, while prohibiting any
discrimination on grounds of religion, race, caste, sex or place
of birth and providing for equality of opportunities in matters of
public employment, inherently provides for beneficial schemes
for the advancement of socially and educationally backward
classes and reservation in favour of citizens, not adequately
represented in, the services under the State, its instrumentalities
and the various representative bodies of governance. Article
246, which is the source of all legislation has to be read with
Articles 15 & 16, along with the fields of legislation as relied on
by the State coming under List-III of the Seventh Schedule to
the Constitution of India. Entry-20 of List-III refers to economic
and social planning and Entry 23 deals with social security and
social insurance; along with employment and unemployment.
The power of the State legislature to make laws under the above
fields of legislation, without repugnancy to any legislation
brought out by the Union, cannot at all be disputed. In this
context, Entry 45 of List-III also assumes significance in so far
as it deals with inquiries and statistics for the purpose of any of
the matters specified in List II or III. Article 38 also obliges the
State to secure a social order for promotion of the welfare of the
people with every institution of national life permeated with
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
justice, social, economic and political; striving to minimise and
eliminate in-equalities amongst individuals and groups of
people. Article 39 again exhorts the State to follow the
principles of policy which would further equality in every
aspect of human life. Though the provisions in Part IV are not
enforceable, they are fundamental to the governance of the
country and enjoins the State to apply it in making laws. It has
been held in Atam Prakash v. State of Haryana; AIR 1986 SC
859 that while the Preamble to the Constitution is the guiding
light; embodying the hopes and aspirations of the people, the
Directive Principles set out the proximate goals. The collection
of statistics to further, economic and social planning and ensure
social security and insurance is definitely within the premise of
the State and when such action is taken by way of a legislation
or even by executive fiat, permissible under Article 162 of the
Constitution of India, conferring privileges or favours on any
particular community found to be backward or attempting to
bringing in such schemes or welfare measures; that cannot be
faulted.
38. The State has a duty to ensure and satisfy itself
that benefits or privileges are provided to further the cause of a
community or group which has been identified as backward, as
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
has been argued by the learned Advocate General. For such
satisfaction to be entered by the State, which should also be an
objective satisfaction; either by its legislative body or the
Government, which is the executive body, necessarily, there
should be empirical data available as to the conditions of a
community or group which is earmarked for the purpose of
conferring such preferential benefits, as has been held in Indra
Sawhney. While the State has the power to bring in affirmative
action, it also has a corresponding duty to satisfy itself that the
benefit conferred by such affirmative action satisfies the
relevant criteria; which satisfaction as has been declared, should
be objective and not subjective. The instant survey is said to be
under seventeen heads, as seen from the notification issued by
the State Government, a brief perusal of which itself would
satisfy any reasonable man that these heads would bring out the
social, educational and economic condition under which a
community or group exist within the larger society. We also
have to specifically notice that the objection taken is only with
respect to the collection of details of religion, caste and income;
which we will deal with, a bit later. We cannot but; after the
aforesaid discussions, at this point, emphatically say that the
survey which is now initiated by the Government is within its
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
competence since any affirmative action under Article 16 or
beneficial legislation or scheme under Article 15 can be
designed and implemented only after collection of the relevant
data regarding the social, economic and educational situation in
which the various groups or communities in the State live in and
exist. We also have to notice the provisions under Article 243D
& 243T which further enjoins reservation to local bodies, of not
only S.C and S.T, but also backward class of citizens.
39. The constitutionality of Articles 243D and 243T
providing for reservation in Local Government Institutions and
Bodies was examined in K. Krishna Murthy in juxtaposition
with the reservation policies under Articles 15(4) and 16(4).
Reservation in local self-government was held to be not a
chance provided to play leadership roles but a measure of
protective discrimination to weaker sections at the local level, so
as to afford them adequate representation in local self-
governance. The provisions under challenge were held to be
analogous and was based on the proportion between the
population belonging to the downtrodden or backward
categories and the total population of the area in question.
Upholding the provision to reserve seats and the post of
Chairperson in favour of backward classes, a distinction was
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
drawn from the nature and purpose of reservation policies under
Articles 15(4) and 16(4). It was held that backwardness in the
social and economic sense is not the only criterion for
conferring reservation benefits and hence the exclusion of
creamy layer in the context of political representation would not
be proper. The State Government's power to determine the
extent of such reservation on the basis of empirical data such as
population surveys was clearly emphasized; the guiding
principle being the principle of 'proportionate representation'.
The rotational policy envisaged under the two provisions was
also held to be a safeguard against the possibility of a particular
office being reserved in perpetuity.
40. Reservations in local bodies as well as in the
position of Chairpersons, in favour of backward class citizens,
does not explicitly provide any guidance regarding the quantum
of reservation and in the absence of such explicit quantum the
only presumption is that such reservation should be guided by
the standard of proportionate representation for which
necessarily there should be collection of empirical data as to the
quantum of population and the percentage of the backward
classes within such population. It was held that economic
backwardness should not be conflicted with political
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
backwardness and even a person from a declared backward
community having financial autonomy, if enabled to be
represented in the local body, the same could inure to the benefit
of and result in the upliftment, of the category/class to which
he/she belongs. The Court categorically held that the reservation
benefits contemplated by Articles 15(4) and 16(4) cannot be
mechanically applied in the context of reservations enabled by
Articles 243D and 243T. Restriction of access to education and
employment cannot be readily equated with the disadvantage in
the realm of political representation. In conclusion, while
upholding the Constitutional validity of both the Articles, it was
held so in Paragraph 82 (iii):-
"(iii) We are not in a position to
examine the claims about overbreadth in the
quantum of reservations provided for OBCs
under the impugned State legislations since
there is no contemporaneous empirical data.
The onus is on the executive to conduct a
rigorous investigation into the patterns of
backwardness that act as barriers to political
participation which are indeed quite different
from the patterns of disadvantages in the matter
of access to education and employment. As we
have considered and decided only the
constitutional validity of Articles 243-D(6) and
243-T(6), it will be open to the petitioners or
any aggrieved party to challenge any State
legislation enacted in pursuance of the said
constitutional provisions before the High Court.
We are of the view that the identification of
"backward classes" under Article 243-D(6)
and Article 243-T(6) should be distinct from the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
identification of SEBCs for the purpose of
Article 15(4) and that of backward classes for
the purpose of Article 16(4)."
41. The above proposition of law was followed in
Vikas Kishanrao Gawali wherein the three-pronged test as
propounded in K. Krishna Murthy was specifically adverted to.
The three pronged test was succinctly stated as (i) to set up a
dedicated Commission to conduct contemporaneous rigorous
empirical inquiry into the nature and implications of the
backwardness qua local bodies, within the State; (2) to specify
the proportion of reservation required to be provisioned local
body wise in the light of recommendations of the Commission,
so as to not fall foul of overbreadth and (3) in any case, such
reservation not exceeding 50 per cent of the total seats reserved
in favour of SC, ST and OBC. The need for contemporaneous
empirical inquiry to identify the quantum of reservation qua
local bodies was emphasized and this is the task which the State
is embarking upon.
