Why is Bihar’s caste-based survey facing legal challenges?

General Studies Paper 2

Context

• The Supreme Court is set to hear on August 18, petitions challenging the Patna High Court (HC)’s verdict upholding the Bihar government’s ongoing caste survey.

Caste-based survey

• The year, the State government launched a two-phase caste survey in Bihar, stating that detailed information on socio-economic conditions would help create better government policies for disadvantaged groups.
• The survey is estimated to collect the socio-economic data for a population of 12.70 crore in the 38 districts of Bihar.
• The first phase of the survey, which involved a house listing exercise, was carried out and in the middle of the second phase, the survey was halted due to a stay order from the HC.
• However, a recent HC verdict dismissed all petitions opposing the move, and the government on August 2 resumed work on the second phase of the survey. In the second phase, data related to castes, sub-castes, and religions of all people is to be collected.
• The final survey report can be expected in September, less than a year before the 2024 election.

Need for a caste-based census

• The Census conducted at the beginning of every decade does not record any caste data other than for those listed as Scheduled Castes (SCs).
• In the absence of such a census, there is no proper estimate for the population of OBCs, various groups within the OBCs, and others.
• Despite this ambiguity, the Union government has categorically ruled out conducting a socio-economic caste census, saying it is unfeasible, ‘administratively difficult and cumbersome.’
• Responding to a writ petition filed by the State of Maharashtra, the Centre in its affidavit said that excluding any castes other than the SCs and Scheduled Tribes was a ‘conscious policy decision’ adopted since the 1951 Census, and that there was a policy of ‘official discouragement of caste’.
• The Union government in 2011 had undertaken a survey of castes through the Socio-Economic and Caste Census of 2011. However, the collected raw data of nearly 130 crore Indians was never made public due to flaws in the data.
• On August 13, 1990, the V.P. Singh government announced the decision to implement the Mandal Commission report, which recommended a 27%reservation for Other Backward Classes (OBC).
• In 1992, with the Supreme Court ruling in Indra Sawhney & Others versus Union of India (1992) that caste was an acceptable indicator of backwardness, the recommendations of the Mandal Commission were finally implemented. The Mandal Commission estimated the OBC population at 52%.
• However, it is debatable whether the estimate holds true today. Opposition parties, have continued to demand a caste census saying that such an exercise is necessary to streamline welfare policies.

The challenge

• The petitions in the Supreme Court contend that the survey is unconstitutional since only the Centre is exclusively authorised to conduct a census under the Constitution.
• They also point out that the State Government does not have any independent power to appoint District Magistrates and local authorities for collating data, without a notification under Section 3 of the Census Act, 1948 by the Centre.
• The HC verdict has also been assailed on the ground that it violates the Puttaswamy judgment as it permits the collection of personal data by the State under an executive order.

Conclusion

• India runs the world’s largest affirmative welfare programme based on caste identity.
• Reservation in educational institutes and government jobs are provided on the basis of caste identities. The absence of fresh caste census data means that the caste estimates of 1931 are being projected for formulating welfare policies in 2021.