Bihar Caste Survey| Your Caste Is Known To Your Neighbours: Apex Court On Violation Of Privacy Argument

The Supreme Court on Friday, while dealing with a batch of Special Leave Petitions challenging the judgment of the Patna High Court upholding the State’s caste-based survey, alleging it to be in violation of the right to privacy, asked how disclosing caste could impinge privacy, when even the neighbours know one's cast.

Justice Sanjiv Khanna remarked, "Your caste is known to your neighbors...in Bihar, unfortunately it is true. Delhi we don't know, I will be really frank". The bench also comprised Justice S.V.N. Bhatti.

It is pertinent to note that the Patna High Court had upheld the Bihar caste-based survey for being ‘perfectly valid in furtherance of a compelling public interest’. The survey was challenged before the High Court while placing reliance on the judgment in the matter of K.S. Puttaswamy II (Aadhaar) v. Union of India, on the ground that it infringes fundamental rights by reason of infringement of privacy, stating that despite attempts to efface it from the social fabric, caste remains a reality and refuses to be swept aside, wished away or brushed aside nor does it wither away and disperse into thin air.

Senior Advocate C.S. Vaidyanathan appeared for the petitioner and Senior Advocate Shyam Divan appeared for the respondents.

In the batch of two petitions, one also sought a stay on publication of data.

Justice Khanna at the outset, while addressing the fact that the survey has been completed, said, "We have gone through the judgment, we know what the legal issues are, it is not so simple...we are not going to stay anything without prima facie being convinced that it requires (consideration). There is a judgment in their favour, the exercise is complete. Obviously, the data whether you like or not will be made available to everybody".

In the arguments, Vaidyanathan appearing for the NGO, Ek Soch Ek Prayas essentially argued that right to privacy could have only been impinged through a just, fair and reasonable law which could stand the test of proportionality with a legitimate expectation and with an executive aim. Therefore, an executive order is not sufficient. He further argued that the High Court summarily rejected the argument without even consideration.

He also submitted that an executive order should speak for itself and not depend on extraneous material, and that law should be a statutory law and not an executive order.

However, Justice Sanjiv Khanna while rejecting the contention, said, "This is not a quasi judicial order, it is rather an administrative decision...the reasons are not to be communicated and given to the public".

"What way is your right to privacy affected? What is released is the cumulative figures", asked Justice Khanna.

"How can anybody be compelled to disclose religion, gender, caste barbarous items...monthly income. Only thing that is voluntary is Aadhar, everything else is mandatory", argued Vaidyanathan.

"There is no penalty, if you don't fill it up", said Justice Khanna.

"No but everybody is being asked. The question is, can somebody be asked to give these details without a law?", Vaidyanathan said in response.

For the background, a bench of Chief Justice K Vinod Chandran and Justice Partha Sarthy in a 101 page judgment observed, “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”.

The bench also noted that the counter affidavit demonstrated that the Caste Based Survey has a fool-proof mechanism and there are no chances of any kind of leakage of the data.

“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”, the judgment further read.

The first round of caste survey in Bihar was conducted between January 7 and 21. The second round started on April 15 and was supposed to continue till May 15.

It is pertinent to note while hearing a clutch of petitions, the high court earlier had directed the state government to immediately stop the caste-based survey, and ensure that the data already collected are secured and not shared with anybody till final orders are passed.

The Court had observed, "Prima facie, we are of the opinion that the state has no power to carry out a caste-upon the legislative power of the Union Parliament”.

Accordingly, the bench has now listed the matter for further hearing on August 25, 2023.

Cause Title: Ek Soch Ek Paryas V Union Of India And Ors.