42. While the three-pronged test as stated herein
above speaks of a dedicated Commission to conduct an
empirical inquiry into the nature and implications of
backwardness, it has to be pertinently observed that Indra
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Sawhney emphasized that the appointment of Commissions is
not the only procedure, method or approach to be adopted in
identification of backwardness and there is no such thing as a
standard or model procedure/approach. It was declared that 'It
is for the authority (appointed to identify) to adopt such
approach and procedure as it thinks appropriate, and so long as
the approach adopted by it is fair and adequate, the Court has
no say in the matter' (sic para 783). It is also emphatically
stated that '...if a Commission or Authority begins the process
of identification, with castes (among Hindus) and occupational
groupings among others, it cannot by that reason alone be said
to be constitutionally or legally bad' (sic para 783). Hence, not
only qua local bodies, for identifying backwardness; for the
purpose of affirmative action or schemes or projects to ensure
their upliftment as also providing adequate representation in
governance there can be a method adopted, a reasonable method
and procedure, for the purpose of identifying the backwardness
in society, which could also be on the basis of caste.
43. We have also looked at the various statutes
produced in C.W.J.C. No.4624 of 2023 for the constitution of
Commissions for Backward Classes. The functions of the
Commissions as seen from the statutes are more or less the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
same. We specifically look at the Bihar State Commission for
Backward Classes Act, 1993, wherein the function of the
Commission is to examine requests for inclusion of any class of
citizens as a backward class in the list and hear complaints of
over inclusion or under inclusion of any Backward Class in this
list and tender such advice to the State Government as it seems
appropriate. The advice of the Commission is also declared to
be ordinarily binding on the State Government. It would be
futile to expect the Commission to carry out the collection of
empirical data and it cannot be said that the request of inclusion
or exclusion of any class can only come from individuals or
representatives of such backward classes or groups. The Welfare
State having appointed the Commission should also further the
object of upliftment of such backward communities and the
State cannot be a mute spectator, waiting to put its imprimatur
on the recommendations of the Commission.
44. If the State machinery is put to use for collecting
empirical data, which we have found is possible and
constitutionally permissible, the appointment of a Commission
or the power to such appointment of Commissions cannot
deprive the State from carrying out a survey, for collecting
empirical data, aimed at identifying backwardness to further the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
cause of backward communities including the Scheduled Castes
and Scheduled Tribes. We specifically notice that the Karnataka
State had brought in an amendment by way of Section 9 to
conduct survey of social and educational status of the citizens of
India and to identify the socially and educationally backward
classes for the purpose of recommendation to the State
Government, of necessary measures. If the State had the
legislative power to carry out such an exercise, then necessarily,
the Executive Government could also bring out notifications
under Article 162 of the Constitution, when there is no
legislation existing on that count, either of the Parliament or the
State Legislature; when the matter is one which comes within
List III of the Seventh Schedule under the Constitution. The
appointment of a Commission is one of the modes for
identifying backward communities and the collection of
empirical data by the Government is only furthering the process
of upliftment of the backward communities; which data
collected could also be placed before the Commission for an
independent recommendation as to inclusion and exclusion of
various communities.
45. We have to specifically notice that the State in its
counter affidavit has spoken about the involvement of the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
various Commissions statutorily constituted for the purpose of
identifying the various castes that exist in the State; which were
also later put through the Administration at the District Level for
proper identification of the various castes within the State of
Bihar. It is for the State to decide whether the details collected
would be placed before the Commissions, for the purpose of
recommendations or a policy framed by itself from the details
collected. At the risk of repetition, it has to be noticed that the
mere possibility of an abuse for political ends cannot result in
the Court interfering in a valid procedure adopted.
46. The objection raised, which another Division
Bench (authored by myself) upheld on a prima facie
consideration at the interim stage, was also of the generic
meanings assigned to census and survey. It was the petitioners'
contention that what the State attempts is a census under the
garb of a survey, which is a legislative power clearly conferred
on the Union Parliament as per Entry 69 of List-I of the Seventh
Schedule. Much was also argued of the nomenclature under
which the survey was published; being Caste Survey, having
disclosed the surreptitious, nefarious political game of the
Executive Government to identify the caste equations in the
State so as to hatch political alliances and even carry out
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
delimitation of constituencies. We have to immediately notice
the caution expressed in Indra Sawhney so far as the power
conceded to even the executive arm of the State Government as
also the various entities coming under the definition of State to
carry out an affirmative action within its services. The mere
possibility of an abuse of power cannot lead to restriction of a
provision in the Constitution, curtailing its full effect and
reducing its fullest amplitude. As has been held, the action of
the State should be informed with reason and an objective
satisfaction of the relevant criteria; which stage we have not yet
reached. The attempt of the petitioners is to say that the State
cannot collect such data in which case the power conceded to
the State Legislature and its executive arm, to give the fullest
effect to the provisions of Articles 15 and 16 would be curtailed
and frustrated. We are unable to accept the contention of the
petitioners that the State Legislature is devoid of the power to
attempt a survey in the manner in which it has now been
attempted for reason of only of lack of competence. When the
power of the Legislature and the Executive Government is clear
from the Constitution, there is no purpose in looking at the
generic definitions of the term and solely on that ground, set
aside an action of the Government which is otherwise valid
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
under the Constitution.
47. It has been noticed in the interim order that
census, as the term is generically defined, gives forth the
connotation of accurate facts and verifiable details while a
survey brings forth only abstract opinions and perceptions of the
subjects of the survey. We have to notice that the State
Government in collecting the data, especially in finding out the
social, educational and financial situation of the various
communities within the State is not looking at exactitude nor
can mathematical precision be the norm in such data collection
from the entire citizenry within a State. In fact, no affirmative
action or a beneficial legislation or schemes and measures to
uplift the backward community can be made if there has to be
collection of exact data. As has been rightly pointed out by the
learned Advocate General, what is intended by the survey is
collection of broad estimates based on which the State can
initiate legislative action and implement beneficial schemes
even by an executive fiat so as to ensure the development of the
backward communities within its State.
48. It is also to be noticed that while the Constitution
includes 'Census' under Entry 69 of List-I there is no definition
of the term in the Constitution. The Union Parliament has
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
brought out the Census Act, 1948 which also does not have a
definition of that term and there is no enumeration of the details
which would fall under the word 'Census'. It is, however, clear
that a census under the Census Act, 1948 can only be carried out
by the Central Government wherein even the staff of the local
authorities have to be made available to carry on the nitty gritty
of interphase with the citizens and collection of data. The
mandate of an active cooperation of the State Government is
also very clear from Section 7, wherein the District Magistrate
or such authority as the State Government appoints in this
behalf, being empowered to call upon any person within the
State to give such assistance as has been specified in the order,
towards the taking of a census of the persons, who are at the
time of such census, occupying their lands or working in their
premises or residing within the areas in which local authorities
are established.
49. The question is as to whether Entry 69 prohibits
any survey to be conducted which could also result in
enumeration of details that could be collected under the Census
Act, 1948. In this context, we have to specifically notice the
Collection of Statistics Act, 2008 brought in by the Union
Parliament which specifically defines statistical survey as a
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
'census' or a 'survey', whereby information is collected from all
the informants in the field of inquiry or from a sample thereof,
by an appropriate authority under the Act. The word 'census'
and 'survey' have been used interchangeably with reference to
appropriate governments of the Union, State or Union
Territories, making it very clear that the inclusion of 'census'
under Entry 69, does not prohibit any State Government from
collecting live data, as collected in a census, for the purpose of
implementing welfare schemes within the State and also
carrying out affirmative action.
