Centre withdraws affidavit in SC opposing Bihar caste-based census

NEW DELHI: The Union government has withdrawn its affidavit filed earlier on Monday before the Supreme Court which had said that “no other body under the Constitution or otherwise is entitled to conduct a census or any exercise akin to a census”.

In a second affidavit filed Monday evening, the Centre said that the above paragraph had “inadvertently crept in”.

“It is submitted that the Central government has filed an affidavit in the morning today…….(where), inadvertently, para 5 has crept in. The said affidavit, therefore, stands withdrawn, and this present affidavit will be the affidavit on behalf of the Central Government”, the latest affidavit stated.

A short affidavit had been filed by the Office of the Registrar General in the Union Home Ministry in response to the batch of pleas challenging the caste-based survey in Bihar, placing the constitutional and legal position for consideration of the top court.

The reply document, however, maintained that the subject of census is covered in the Union List under Entry 69 in the Seventh Schedule of the Constitution and the Census Act, 1948 “empowers only the Central Government to conduct the census”.

Section 3 of the Census Act states:- The Central Government may, by notification in the Official Gazette, declare its intention of taking a census in the whole or any part of the territories to which this Act extends, whenever it may consider it necessary or desirable so to do, and thereupon the census shall be taken.

It reiterated that the Central Government is committed to take all affirmative actions for upliftment of SCs/STs/SEBCs and OBCs in accordance with the provisions of the Constitution and other applicable laws.

On August 21, the top court had told the petitioners challenging the Patna High Court order giving the go-ahead to the Bihar government for a caste survey that it would not stay the exercise unless they made out a prima facie case against it. It had allowed Solicitor General Tushar Mehta, representing the Centre, to file its response on the issue within seven days after he said the survey could have some consequences.

Mehta had submitted, “We are not this way or that way. But this exercise may have some consequences and hence we would like to file our reply.”

A bench of justices Sanjiv Khanna and SVN Bhatti, which is hearing a batch of pleas filed by various NGOs and individuals challenging the August 1 verdict of the high court, had adjourned the proceedings at Mehta’s request.

On August 18, the top court asked what was the harm if a person provided the details of caste or sub-caste during a caste survey when an individual’s data was not going to be published by the state.

Earlier, senior advocate CS Vaidyanathan, appearing for NGO ‘Youth for Equality’ which is challenging the survey, had submitted that the exercise was an infringement of people’s right to privacy.

The Bihar government had said the caste survey was completed on August 6 and the data gathered was uploaded by August 12. The data, which has been collected during the survey, has been uploaded on the BIJAGA (Bihar Jaati Adharit Ganana) app. It said the data could be accessed only by government departments.

On August 7, the top court refused to stay the Patna High Court’s order giving the go-ahead for the caste survey.

Besides the pleas filed by NGOs ‘Youth for Equality’ and ‘Ek Soch Ek Paryas’, another petition has been filed by Nalanda resident Akhilesh Kumar who has contended that the notification issued by the state government for the exercise is against the constitutional mandate. There are some other petitions also.

Kumar’s petition says in terms of the constitutional mandate, only the Union government alone is empowered to conduct a census.

The plea, filed through advocate Barun Kumar Sinha, said the entire exercise of conducting a “census” by the Bihar government is without authority and legislative competence, and reeks of malafide.

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