ORDER

“The Invisible arm that turns the gears in nearly every system…” is how caste was exasperatingly described by Yashica Dutt in her book ‘Coming out as Dalit’. The petitioners in CWJC No. 5542 of 2023, a collective of the young and the aged; students, teachers and professionals, concerned with populist measures harming the social fabric of the country, have filed the writ petition in public interest against the caste census attempted by the State of Bihar.

2. We heard the above writ petition along with CWJC No. 4624 of 2023 and CWJC No. 6506 of 2023, specifically on directions of the Hon’ble Supreme Court to consider and dispose of the interim application filed.

3. Sri Abhinav Srivastava, learned counsel for the petitioner in CWJC No.5542 of 2023 attacked the so-called survey initiated by the Government, blatantly styled as a caste survey to be a census in form and content. At the outset, it is pointed out that the authority to carry out a census is with the Central Government under Entry 69 of List I of the Seventh Schedule to the Constitution of India. 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. Census though not defined in the Act, the common parlance definition is put forth before us from generic sources, to argue that it is quite distinguishable from a survey as commonly defined. A census while defined as a process of officially counting something, especially a country’s population and recording the facts relating to the individuals comprising the polity; a survey is an investigation into the opinions and behavior patterns of a particular group of people. In a survey the opinions are elicited by asking prepared questions, for multifarious purpose, like deciding the marketing strategy in a purely commercial venture or the shape the welfare schemes should take, a governmental function. Hence, when a survey is carried out, there is a specific objective, which is totally absent in the present exercise which again raises the question of whether the present survey carried on as a caste based one, is in effect a Census; especially when in reality it is an attempt to elicit the caste status of the individuals native to the State. It is pointed out that the last Census was carried out in the year 1931, before independence and there were identified 74 (seventy-four) categories of castes within the State of Bihar which has now risen to 215 (two hundred and fifteen) even as per the Government’s showing as displayed from the castes identified for the purpose of the survey. It is argued that there is no legislative power to carry out such a survey which in effect is a Census and there is also no disclosed object for carrying out such a survey.

4. Answering the contention of the State, that there is no compulsion on any individual to disclose their personal details, it is pointed out from the guidelines issued to the hierarchical officers that, the details are to be collected from the eldest family member and in the case of caste status it could even be from the relatives or neighbors which militates against the claim of voluntary disclosure. From the guidelines it is pointed out that in the case of a woman, in the event of non-disclosure of caste of the father of her child, the officers are directed to ensure such disclosure in the presence of another person, which deprives the woman of the right to not disclose the details and further degrades her on account of her gender alone. In effect, it turns out to be a compulsory disclosure which is in violation of the right to privacy of an individual which is held to be an intrinsic part of Article 21 of the Constitution of India by the Hon’ble Supreme Court in the case of K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1. It is pointed out that positive discrimination on th