50. We need not dwell upon the source of power from
the Collection of Statistics Act, since we have otherwise found
competence on the State. Though there is a gazette notification,
it does not speak of sourcing the power from that Act. The
learned Advocate General pointed out that even if the source of
power is not specified in the notification, if the State is
conceded such power under an enactment, the Court cannot set
it aside only for reason of the source having not been referred to
in the notification. We are quite conscious of the said principle,
but we notice that a notification under the Collection of
Statistics Act requires certain details to be provided, as is
mandated under Rule 5 of the Collection of Statistics Rules,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
2011. Rule 5(5) of the Rules of 2011 specify that a notification
under Section 3 of the Act shall contain inter-alia the subject
and purpose for collection of statistics and the obligation of the
informant which definitely is not available in the notification.
We hasten to add that we are not dealing with the contention of
there being no legitimate aim for the attempted survey, at this
stage, and we only notice the absence of the purpose for
collection of statistics, in the notification, which is a mandate
under the Rules of 2011. The State could have proceeded under
the Collection of Statistics Act; under the proviso (c) to Section
3 or based on the authority we found earlier from the various
constitutional provisions, to carry out a survey of the instant
nature; both of which could be treated as valid. Proviso (a) to
Section 3 prohibits a State Government or Union Territory
Administration from issuing any direction with respect to
collection of statistics relating to any matter falling under any of
the entries specified in List 1 of the Seventh Schedule of the
Constitution. Proviso (b) also prohibits any State Government or
Union Territory Administration from issuing any direction
similar to that issued by the Central Government, till the
collection of statistics by the Central Government is completed.
Proviso (c) likewise restrains the Central Government from
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
issuing any similar direction, when a State Government or
Union Territory Administration has issued a direction under
Section 3 for the collection of statistics relating to any matter.
Collection of statistics is hence a power conferred on the Union,
States and the Union Territories. The blanket prohibition is only
insofar as the States and U.Ts being disabled to carry out a
survey with respect to matters in List I and even otherwise,
when the Central Government is in the process of collecting any
statistics. With respect to matters not included under List I, the
prohibition applies equally, depending on who; whether the
Centre or the State having first initiated the process. We notice
the Collection of Statistics Act only to emphasize that the
inclusion of Census under Entry 69 of List I does not restrict a
survey of the very same details that could be collected under the
Census Act, unless it is with reference to any matter under List I
or of such statistics which the Centre is in the process of
collecting.
51. An overlap of power leading to repugnancy occurs
only in such circumstances or when the State attempts to collect
statistics from outside its boundaries either under the Collection
of Statistics Act or under the various Entries in List II or III read
with Article 246, Article 15(5) and 16(4) of the Constitution of
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
India. We once again reiterate to emphasize, the use of the
words 'census' and 'survey' interchangeably in the Collection of
Statistics Act, which is an enactment brought out by the Union
Parliament quite aware of the inclusion of Census under Entry
69 of List I of the Seventh Schedule. A PAN- (Presence Across
the Nation)-India census can only be carried out by the Central
Government, is the reason for Entry 69 in List I of the Seventh
Schedule.
THE LEGITIMATE OBJECT OR GOAL :-
52. Having found competence on the State
Government to initiate a measure of survey, in the nature of that
challenged, we have to look at whether there is any declared
objective in the survey being carried out. We cannot accept the
ground raised by the petitioners that the object for which the
survey is carried out should have been explicit in the
notification itself, and that, it cannot be declared in the counter
affidavit, which would be only an afterthought to save the
situation and would be in the teeth of the authoritative
declaration in Mohinder Singh Gill. In Mohinder Singh Gill, it
was held that when a statutory order is made, it's validity must
be adjudged by the reasons mentioned therein and cannot be
supplemented by fresh reasons in the shape of an affidavit or
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
otherwise (sic. Paragraph 8). The reliance placed was on
Commissioner of Police, Bombay v. Gordhandas Dhanji; AIR
1952 SC 16, which held as follows: "The public orders publicly
made in exercise of statutory authority cannot be construed in
the light of explanations subsequently given by the Officer
making the order of what he meant or of what was in his mind
or what he intended to do. Public orders made by public
authorities are meant to have public effect and are intended to
affect the actions and conduct of those to whom they are
addressed and must be construed objectively with reference to
the language used in the order itself" (sic). We have to accept
the reservation made by the learned Advocate General that this
applies to administrative orders and not necessarily to
notifications made under Article 162 implementing policies of
the government, which has to be tested on the background of
how the decision-making process came to be.
53. Policy decisions shall not be interfered with by
Courts unless patently arbitrary, as has been held in M.P. Oil
Extraction. If there is an objective and rational foundation for
the Government's decision, the Courts will not embark upon an
exercise to ferret out a better measure in substitution of what the
Government proposes. It is trite that in matters of economic
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
rights and policy decision the scope of judicial review is limited
and circumscribed. If the executive authority is found to be
within its competence to frame a policy for better administration
of the State; unless the policy framed is absolutely capricious,
not being informed by any reason and can be clearly held to be
arbitrary, founded on mere ipse dixit of the executive
functionary thereby offending constitutional provisions or
comes into conflict with any statutory provision, the Court
cannot and should not overstep the limits and tinker with the
policy, the framing of which is in the exclusive domain of the
State. It has been declared that-
"Policy decision is in the domain of
the executive authority of the State and the
Court should not embark on the uncharted
ocean of public policy and should not question
the efficacy or otherwise of such policy so long
the same does not offend any provision of the
statute or the Constitution of India." (sic Para-
41)."
54. East Coast Railway distinguished the requirement
of sufficiency of materials to base a decision; from the duty to
record reasons, both of which could lead to the decision being
sustained. It was held that every order passed by a public
authority should disclose due and proper application of mind of
the person making the order; which may be evident from the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
order itself or the record contemporaneously maintained.
Disclosure of the mind of the authority is best done by recording
reasons; while absence of reasons in the order passed or in the
record contemporaneously maintained is clearly suggestive of
the order being arbitrary and legally unsustainable. There can be
no hard and fast rule formulated in this regard was the finding.
In the cited case the administrative decision taken for
cancellation of the typing test was found to be bad for reason of
the order having not stated any reasons whatsoever and no
reasons having been set out in any contemporaneous record or
file. Census Commissioner reiterated that the wisdom of a
policy decision does not lie within the domain of Courts and
there can be interference caused only if it is absolutely
capricious, not informed by reasons, totally arbitrary and
founded on the ipse dixit of the administrative body.
