New Delhi: The controversy over Bihar’s caste survey has reached the Supreme Court, with the Bihar government defending the exercise, but the Modi government opposing it on the grounds that only the Centre is empowered to carry out the process.
This debate has been going on for a while now. The first round of the survey was conducted between 7 and 21 January, but the second round, which was to extend from 15 April-15 May, was stayed by the Patna High Court on 4 May.
In an interim order, the court had at the time observed that prima facie, the state did not have the authority to carry out a caste-based survey since it would function as a census, thus “impinging” upon the legislative power of Parliament.
On 1 August, however, things started looking up for Bihar’s Nitish Kumar government, when the Patna High Court upheld the caste survey, observing that the exercise was “perfectly valid, initiated with due competence, with the legitimate aim of providing ‘development with justice’”.
Subsequently, a batch of petitions was filed in the Supreme Court, challenging the Patna High Court’s decision. Monday, the Modi government expressed its objections to the Bihar government’s caste survey in the court, asserting that a census is a statutory process under a central legislation and that the law empowers only the central government to conduct it.
To counter this argument, the Bihar government has so far relied on a central law, the Collection of Statistics Act, 2008, claiming that it authorises the state government to carry out all kinds of censuses and surveys, including for caste.
So, what does this law say, and how did it factor into the Patna High Court judgment? ThePrint explains.
Also Read: Modi govt opposes Bihar caste survey, says only Centre empowered to carry out statutory process
What does the law say?
‘Census’ is included as a subject under Entry 69 in List I (Union List) under the Seventh Schedule of the Constitution, which deals with the division of law-making powers between the Centre and the states. Entry 94 in this list, meanwhile, includes ‘inquiries, surveys and statistics’.
List I, or the Union List, contains entries over which Parliament has jurisdiction. On the other hand, List II, or the State List, has subjects over which the state legislature has jurisdiction. List III, or the Concurrent List, has subjects over which both Parliament and state legislatures have law-making powers, but the central law prevails in case of a conflict.
This framework is key to understanding the Collection of Statistics Act 2008, a central law to facilitate the collection of statistics on economic, demographic, social, scientific, and environmental aspects.
Section 3 of this law allows the “appropriate government” to issue a notification directing that statistics on economic, demographic, social, scientific, and environmental aspects shall be collected through a statistical survey.
Here, the “appropriate government” has been defined as any ministry or department in the central government, state government, or Union territory administration. It also includes local governments, including panchayats and municipalities.
However, Section 3 adds three ‘provisos’ or riders.
Section 3(a) prohibits state governments, union territory administrations, or local governments from giving directions related to collecting statistics on matters listed in List I of the Seventh Schedule to the Constitution.
Section 3(b) says that if the Centre has issued a directive for collecting any sort of statistics, state governments, Union territory administrations, or local governments cannot issue similar directives without central government approval until the central government completes its collection of statistics.
Finally, Section 3(c) says that where a state government, Union territory administration, or any local government has issued a direction for the collection of any kind of statistics, the central government cannot issue any similar direction, for as long as the collection of such statistics by the state government remains pending. The central government can only issue such a directive when statistics need to be collected with reference to two or more states or Union territories.
What did the HC say?
The Bihar government had previously cited the 2008 Act in front of the Patna High Court. It argued that Section 3(a) of the Act only restricts matters falling under the entries listed in List I of the Seventh Schedule to the Constitution.
It also highlighted that Section 3(c) limits the central government from issuing directives for collecting statistics if the state government or Union territories are already collecting them based on prior directives from those governments.
In its decision, the Patna High Court drew upon two constitutional provisions, among other things, to reject the argument that only Parliament had the competence to conduct a census.
These were Article 15, which prohibits discrimination based on religion, race, caste, sex, or place of birth, and Article 16, which guarantees equality of opportunity in matters related to public employment.
The court reasoned that if state legislatures and local bodies are allowed to take affirmative action under these Constitutional provisions, say for providing reservations, it follows that this exercise would include the identification of socially and educationally backward classes under Article 15 and backward classes under Article 16.
The Patna High Court also examined the definition of “statistical survey” as outlined in Section 2(g) of the 2008 Act.
This section says that a statistical “census or survey” involves the collection of information “by an appropriate government under this Act or any other relevant Act, wholly or primarily for the purposes of processing and summarising by appropriate statistical procedures”.
The high court pointed out that the 2008 Act uses the terms ‘census’ and ‘survey’ interchangeably with reference to appropriate governments, including of the Union and states.
Consequently, the court asserted that the inclusion of ‘census’ under Entry 69 of List I in the Seventh Schedule “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.”
The court further said that the reason for Entry 69 in List I was that a “PAN- (Presence Across the Nation)-India census can only be carried out by the Central Government”.
Two valid procedures: HC
The Patna High Court did point out a possible oversight from the Bihar government. It noted that the Collection of Statistics Rules 2011 — issued under the 2008 Act — says that a notification under Section 3 of the Act for the collection of statistics should contain the subject and purpose of the exercise. The Bihar government’s notification did not contain any of these specifics.
However, since the court had already found the state government competent to carry out such a survey under various Constitutional provisions, including its duty to carry out affirmative action under Articles 15 and 16, it did not delve into the source of power from the Collection of Statistics Act.
It did, however, clarify that the state government could have proceeded under the 2008 Act too, under Section 3(c).
“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,” the court said.
What is Modi govt claiming?
In an affidavit filed Monday by the Registrar General of India (RGI) Ministry of Home Affairs said that “no other body under the Constitution or otherwise is entitled to conduct the exercise of either census or any action akin to census”.
However, in the evening, the RGI office filed a fresh affidavit, retracting this contention and claiming that this submission had crept in inadvertently.
The second affidavit affirmed that a census is governed by the Census Act, 1948, and is hence a statutory process. It submitted that the subject of census is covered in the Union List under Entry 69 of the Seventh Schedule. It, therefore, asserted that under this Entry, only the central government is empowered to conduct a census.
Before the high court as well, the petitioners had argued that carrying out a census comes under the exclusive fiat of the central government, under the Census Act.
However, the high court had rejected this argument, saying that even the Census Act does not stop the state government from going ahead with such a survey, as long as it does not violate the conditions under Sections 3(b) and 3(c).
“We notice the Collection of Statistics Act only to emphasise 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,” the court explained.
(Edited by Asavari Singh)
Also Read: No caste without code—Bihar is counting and writing a new identity politics