2023 Supreme(Pat) 311

IN THE HIGH COURT OF JUDICATURE AT PATNA
K. VINOD CHANDRAN, CJ and PARTHA SARTHY, J.
CWJC Nos.5542, 4624, 4650, 5749, 6506, 7297 of 2023
(1.8.2023)
Youth For Equality, P-21 & Ors. (in 5542)
Sh. Akhilesh Kumar (in 4624)
Ek Soch Ek Prayas (in 4650)
Shri. Suresh Kumar Bharadwaj & Ors. (in 5749)
Ms. Muskan Kumari (in 6506)
Ankit Roushan (in 7297)
vs.
State of Bihar & Ors. ... Respondents
(in all)
Union of India (in 4650) ... Respondent

Headnote:

Constitution of India – Articles 15, 16 and 246 read with Entry 69 of List-1, Seventh Schedule – Collection of Statistics Act, 2008 – Sections 3 and 32 – Caste Survey in Bihar – When affirmative action can be provided by various entities coming under definition of State, Government can adopt such measures for better understanding living conditions, social, economic and educational status of various communities, existing within its boundaries – For State Governments to take up cause of backward communities, as a welfare State is wont to do, there should be collection of empirical data on which would be based affirmative actions and various schemes and projects to uplift marginalized masses and bring them to mainstream – State Governments cannot wait on their haunches for Central Government to carry out census and provide it with details so as to ensure affirmative action within State, in its services under Article 16(1) & (4) and for its downtrodden under Article 15(1) & (4) – Article 246 which is source of all legislations has to be read with Articles 15 & 16 – Collection of statistics to further economic and social planning and ensure social security and insurance is within premise of State – When such action is taken by way of legislation or by executive fiat, permissible under Article 162 of Constitution, conferring privileges or favours on any particular community found to be backward or attempting to bringing in such schemes or welfare measures, that cannot be faulted. (Paras 35 to 38)

Caste Survey in Bihar – While State has power to bring in affirmative action, it also has a corresponding duty to satisfy itself that benefit conferred by such affirmative action satisfies relevant criteria – Such satisfaction should be objective and not subjective – Survey which is now initiated by Government is within its competence since any affirmative action under Article 16 or beneficial legislation or scheme under Article 15 can be designed and implemented only after collection of relevant data regarding social, economic and educational situation in which various groups or communities in State live in and exist. (Para 38)

Constitution of India – Articles 243D and 243T – Bihar State Commission for Backward Classes Act, 1993 – Reservations in local bodies as well as in position of Chairpersons, in favour of backward class citizens, does not explicitly provide any guidance regarding quantum of reservation and in absence of such explicit quantum only presumption is that such reservation should be guided by standard of proportionate representation for which necessarily there should be collection of empirical data as to quantum of population and percentage of backward classes within such population – Reservation benefits contemplated by Articles 15(4) and 16(4) cannot be mechanically applied in context of reservations enabled by Articles 243D and 243T – If State machinery is put to use for collecting empirical data, appointment of a Commission or power to such appointment of Commissions cannot deprive State from carrying out a survey for collecting empirical data aimed at identifying backwardness to further cause of backward communities including Scheduled Castes and Scheduled Tribes – Mere possibility of abuse for political ends cannot result in Court interfering in a valid procedure adopted. (Paras 40, 44 and 45)

Census Act, 1948 – Section 7 – Collection of Statistics Rules, 2011 – Rule 5 – Caste Survey in Bihar – What is intended by survey is collection of broad estimates based on which State can initiate legislative action and implement beneficial schemes even by an executive fiat so as to ensure development of backward communities within its State – Census under Census Act, 1948 can only be carried out by Central Government wherein even staff of local authorities have to be made available to carry on nitty gritty of interphase with citizens and collection of data – Word 'census' and 'survey' have been used interchangeably with reference to appropriate governments of Union, State or Union Territories – Inclusion of 'census' under Entry 69, does not prohibit any State Government from collecting live data as collected in a census, for the purpose of implementing welfare schemes within State and also carrying out affirmative action – Inclusion of Census under Entry 69 of List I does not restrict survey of very same details that could be collected under Census Act, unless it is with reference to any matter under List I or of such statistics which Centre is in the process of collecting. (Paras 47 to 50)

Judicial Review – Scope and ambit – Policy decisions shall not be interfered with by Courts unless patently arbitrary – If there is an objective and rational foundation for Government's decision, Courts will not embark upon exercise to ferret out a better measure in substitution of what Government proposes – In matters of economic rights and policy decision scope of judicial review is limited and circumscribed – If executive authority is found to be within its competence to frame a policy for better administration of State, unless policy framed is absolutely capricious, not being informed by any reason and can be clearly held to be arbitrary, founded on mere ipse dixit of executive functionary thereby offending constitutional provisions or comes into conflict with any statutory provision, Court cannot and should not overstep limits and tinker with policy framing of which is in exclusive domain of State. (Para 53)

Caste Survey in Bihar – Caste has been found to be an important indicator to understand backwardness since historically deprivations visited on communities were based on their caste names – Mere unfortunate circumstance of birth within one caste cannot lead to a man or woman being excluded from privileges and benefits enjoyed by other members of society – When it becomes accepted normal and general norm, then there can be no claim of equality within society – Impecunious circumstances or educational backwardness of an individual cannot be rectified by protections under Articles 15 and 16 – There is no element of coercion – What is attempted is collection of details which may not have mathematical precision but would necessarily provide broad estimates for State to formulate schemes – Data sought from subjects of survey, citizens within State of Bihar, are also details which are available in public domain but still difficult to be extracted – Mathematical precision is not warranted in identification of backward status or occupational classes or groups and caste is best denominator available as of now. (Paras 64, 66, 72 and 79)

Caste Survey in Bihar – Propriety and security concerns – Caste is a matter of descent while religion is a matter of belief – India has many instances of persons belonging to same caste practising different religions and despite religions other than Hindu religion, not practising caste system as such; those converted groups, in other communities also are conferred with backward status and enabled privileges and benefits by State – Details sought for in survey are not individual centric and is not aimed at targeting an individual, which in context of details collected from head of family, is virtually impossible, as law exists today – Disclosures are voluntary and it has a definite aim of bringing forth development schemes for identified backward classes/groups – Caste status sought to be collated is not intended at taxing, branding, labelling or ostracizing individuals or groups; but it is to identify economic, educational and other social aspects of different communities/classes/groups which require further action by State for its upliftment – Caste Based Survey has a full proof mechanism and there are no chances of any kind of leakage of data – Action of State is perfectly valid, initiated with due competence, with legitimate aim of providing 'Development with Justice' – Writ Petitions dismissed. (Paras 79, 80, 81, 83, 84 and 85)