55. The counter affidavit dated 01.05.2023 of the
State, not only asserts the object behind the survey but also
speaks of the decision-making process. It is stated in the counter
affidavit that the 2021 census having not commenced, the
beneficial schemes and allocations are blocked at the level of
the population, as has come out in the census of 2011. Almost
80% of the population, in the State of Bihar is said to be rural
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
and the literacy and per capita income is at a lower side
compared with the other States in the Union. Within the State,
Mungeri Lal Commission was constituted by the Government of
Bihar to identify the socially and educationally backward castes
within the State. The initial list of backward classes was
prepared on the basis of that report and based on its
recommendation, the reservation for backward classes was first
introduced in 1978 by resolution dated 10.11.1978, which
resolution contained the list of backward classes and extremely
backward classes. It was later that the Bihar Reservation of
Vacancies in Posts and Services (For Scheduled Castes and
Scheduled Tribes and Other Backward Classes) Act, 1991 came
into force. The State also has constituted State Commissions for
Backward Classes, which has to be supplied with sufficient
material, for the purpose of making recommendations. As of
now, finding the list of existing castes within the backward
classes and extremely backward classes to be insufficient, prior
to the caste-based survey, a meeting of all the Commissions
related to the castes in the State is said to have been convened. It
is further stated that on 09.06.2022, the State Commission for
Backward Classes, Commission for Extremely Backward
Classes, the State Commission for Scheduled Castes, State
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Commission for Scheduled Tribe and also the Commission for
Upper Classes met on 09.06.2022, as is seen from the document
produced as Annexure-K in the counter affidavit dated 29.04.23
filed in CWJC No. 5542/23. The various Commissions were
requested to submit a caste list related to the respective
commissions, which lists were directed to be examined by the
District Magistrates of the State as per the communication dated
13.07.2022. The District Magistrates held meetings at the
district level, block level and with urban bodies for preparation
of the caste list which could be used in the caste survey. Again,
on the basis of the reports received from the District
Magistrates, a meeting was organised of the Commissions, the
Department of Backward Classes and Extremely Backward
Classes Welfare Department, as seen from Annexure-C. It was
in by this exercise that the different heads under which the
details are to be collected and the list of castes were finalised
after due process, as referred to earlier, and brought out by
notification dated 28.07.22.
56. It is also pertinent that the Governor declared the
policy of the Government in both Houses of the legislature,
which is seen from Annexure-A, produced in the counter
affidavit dated 01.05.2023 filed in CWJC No.5542/23. The
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
policy decision as stated by the Governor; though on
27.02.2023, later to the notification, discloses the object and the
intention behind the notification which was brought out on
06.06.2022 which speaks of a Cabinet Decision on 02.06.22. We
extract hereunder the introductory paragraph and the last but
one paragraph of the speech, relating to the Caste Survey :-
"On the occasion of the first session of the new
year, I convey my best wishes to all of you in the
joint session of both the houses of the Bihar
Legislature and wish for the prosperity and multi-
dimensional development of the State. Financial,
legislative and other important works are to be
completed in this session. I expect all the members
of Bihar Legislative Assembly to play a
constructive role for the development of Bihar. Your
valuable suggestions and discussions will
strengthen the progress of Bihar.
xxx xxx xxx
The State Government is continuously working on
the principle of Development with Justice and
under the next dimension of this principle, caste-
based census is being done with the aim of
ensuring all round development of all sections of
the State. Keeping in view the resolutions
unanimously passed by all the Hon'ble MLAs, on
June 2nd 2022, the State Government decided to
conduct caste-based enumeration from its
financial sources and is also moving fast on this.
It is a pleasure to inform you that the State
Government has completed the first phase of this
programme on January 21, 2023 and the second
phase is also targeted to be completed in due time
as per the schedule. For this, caste-based
enumeration portal and caste-based enumeration
app have been created. Under this enumeration, a
complete survey will be done on the caste,
economic, educational, and migrant status of all
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Biharis living inside and outside the boundaries
of the State, on the basis of which the plans will
be prepared for Biharis of all regions, castes and
classes which will open new dimensions of their
development. The State Government expresses its
thanks for the co-operation of you, the Hon'ble
members and the people of Bihar in the first
phase of caste-based enumeration. It is hoped
that full co-operation of all of you will continue to
be received in the second phase as well."
57. The Object is very explicit which was the basis of
the decision taken by the legislators followed up by the
Executive Government.
58. We notice the judgment of the Hon'ble Supreme
Court in CAG v. K.S. Jagannathan; (1986) 2 SCC 679 from
which we extract paragraph numbers 30 and 31 which dealt with
the condition of the Schedule Castes and Schedule Tribes and
the endeavor made in the Constitution to atone for the sins of
the depredation visited on the said communities :-
"30. What relevance the above decision has
to the facts of the present case is also beyond
us. It is not possible to equate the members
of the Scheduled Castes with goods imported
from abroad. They are human beings like all
other human beings, the only difference
being that for centuries a large number of
their countrymen have not treated them as
human beings but as sub-human creatures
beyond the pale of society and even of
humanity. William Blake in this poem
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
"Auguries of Innocence" said:
"Every Night and every Morn
Some to Misery are Born.
Every Morn and every Night
Some are Born to sweet delight.
Some are Born to sweet delight,
Some are Born to Endless Night."
The members of the Scheduled Castes were
the children of the "Endless Night". Their
birthright was the badge of shame; their
inheritance, the overflowing cup of
humiliation; their constant and closest
companion, degradation; the bride of their
marriage, lifelong poverty; and their only
fault, to be born to their parents. They were
denied education. They were denied jobs
except the lowest menial tasks. They were
denied contact with persons not belonging to
their castes for their touch polluted and even
their shadow defiled, though the touch and
the shadow of the animals did not, for men
rode on horses and elephants and on mules
and camels and milked cows, goats and
buffaloes. They were denied worship and the
doors of the temples were shut on their faces
for their very presence was supposed to
offend the gods. All these wrongs were done
to them by those who fancied themselves
their superiors. As the anonymous satirist
said:
"We are the precious chosen few:
Let all the rest be damned.
There's only room for one or two:
We can't have Heaven crammed."
The treatment meted out to the members of
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
the Scheduled Castes throughout the ages
was an affront to Human Rights. It was in a
spirit of atonement for the wrongs done to
them and to make restitution for the injury
and injustice inflicted upon them that the
framers of the Constitution enacted Article
16(4) placing them in a separate class in
matters relating to employment or
appointment to any office under the State,
formulated the Directive Principle embodied
in Article 46, and proclaimed the great
constitutional mandate set out in Article 335.
31. It is equally not possible to equate the
members of the Scheduled Tribes with goods
imported from abroad. They too are human
beings like other human beings with this
difference that for centuries they have
preferred to follow the primitive ways of
their forefathers. Remote and almost
inaccessible in their hilly vastness and
secluded forests, civilization has passed
them by. The benefits of high sophisticated
technology is as unknown to them as its
hazards of noxious fumes and poisonous
gases. Simple and naive, they have become a
rich mine for exploitation by the human
products of civilization. Their lands have
been stolen from them by skullduggery and
they have been tricked into selling the
products of their craft and skill for a song. It
was to protect them from such exploitation
and to enable them to participate in the
mainstream of the nation's life that they have
been given special treatment by Articles
16(4), 46 and 335 of the Constitution."
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
59. The situation of the backward communities was
not much different and, in this context, we specifically notice
the debates in the Constituent Assembly on the framing of
Article 16, extracted in Indra Sawhney. Article 16(4) as it was
originally proposed did not qualify the words 'class of citizens'
with the word 'backward'. The debates in the original Drafting
Committee under the Chairmanship of Dr. B.R. Ambedkar
inserted the word 'backward' in between the words 'in favour of
any' and 'class of citizens' appearing in Article 16. There was
stiff opposition to the said expression on the ground that it was
quite vague and is likely to lead to complications in the future.
However, the Vice President of the Constituent Assembly Dr.
H.C. Mookerjee was of the opinion that the clause, 'affects
certain sections of our population - sections which have been in
the past treated very cruelly - and although we are today
prepared to make reparations for the evil deeds of our
ancestors, still the old stories continue, at least here and there
and capital is made out of it outside India...'(sic).
