Is It a Survey or Census? Bihar's Caste Enumeration on a Sticky Wicket

'Census' is mentioned in the Union List and only the Centre can make laws on the subjects mentioned in this list.

Nitish Kumar, Chief Minister of Bihar.

(Photo: PTI)

Anti-caste activists have been demanding a comprehensive caste enumeration for a very long time. Not just activists, members of numerous backward classes commissions, policymakers, researchers and even courts have felt the need for data on individual castes and caste groups for various purposes.

Bihar's caste survey promised to fulfil this need, even if for a single state, but it too now has been stopped in its tracks.

The Patna High Court has put a stay on the survey after taking objection to it on three points, but primarily on the grounds that the Nitish Kumar-led government is conducting a census by deceptively calling it a survey, while the right to conduct a census solely resides with the Union government.

"The present exercise by the State of Bihar can only be seen as an attempt to carry out a ‘census’ under the name of a ‘survey,'" the division bench of chief justice K Vinod Chandran and justice Madhuresh Prasad stated in their order on 4 May.

Wider Support for Caste Enumeration

The topic of caste enumeration has been attracting headlines majorly since the last couple of years. Recently, Rahul Gandhi, while speaking in Karnataka ahead of the assembly elections, offered his unequivocal support to the demand of collecting caste data in India's decennial census. His party, the Indian National Congress, has included the demand for caste enumeration in its official programme too.

In April, Tamil Nadu chief minister MK Stalin brought all major political parties opposed to the Bharatiya Janata Party on one platform for the demand of "caste census."

Stalin's party, the Dravida Munnetra Kazhagam, has also asked the Union government to amend the Constitution to allow states to carry out their own censuses if it is unwilling to do caste enumeration on its own.

The Narendra Modi government is unlikely to be moved by this plea. Further, the government has categorically said that it will not collect caste data in the census. However, at this juncture, the fate of the 2021 edition of the decennial census itself is in question. The government had initially postponed the census due to the extraordinary circumstances of the COVID-19 pandemic. No such circumstances exist anymore but the Union government has shown an utter lack of desire to conduct the census.

The country has conducted a national census every 10 years continuously since 1881. It is quite unprecedented that we are two years late in conducting the 2021 census and the work still has not begun.

It won't be unreasonable to assume that the state governments may have felt the need to conduct their own censuses due to the Union government's unwillingness on the question.

Who Can Conduct a Census?

After Bihar, Odisha government too decided to conduct its own census – however its exercise will be limited to the Other Backward Classes (OBCs).

The states have to rely on 2011 census data for all their policymaking needs, however that data seems dated in this fast-changing world. For caste-related data, the governments have to go even far back in time – all the way to the 1931 census.

The Bihar caste 'survey,' if allowed by the court, will be a valuable resource for the government, researchers and the public. However, there's that sticky issue of legal jurisdiction.

'Census' is mentioned in the Union List in the Constitution's Seventh Schedule. Only the Union government can make laws on the subjects mentioned in this list. For example, India's decennial census is governed by the Census Act, 1948.

The Patna High Court has reserved its verdict for 3 July. The 'caste survey' was being carried out in two phases. The first phase had been completed in January itself and more than half the work in the second phase was over too. But due to the high court's stay, all the work has now stopped.

Ahead of the Patna High Court's order, Nitish Kumar had expressed his surprise at the fact that anybody would oppose the caste enumeration. "We will be able to find out economic deprivation in all castes. Who does this hurt?" He had asked exasperatingly.

Bihar's caste enumeration had created enthusiasm across the country. More non-BJP states were expected to emulate it if it had been successful. However, one has to agree with the high court's observation that Bihar's 'survey' is actually a census and not a survey.

Bihar's exercise is clearly modelled on India's decennial census. In the first phase that was carried out in January, Bihar's enumerators took up houselisting. In the second phase starting from 15 April, they had set out to count each and every person native to the state and fill a questionnaire consisting of 17 questions, including age, sex, occupation, caste, etc.

These two phases are identical to the national census. Also, the fact that this exercise would collect detailed information about each and every person of Bihar makes it a census; a survey is more limited in scope.

The Patna High Court's other objection, regarding privacy, is not that convincing though. The court has expressed concern at the fact that the Bihar government will share the data of the 'survey' with political parties and leaders, which will be a violation of people's right to privacy. However, the court here has missed the basic fact that when a data set like this is released in the public domain, all personally identifying details are removed. If the court doubts that the government may not have the sense to follow this universally accepted practice, it can give a clear direction to the government to do so.

If the Bihar government is impinging on the Union government's functions, the centre should have been the right party to file a case against it. However, it has not done so. It is also hard to take seriously the petitioners' contention that the caste enumeration is "politically motivated." Political motives can be attributed to everything that politicians do but it's not a substantive criticism.

This still leaves the question of whether the state government can take up an activity that is clearly mentioned in the Union List and not the Concurrent List. But we will have to wait till 3 July to get an answer to that.