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Supreme Court Judge Sanjay Karol Recuses From Hearing Bihar Caste Census Matter

Justice Sanjay Karol, who was with the Patna high court, said before recusing that he was involved in some of the earlier litigation on this matter. The CJI will decide which bench will hear the appeal of the Bihar state government against the stay on the caste census by the Patna high court.
Justice Sanjay Karol, with the Supreme Court in the background. Illustration: The Wire

New Delhi: Supreme Court Justice Sanjay Karol on Wednesday, May 17, recused himself from hearing a plea filed by the Nitish Kumar-led Bihar government challenging a controversial Patna high court order which stayed the caste survey that began in January.

According to the news agency PTI, Justice Karol was the chief justice of the Patna high court before his elevation to the Supreme Court in February this year. He said he was party to some of the related litigations which were earlier heard while he was in the state high court.

The Supreme Court bench, which also included Justice B.R. Gavai, then proceeded to recommend that the issue now be handled by the Chief Justice of India (CJI) D.Y. Chandrachud for the constitution of a fresh bench.

The Bihar government in its appeal has said that the stay will adversely affect the caste survey. Nitish Kumar and Tejashwi Yadav’s government has argued that the collection of caste-based data is a constitutional mandate under Articles 15 and 16, which say that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, and that there shall be equal opportunity for all citizens in matters relating to employment or appointment to any office under the State.

“The state has already completed more than 80 per cent of the survey work in some districts and less than 10% of the work is pending. The entire machinery is working at ground level. There shall be no harm in completing the exercise subject to final adjudication of the dispute.”

“The time gap to complete the survey would adversely affect the survey since this would not be contemporaneous data. The stay of collection of data itself would cause a huge loss to the state since, if finally the action of the state is upheld, the state would be required to put logistics in place with additional expenditure and burden on public exchequer,” PTI cites the plea as articulating.

On May 4, the Patna high court directed the state government to immediately stop the caste-based survey and ensure that the data already collected is not shared with anybody until final orders are passed.

The high court has scheduled the next date of hearing on July 3.

“Prima facie, we are of the opinion that the state has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament,” the high court had said.

Expressing concern, the court noted the government’s intention was to share data from the survey with leaders of different parties in the state assembly. There definitely arises the larger question of the right to privacy, which the Supreme Court has held to be a facet of the right to life, it had said.

“The state cannot attempt to carry out a caste census in the garb of a survey, especially when the state has absolutely no legislative competence and, in that circumstance, neither can an executive order be sustained under Article 162 of the Constitution of India,” the Patna high court had said.

“The essential difference between a ‘census’ and ‘survey’ is that the former contemplates collection of accurate facts and verifiable details, while a survey is intended at collection and analysis of opinions and perceptions of the general public which may be aimed at a specific community or group of people or the extended community of a polity,” it said.

The first round of the caste survey in Bihar was conducted in January between January 7 and 21. The second round started on April 15 and was supposed to continue for a month. Bar and Bench reports that the survey was put on hold by the high court until July 3 and the court made it clear that “the stay is not on the census itself but on further data collection as well as sharing of information with political parties.”

The caste census was last conducted all-India in 1931 and independent India counts castes but only Scheduled Castes and enumerates its citizens by religion every decade.

However, growing demands for a caste census led to a Socio-Economic Caste Census (SECC) in 2011, which was conducted after the Census. Its results were ready but by then, the BJP-led government had taken office and refused to disclose the results. It has argued that the results are too complex to disclose accurately.

Votaries of the caste census say that there is hesitation as the real numbers would make the power and representation skew very obvious and generate anger amongst the backward caste groups.

Political parties opposed to the BJP have made the caste census an important tool in their armoury to take on the BJP and in Bihar, even the state BJP unit has been forced to go along.

Odisha too has started a caste survey and recently, the Congress party, starting with Rahul Gandhi’s election rally speech last month in Karnataka’s Kolar, has underlined its support for the caste census to be held. Gandhi, at public rallies, called for caste numbers to be counted and made public, enabling a proportionate share of power to all castes.

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