60. After elaborate discussion, some of which were
noticed, the speech of Dr. B.R. Ambedkar, the Chairman of the
Drafting Committee, which put to rest the entire objections were
quoted in extenso. We only extract the last portion quoted,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
which puts the matter in the correct perspective:
"Somebody asked me: 'What is a backward
community? Well, I think anyone who reads the
language of the draft itself will find that we have left
it to be determined by each local Government. A
backward community is a community which is
backward in the opinion of the Government''.
(Emphasis supplied by us)
61. It is in this background that we have to look at
paragraph Nos. 782 and 783 of Indra Sawhney which are
extracted hereunder:
"782. Coming back to the question of
identification, the fact remains that one has to
begin somewhere -- with some group, class
or section. There is no set or recognised
method. There is no law or other statutory
instrument prescribing the methodology. The
ultimate idea is to survey the entire populace.
If so, one can well begin with castes, which
represent explicit identifiable social
classes/groupings, more particularly when
Article 16(4) seeks to ameliorate social
backwardness. What is unconstitutional with
it, more so when caste, occupation poverty
and social backwardness are so closely
intertwined in our society? [Individual survey
is out of question, since Article 16(4) speaks
of class protection and not individual
protection]. This does not mean that one can
wind up the process of identification with the
castes. Besides castes (whether found among
Hindus or others) there may be other
communities, groups, classes and
denominations which may qualify as
backward class of citizens. For example, in a
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
particular State, Muslim community as a
whole may be found socially backward. (As a
matter of fact, they are so treated in the State
of Karnataka as well as in the State of Kerala
by their respective State Governments).
Similarly, certain sections and denominations
among Christians in Kerala who were
included among backward communities
notified in the former princely State of
Travancore as far back as in 1935 may also
be surveyed and so on and so forth. Any
authority entrusted with the task of identifying
backward classes may well start with the
castes. It can take caste 'A', apply the criteria
of backwardness evolved by it to that caste
and determine whether it qualifies as a
backward class or not. If it does qualify, what
emerges is a backward class, for the purposes
of clause (4) of Article 16. The concept of
'caste' in this behalf is not confined to castes
among Hindus. It extends to castes, wherever
they obtain as a fact, irrespective of religious
sanction for such practice. Having exhausted
the castes or simultaneously with it, the
authority may take up for consideration other
occupational groups, communities and
classes. For example, it may take up the
Muslim community (after excluding those
sections, castes and groups, if any, who have
already been considered) and find out
whether it can be characterised as a
backward class in that State or region, as the
case may be. The approach may differ from
State to State since the conditions in each
State may differ. Nay, even within a State,
conditions may differ from region to region.
Similarly, Christians may also be considered.
If in a given place, like Kerala, there are
several denominations, sections or divisions,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
each of these groups may separately be
considered. In this manner, all the classes
among the populace will be covered and that
is the central idea. The effort should be to
consider all the available groups, sections
and classes of society in whichever order one
proceeds. Since caste represents an existing,
identifiable, social group spread over an
overwhelming majority of the country's
population, we say one may well begin with
castes, if one so chooses, and then go to other
groups, sections and classes. We may say, at
this stage, that we broadly commend the
approach and methodology adopted by the
Justice O. Chinnappa Reddy Commission in
this respect.
783. We do not mean to suggest -- we
may reiterate -- that the procedure indicated
hereinabove is the only procedure or
method/approach to be adopted. Indeed,
there is no such thing as a standard or model
procedure/approach. It is for the authority
(appointed to identify) to adopt such
approach and procedure as it thinks
appropriate, and so long as the approach
adopted by it is fair and adequate, the court
has no say in the matter. The only object of
the discussion in the preceding para is to
emphasise that if a Commission/Authority
begins its process of identification with
castes (among Hindus) and occupational
groupings among others, it cannot by that
reason alone be said to be constitutionally or
legally bad. We must also say that there is no
rule of law that a test to be applied for
identifying backward classes should be only
one and/or uniform. In a vast country like
India, it is simply not practicable. If the real
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
object is to discover and locate
backwardness, and if such backwardness is
found in a caste, it can be treated as
backward; if it is found in any other group,
section or class, they too can be treated as
backward."
62. It is thus crystal clear that identification of the
backward communities has to be made after a survey of the
entire populace and the majority judgment did not find any fault
with identification of caste, which would represent explicit
identifiable social classes/groupings, especially when the very
intention of Article 16(4) was to ameliorate social
backwardness. It is worthwhile to also notice that the majority
judgment was in favour of the approach and methodology
adopted by Justice O. Chinnappa Reddy Commission in
Karnataka. Without a detailed discussion of the report itself, it
has to be noticed that Justice O. Chinnappa Reddy Commission
considered "economic and cultural impoverishment and social
deprivations" as the singular cause of perpetual backwardness.
While poverty is an indicator of economic impoverishment, lack
of educational attainments reflected cultural impoverishment
amongst the communities. The Commission opined, social
deprivation as stemming from a structure based on hierarchical
caste and community status. The Commission evolved four
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
quantifiable indicators to reflect on all these factors :-
1) Caste and community-based poverty level in
comparison with the corresponding state
averages;
2) Caste and community averages of students
appearing in matriculation; termed the first and
biggest elimination stage on the education
ladder, in comparison with the state average;
3) The representation of the castes and
communities in the higher education in
comparison with the state average; and
4) The representation of the castes and the
communities in the state services, including
government departments, state undertakings
and universities.
63. The majority judgment approved or rather
'broadly commend (ed) the approach and methodology adopted
by the Justice O. Chinnappa Reddy Commission in this respect.'
(sic). The majority judgment in Indira Sawhney while
observing that there is no such thing as the standard or model
procedure or approach and it is for the authority appointed to
identify & adopt such approach and procedure as it thinks
appropriate, held that, so long as the approach adopted by it is
fair and adequate, the Court has no say in the matter.
64. In the present case, the 17 heads of details which
are to be collected would definitely indicate the social and
educational backwardness of the communities, which is also an
indicator of the financial conditions on which the community
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
exists. Caste has been found to be an important indicator to
understand backwardness since historically the deprivations
visited on communities were based on their caste names. The
constitutional goal we see from the aforesaid discussions is not
intended at effacing caste but aimed at erasing once and for all,
discrimination based on caste. The mere unfortunate
circumstance of birth within one caste cannot lead to a man or
woman being excluded from the privileges and benefits enjoyed
by the other members of society and when it becomes the
accepted normal & the general norm, then there can be no claim
of equality within the society. It is hence, the Constitution
framers felt that Article 15 and 16 which ensures prohibition of
discrimination on grounds inter alia of caste and assures
equality of opportunity in matters of public employment, should
be impelled with a condition to uplift the marginalized sections
of society and bring them at par with the privileged class, who
have equal representation in administration, governance,
educational institutions and every facet of quality social
existence.
65. The caution in Indra Sawhney not to carry out an
individual survey is also pertinently relevant in so far as the
protection provided under Articles 15 & 16, existing not as one
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
for individual protection, but aims only at class protection. The
impecunious circumstances or the educational backwardness of
an individual cannot be rectified by the protections under
Articles 15 & 16. It is hence, the emphasis on un-equals not
being treated equally and those suffering deprivations, as a
group or class, having been conferred with special privileges
and benefits to uplift them and to provide them with a quality of
life at par with any other, opening up the opportunities equally
to them and thus, bringing in dignity of life to every member of
the community, at par with others in the larger society. This is
not to be dismissed as a futile search for the pot of gold, at the
end of a rainbow or a useless pursuit of a mirage; but it is the
path to attainment of an egalitarian society, which is the
Constitutional goal, which every State and its instrumentalities
should endeavor to achieve and realize and so is a duty cast on
the citizens at large.
