Law doesn’t bar states from counting castes - Hindustan Times
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Law doesn’t bar states from counting castes

Nov 01, 2023 10:53 PM IST

Caste censuses are essential for addressing socioeconomic inequalities and informing policymaking

The Bihar caste survey has revealed the ground realities of the social fabric. Different political parties have divergent views on it. The Supreme Court (SC) issued notice on the Patna High Court judgment that held the state government is competent to undertake this exercise.

An enumerator staff marks a house during the first phase of the caste-based census in Bihar, in Patna, January 7, 2023 (PTI) PREMIUM
An enumerator staff marks a house during the first phase of the caste-based census in Bihar, in Patna, January 7, 2023 (PTI)

The last available data on caste is of undivided India, from 1931. It has lost its meaning in the present times given changed circumstances. The Mandal Commission report (1980) had a chapter on “the social dynamics of caste” recording that notwithstanding public declarations condemning caste, it has remained a significant basis of action in politics and decision-making of governments. The caste factor is like “communal politics”, which everyone condemns in public but a large number of them indulge in privately and publicly.

So, why is the discussion on caste relevant?

Primarily because it exposes different facets of prevalent socio-economic inequalities. As revealed in the Bihar survey, if 63% of the population is backward and extremely backward, the upper caste social morality needs to acknowledge this problem. That the middle class in India has grown in the last three to four decades cannot be a ground to oppose this process. Insights from accurate caste data can go a long way in addressing the prevailing inequalities in society and filling in the gaps in policymaking.

The challenge in courts to the caste census has been on two grounds: One, such data violates the right to privacy of citizens; and two, the state government is incompetent to undertake the process because the Constitution of India gives law-making power on “census” exclusively to the Union government.

Both arguments are flawed.

The concurrent list of the Constitution has entries such as doing “enquiries” and “surveys” concerning economic and social planning, social security, employment, unemployment, and statistics of births and deaths. “Census’ has neither been defined in the Constitution nor the Census Act of 1948. Census has been understood as the official “counting” of people of a state or the nation.

Within the available set of definitions, “census” is primarily a “headcount” of inhabitants of the nation or a defined territory. It may not necessarily have a purposive definition to do “profiling”, though the data collected may contain classified information relating to the social and economic conditions of people. Hence, in the prevailing scheme of other constitutional provisions, the principle of federalism and subsequent changes in law, it is appropriate to confine “census” to only “head counts” and “house listing” as opposed to the March 2021 initiative of the Central government to conduct a country-wide census, which lists 31 questions to be asked for this purpose.

The Centre’s affidavit in response to this challenge against the Bihar government’s caste survey pending in the SC does not mention its stand on the subjective concept of the right to “privacy”. It has avoided explaining its scope of powers under Entry No 69 and has plainly stated that “census” is covered under the Entry. This stand is also vague when it says the central government is committed to taking affirmative action for the uplift of the scheduled castes, scheduled tribes, and other backward classes, while making a careful but conspicuous departure from dealing with the impact of the Collection of Statistics Act, 2008. Affirmative action cannot be initiated and implemented through the constitutional mechanism without knowing the ground realities.

So, why should the states undertake this exercise?

The economic, social, and educational status of Indians across its vast regions is significantly different. It is evident from the Bihar survey. This process of survey and collection of data at the regional level has the potential to be more efficient and focused than the Centre preparing a pan-Indian solution for diverse regions and problems. The Collection of Statistics Act of 2008 was enacted to collect “all kinds of statistics” from individuals, households and also from the local governments.

The states are empowered to collect such statistics through a “statistical survey”, with its implicit meaning being undertaking a “census” or a “survey”. In the Constitution, the states have been assigned to ensure a very substantive part of “equality of opportunity for all citizens”. Hence, without excluding the central government’s right to conduct surveys, state governments, which are better placed to collect meaningful data considering the region-specific problems, should pursue these.

As it has turned out, the relationship between caste and social hierarchy is complex. Caste status may change as economic and legal regimes evolve. For instance, the colonial administration passed the Criminal Tribes Act of 1871, which declared all those who belonged to a certain class, caste, or tribe as born criminals. This notion was removed when the socio-legal regime evolved after Independence.

Today, we have multi-layered constitutional and statutory protection against anyone harbouring such a notion. However, the hierarchy concerning castes has not changed within the social fabric. It is primarily because of the economic disparity between different classes. The cure, perhaps, lies in addressing the economic inequities. Once the data is available, policymaking can focus on achieving lasting peace and harmony by ensuring socio-economic justice to all classes and groups.

MR Shamshad is advocate-on-record, the Supreme Court of India. The views expressed are personal

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