VOLUNTARY DISCLOSURE & PRIVACY : -
66. It is true that there is nothing stated in the
notification as to the disclosure being voluntary, however, it has
to be noticed that, admittedly, 80% of the survey is over and not
even one instance has come forth where a complaint was raised
of coercion to divulge the details sought for in the survey. The
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
State has also specifically argued that what is attempted is the
collection of details which may not have mathematical precision
but would necessarily provide broad estimates for the State to
formulate schemes. As has been argued, there is no element of
coercion discernible from the various notifications issued or the
guidelines brought out to guide the process of enumeration.
Looking at the 17 heads under which the collection of data is
attempted, it cannot be disputed, that they bring forth the social,
economic and educational situation in which the individual
families exist and the identification of the caste of such families
enable identification of the classes or groups based on caste
identity, which are backward. We again emphasize the caution
expressed by Indra Sawhney that the protection offered under
Article 15 and 16 is to a class/group and not individual oriented.
In collecting the data as provided under the 17 heads, it is also
evident that the occupational groups also could be identified as
per the details collected in the survey.
67. We cannot fault the contention of the State that
one can very well start the process with caste, wherever they are
found, to evolve the criteria for determining backwardness;
which has been accepted by the Constitution Bench decision in
Indra Sawhney. It is very relevant that apart from the State List
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
of Backward Classes and Extremely Backward Classes, there
are 33 castes identified as Scheduled Tribes and 23 as Scheduled
Castes, which are notified by the Government of India for the
State of Bihar. The State List of Backward Classes and
Extremely Backward Classes also includes the various castes;
backwardness being identified on the basis of such castes. The
additions or deletions in these lists have been done on the
recommendation of dedicated Commissions with due process at
different spans of time. The State in its counter affidavit also
speaks of having had discussions with the various Commissions
appointed by the State for the different classes and groups and
the identification of castes or groups were done based on the
recommendations of the respective Commissions; which were
also put through the district administration.
68. It is very evident that the Central Government, as
a matter of policy, decided not to carry out any caste-based
enumeration and as we found, the mere inclusion of Census
under Entry 69 of List I does not preclude the States from
carrying out such exercise, as is presently carried out by the
State of Bihar. We reiterate that the State of Karnataka had also
carried out such a survey, however, through a Commission and
by a legislation which only reinforces the power of the State to
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
carry out such survey for collection of data, to achieve the
constitutional goal of uplifting the downtrodden and the
marginalized. The State has emphasized that there is no detail
sought for from the citizens, the subjects of the survey, akin to
any, found in the Aadhaar decision to be an infringement of
privacy. The various heads under which details are collected are
normally declared by each individual at the time of admission in
a school or for opening of a bank account or also for other
purposes. Regularly, the Backward Classes and Extremely
Backward Classes as also the Scheduled Caste and Scheduled
Tribes declare their caste and economic condition to the
authorities for the purpose of claiming the benefits of welfare
schemes and also taking recourse to the privileges of an
affirmative action.
69. The population of Bihar in 2011 was
approximately 10.40 crores comprised in 1.89 crores
households, while the total number of caste and income
certificates issued from 15.08.2012 till date is 7,29,48,500 and
6,19,69,592 coming to a total of 13,49,18,092. These are the
statistics provided in the counter affidavit of the State. The total
number of certificates issued for the economically weaker
sections from June 2019, under the general category is
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
approximately 10.54 lakhs. The data collected in the SECC,
2011 are also available with the MNRGA Scheme Portal; in
relation to job cards issued in Bihar which alone comes to 16.62
crores. Similarly individual data is recorded in labor registration
portals and collected for the issuance of ration cards as also
enabling implementation of the provisions of the Food Security
Act. The data collected, hence, can always be verified with the
data already available with the Government, which could further
aid the policy determination insofar as the inclusion and
exclusion of caste and communities for welfare schemes, which
is intended at uplifting the downtrodden and marginalized.
70. While looking at the two decisions on privacy,
especially with reference to the specific arguments raised, we
think it appropriate to extract the following paragraphs from
Puttaswamy (1), which have also been extracted in the Aadhaar
decision.
"46. Natural rights are not bestowed by
the State. They inhere in human beings
because they are human. They exist equally
in the individual irrespective of class or
strata, gender or orientation.
318. Life and personal liberty are
inalienable rights. These are rights which are
inseparable from a dignified human
existence. The dignity of the individual,
equality between human beings and the quest
for liberty are the foundational pillars of the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Indian Constitution.
(Hon'ble Justice Dr D.Y.Chandrachud)
521. In the Indian context, a
fundamental right to privacy would cover at
least the following three aspects:
(i) Privacy that involves the person i.e. when
there is some invasion by the State of a
person's rights relatable to his physical body,
such as the right to move freely;
(ii) Informational privacy which does not
deal with a person's body but deals with a
person's mind, and therefore recognises that
an individual may have control over the
dissemination of material that is personal to
him. Unauthorised use of such information
may, therefore lead to infringement of this
right; and
(iii) The privacy of choice, which protects an
individual's autonomy over fundamental
personal choices.
For instance, we can ground physical privacy
or privacy relating to the body in Articles
19(1)(d) and (e) read with Article 21; ground
personal information privacy under Article
21; and the privacy of choice in Articles
19(1)(a) to (c), 20(3), 21 and 25. The
argument based on "privacy" being a vague
and nebulous concept need not, therefore,
detain us.
(Hon'ble Mr. Justice R.F.Nariman,J.)
620. I had earlier adverted to an aspect
of privacy -- the right to control
dissemination of personal information. The
boundaries that people establish from others
in society are not only physical but also
informational. There are different kinds of
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
boundaries in respect to different relations.
Privacy assists in preventing awkward social
situations and reducing social frictions. Most
of the information about individuals can fall
under the phrase "none of your business".
On information being shared voluntarily, the
same may be said to be in confidence and
any breach of confidentiality is a breach of
the trust. This is more so in the professional
relationships such as with doctors and
lawyers which requires an element of candor
in disclosure of information. An individual
has the right to control one's life while
submitting personal data for various
facilities and services. It is but essential that
the individual knows as to what the data is
being used for with the ability to correct and
amend it. The hallmark of freedom in a
democracy is having the autonomy and
control over our lives which becomes
impossible, if important decisions are made
in secret without our awareness or
participation.
(Hon'ble Mr. Justice S.K.Kaul, J)"
71. The Aadhaar decision also succinctly stated the
following features from Puttaswamy (1):
"108. It stands established, with
conclusive determination of the nine-Judge
Bench judgment of this Court in K.S.
Puttaswamy [K.S. Puttaswamy v. Union of
India, (2017) 10 SCC 1] that right to privacy
is a fundamental right. The majority
judgment authored by Dr D.Y. Chandrachud,
J. (on behalf of three other Judges) and five
concurring judgments of other five Judges
have declared, in no uncertain terms and
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
most authoritatively, right to privacy to be a
fundamental right. This judgment also
discusses in detail the scope and ambit of
right to privacy. The relevant passages in this
behalf have been reproduced above while
taking note of the submissions of the learned
counsel for the petitioners as well as
respondents. One interesting phenomenon
that is discerned from the respective
submissions on either side is that both sides
have placed strong reliance on different
passages from this very judgment to support
their respective stances.
109. A close reading of the judgment in
K.S. Puttaswamy [K.S. Puttaswamy v. Union
of India, (2017) 10 SCC 1] brings about the
following features:
109.1. Privacy has always been a
natural right : The correct position in this
behalf has been established by a number of
judgments starting from Gobind v. State of
M.P. [Gobind v. State of M.P., (1975) 2 SCC
148 : 1975 SCC (Cri) 468] Various opinions
conclude that:
109.1.1. Privacy is a concomitant of the
right of the individual to exercise control
over his or her personality.
109.1.2. Privacy is the necessary
condition precedent to the enjoyment of any
of the guarantees in Part III.
109.1.3. The fundamental right to
privacy would cover at least three aspects --
(i) intrusion with an individual's physical
body, (ii) informational privacy, and (iii)
privacy of choice.
109.1.4. One aspect of privacy is the
right to control the dissemination of personal
information. And that every individual should
have a right to be able to control exercise
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
over his/her own life and image as portrayed
in the world and to control commercial use of
his/her identity."
72. Informational privacy is the aspect on which there
was an emphasis by the learned counsel for the petitioners. As is
discernible from the above extracts, there are certain aspects of
personal information, which fall under the phrase 'none of your
business', meaning none other can seek such an information
mandatorily from the citizens; especially not the State which has
the might of its authority, which permeates to every Government
officer. In the present case, we have already found that there is
absolutely no coercion applied, neither is it discernible from any
of the guidelines put forth nor is there a single complaint made
regarding coercion to disclose the details. The data sought from
the subjects of the survey, the citizens within the State of Bihar,
are also details which are available in the public domain, but
still difficult to be extracted. It is for the purpose of identifying
the Backward Classes, Scheduled Castes and Scheduled Tribes
with the aim of uplifting them and ensuring equal opportunities
to them, not only by an affirmative action, but also in providing
employment, ensuring admission to educational institutions as
also representation in local bodies, and formulating schemes and
projects targeted at specific classes or groups, that the instant
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
survey is carried out, is the contention of the State; which
cannot be brushed aside.
73. It has been argued that wherever there is a
declaration sought of personal details like religion, caste and
income, there is a benefit conferred on the citizen. In the caste
survey also, there is a definite privilege sought to be conferred
on the individuals, who are eventually identified to be belonging
to the backward communities, by way of preferential action of
the State targeted at the specified class/group. Though the caste
survey and collection of data would not by itself confer any
benefit on the citizen, the statistics which are collated could be
placed before the various statutory Commissions, which would
result in recommendations, definitely inuring to the benefit of
the individuals in the identified classes/groups when schemes
and projects are formulated for their upliftment. We cannot, but
reiterate with emphasis that there can be no coercion found and
there is no complaint of such a coercion having been applied by
the Government officers in getting the details from the citizens;
especially when 80% of the work of collecting data is said to be
over. We have also seen the survey of the National Health
Mission which also seek the specific details as sought for in the
instant survey.
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
74. Learned counsel for the petitioners had
emphasized on the option insofar as the details of Aadhaar is
concerned, which is specified in the format of survey to be
optional. We cannot find such a mandatory pressure applied on
the subjects of survey merely for reason of the Aadhaar details
being made optional and specified so in the format of survey;
which definitely is to ensure that there is no violation of the
principles of right to privacy, as laid down by the Hon'ble
Supreme Court. In this context, we also have to notice the
following paragraphs from Puttaswamy(1):
"310.While it intervenes to protect
legitimate State interests, the State must
nevertheless put into place a robust regime
that ensures the fulfilment of a threefold
requirement. These three requirements apply
to all restraints on privacy (not just
informational privacy). They emanate from
the procedural and content-based mandate of
Article 21. The first requirement that there
must be a law in existence to justify an
encroachment on privacy is an express
requirement of Article 21. For, no person can
be deprived of his life or personal liberty
except in accordance with the procedure
established by law. The existence of law is an
essential requirement. Second, the
requirement of a need, in terms of a
legitimate State aim, ensures that the nature
and content of the law which imposes the
restriction falls within the zone of
reasonableness mandated by Article 14,
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
which is a guarantee against arbitrary State
action. The pursuit of a legitimate State aim
ensures that the law does not suffer from
manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment. Judicial
review does not reappreciate or second guess
the value judgment of the legislature but is
for deciding whether the aim which is sought
to be pursued suffers from palpable or
manifest arbitrariness. The third requirement
ensures that the means which are adopted by
the legislature are proportional to the object
and needs sought to be fulfilled by the law.
Proportionality is an essential facet of the
guarantee against arbitrary State action
because it ensures that the nature and quality
of the encroachment on the right is not
disproportionate to the purpose of the law.
Hence, the threefold requirement for a valid
law arises out of the mutual interdependence
between the fundamental guarantees against
arbitrariness on the one hand and the
protection of life and personal liberty, on the
other. The right to privacy, which is an
intrinsic part of the right to life and liberty,
and the freedoms embodied in Part III is
subject to the same restraints which apply to
those freedoms.
311. Apart from national security, the
State may have justifiable reasons for the
collection and storage of data. In a social
welfare State, the Government embarks upon
programmes which provide benefits to
impoverished and marginalised sections of
society. There is a vital State interest in
ensuring that scarce public resources are not
dissipated by the diversion of resources to
persons who do not qualify as recipients.
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
Allocation of resources for human
development is coupled with a legitimate
concern that the utilisation of resources
should not be siphoned away for extraneous
purposes. Data mining with the object of
ensuring that resources are properly
deployed to legitimate beneficiaries is a valid
ground for the State to insist on the collection
of authentic data. But, the data which the
State has collected has to be utilised for
legitimate purposes of the State and ought
not to be utilised unauthorisedly for
extraneous purposes. This will ensure that
the legitimate concerns of the State are duly
safeguarded while, at the same time,
protecting privacy concerns. Prevention and
investigation of crime and protection of the
revenue are among the legitimate aims of the
State. Digital platforms are a vital tool of
ensuring good governance in a social welfare
State. Information technology--legitimately
deployed is a powerful enabler in the spread
of innovation and knowledge.
(Hon'ble Justice Dr
D.Y.Chandrachud,J)
377. It goes without saying that no legal
right can be absolute. Every right has
limitations. This aspect of the matter is
conceded at the Bar. Therefore, even a
fundamental right to privacy has limitations.
The limitations are to be identified on case-
to-case basis depending upon the nature of
the privacy interest claimed. There are
different standards of review to test
infractions of fundamental rights. While the
concept of reasonableness overarches Part
III, it operates differently across Articles
(even if only slightly differently across some
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
of them). Having emphatically interpreted
the Constitution's liberty guarantee to
contain a fundamental right to privacy, it is
necessary for me to outline the manner in
which such a right to privacy can be limited.
I only do this to indicate the direction of the
debate as the nature of limitation is not at
issue here.
378. To begin with, the options canvassed
for limiting the right to privacy include an
Article 14 type reasonableness enquiry [ A
challenge under Article 14 can be made if
there is an unreasonable classification
and/or if the impugned measure is arbitrary.
The classification is unreasonable if there is
no intelligible differentia justifying the
classification and if the classification has no
rational nexus with the objective sought to be
achieved. Arbitrariness, which was first
explained at para 85 of E.P. Royappa v. State
of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S)
165, is very simply the lack of any
reasoning.] ; limitation as per the express
provisions of Article 19; a just, fair and
reasonable basis (that is, substantive due
process) for limitation per Article 21; and
finally, a just, fair and reasonable standard
per Article 21 plus the amorphous standard
of "compelling State interest". The last of
these four options is the highest standard of
scrutiny [ A tiered level of scrutiny was
indicated in what came to be known as the
most famous footnote in constitutional law,
that is, fn 4 in United States v. Carolene
Products Co., 1938 SCC OnLine US SC 93 :
82 L Ed 1234 : 304 US 144 (1938).
Depending on the graveness of the right at
stake, the court adopts a correspondingly
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
rigorous standard of scrutiny.] that a court
can adopt. It is from this menu that a
standard of review for limiting the right to
privacy needs to be chosen.
(Hon'ble Mr. Justice Chelameswar,J.)"
75. The three requirements, as noticed in paragraph
310, extracted hereinabove, are fully satisfied in the present
case. The Executive Government had decided to initiate a
survey to collect personal details of the natives of the State of
Bihar for the purpose of initiating and implementing
developmental activities to uplift the backward classes, as is
seen from the Governor's speech to the two Houses. The State
Government has also brought out a notification which is
published in the official gazette, which is a law, being an
exercise under Article 162 of the Constitution of India,
especially when there is no law on the subject made by the
Parliament to which the present exercise can be said to be
repugnant. As far as the third requirement, to satisfy the test of
proportionality, we have to only refer to paragraph 311, as
extracted hereinabove. We cannot, but reiterate with utmost
respect, the aspect of allocation of resources for human
development, coupled with a legitimate concern for utilization
of resources, ensuring that it is not siphoned away for
extraneous purpose; which requires data mining, is the attempt
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
of the State by the instant survey.
76. The test as has been laid down in paragraph 378
extracted hereinabove, of the compelling State interest or rather
the interest of the citizens/subjects; especially those who are
downtrodden and marginalized; termed the highest standard of
scrutiny, according to us, stands satisfied. As has been held in
paragraph-380 of Puttaswamy(1), it varies from case to case as
to when and in what types of privacy claims, this standard
should be applied. The standard of compelling State interest, as
has been held in paragraph 380, depends upon the context of
concrete cases.
77. We reiterate at the risk of repetition, that the test
stands fully satisfied in the present case. In the Aadhaar
decision it was held that going by the majority in
Puttaswamy(1), 'legitimate State interest' can be taken as a
permissible restriction on a claim to privacy of an individual
instead of applying the test of 'compelling State interest'. We
also extract paragraph 157 of Aadhaar:-
"157. In Modern Dental College &
Research Centre [Modern Dental College &
Research Centre v. State of M.P., (2016) 7
SCC 353 : 7 SCEC 1] , four sub-components
of proportionality which need to be satisfied
were taken note of. These are:
(a) A measure restricting a right
must have a legitimate goal (legitimate
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
goal stage).
(b) It must be a suitable means of
furthering this goal (suitability or
rational connection stage).
(c) There must not be any less
restrictive but equally effective
alternative (necessity stage).
(d) The measure must not have a
disproportionate impact on the right-
holder (balancing stage)."
78. We have already held these tests to be satisfied to
the hilt.
79. We have to notice that there are concerns raised by
the petitioners insofar as the head of the family being asked to
disclose the details of others, the caste of the mother not being
recorded in any context and there being no option to refuse to
declare the caste status; though the same is available insofar the
religion is concerned. We have to emphasize the contention
raised by the State that a mathematical precision is not
warranted in identification of backward status or occupational
classes or groups and caste is the best denominator available as
of now; which is recognized also in Indra Sawhney, a
Constitution Bench. It cannot, but be observed that caste is a
matter of descent while religion is a matter of belief. India has
many instances of persons belonging to the same caste
practicing different religions and despite the religions other than
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
the Hindu religion, not practicing caste system as such; those
converted groups, in the other communities also are conferred
with backward status and enabled privileges and benefits by the
State. The details sought for in the survey are not individual
centric and is not aimed at targeting an individual, which in the
context of the details collected from the head of the family; is
virtually impossible, as the law exists today.
80. As we discern, the disclosures are voluntary and it
has a definite aim of bringing forth development schemes for
the identified backward classes/groups. The caste status sought
to be collated is not intended at taxing, branding, labeling or
ostracizing individuals or groups; but it is to identify the
economic, educational and other social aspects of different
communities/classes/groups, which require further action by the
State for its upliftment.
SECURITY CONCERNS :-
81. The counter affidavit of the State goes on to
demonstrate that the Caste Based Survey has a full proof
mechanism and there are no chances of any kind of leakage of
the data. The survey operation has taken into account the
following measures:
a. Provision and arrangement has been made to
ensure the confidentiality and security of the
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
data.
b. Enumerators and supervisors have been
instructed and trained not to share or show
the data with any unrelated individual/third
party.
c. Provision has also been made in the software
so that no one can take the screenshot of the
mobile app.
d. Device binding has been done so that each
enumerator or supervisor can work with only
one mobile during the whole process.
e. Data cannot be downloaded from the mobile
device.
f. Data of any person cannot be downloaded
from the system. It is encrypted data and can
be read only on the data base made for it.
g. Data are being stored in servers of the State
Data Census of the Government of Bihar and
not on any other server or on the cloud so
therefore, no unauthorized person except, the
Data Based Administrator can access the
data.
h. The Role Based Access Control (RBAC)
System is working with OTP verification to
ensure the entry of only authorized users.
i. Encrypted password storage and secure
coding practices are in use of security of the
data.
82. In addition to these is the letter produced as
Annexure-B from the Officer on Special Duty to the Secretary
of the General Administration Department, the translation of
which reads as under:
"Subject:-With regard to making available facilities
of Web Portal Hosting, SMS and E-Mail
at the State Center under Bihar Caste
Based Census - 2022.
Ref. - Your letter no. 272/23 dated 12.01.2023
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
and letter no. 2016/2023 dated
26.04.2023 of Beltron.
Sir,
In the light of your letter on the aforesaid
subject under reference regarding declaration of
secured I.T Infrastructure to those basic
infrastructure under the I.T. Act where the data of
caste based census have been stored at the data
center of Beltron and the relevant storage, it has
been declared vide letter no. 2016/2023 dated
26.04.2023 of Beltron that application and data
hosting related with caste based census for State
Data Center is a secured I.T. Infrastructure in
accordance with the provisions of Information
Technology Act 2000 (as amended) and the
Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal
Data or Information) Rules 2011."
83. The security aspect argued by the petitioners are
hence taken care of and that does not invalidate the survey.
84. On the above reasoning we find the action of the
State to be perfectly valid, initiated with due competence, with
the legitimate aim of providing 'Development with Justice'; as
proclaimed in the address to both Houses and the actual survey
to have neither exercised nor contemplated any coercion to
divulge the details and having passed the test of proportionality,
thus not having violated the rights of privacy of the individual
especially since it is in furtherance of a 'compelling public
interest' which in effect is the 'legitimate State interest'.
85. We dismiss the writ petitions, leaving the parties
Patna High Court CWJC No.5542 of 2023 dt.01-08-2023
to suffer their respective costs.
(K. Vinod Chandran, CJ)
Partha Sarthy, J: I agree.
(Partha Sarthy, J)
Sujit/PKP
AFR/NAFR AFR
CAV DATE 07.07.2023
Uploading Date 01.08.2023
Transmission Date
