This article has been written by Srajan Rai and Poorva Sharma, 3rd year law students at Dharmashastra National Law University, Jabalpur.
The Supreme Court recently heard the plea challenging the ongoing Caste Based Census in Bihar. A petition was filed in the Apex Court after the Patna High Court upheld the exercise being conducted by the State Government. The survey was challenged on two grounds, namely: the purported infringement of Article 21, encompassing the right to privacy, and the competence of the State Government to conduct such a survey. The Patna High Court in its judgement held the survey as “perfectly valid” with respect to its constitutionality. Aggrieved by the same, the petitioner moved to the apex court challenging the order of Patna High Court.
This article traces the jurisprudence of caste-based census in the Indian subcontinent and gives the reasons for the necessity of a caste-based census in India.
BACKDROP OF CASTE-BASED CENSUS IN INDIA
The first census survey was conducted in India during the colonial period, in the year 1881, to capture the demographic status of India. It was in 1931 that the socio-economic and caste-based census was conducted for the first time in the country. In the history of independent India, every Census conducted between 1951 and 2011 has made available information about Scheduled Castes and Scheduled Tribes. However, a significant data gap exists for other castes, which constitutes around 30-40% of the nation’s population. Until 1931, each Census included caste-related data, but in 1941, the British government collected such data without releasing it. The lack of comprehensive data poses challenges in estimating the population of Other Backward Classes (OBCs), different segments within the OBC category, and other groups. While some sources, like the Commission on Other Backward Classes, peg the OBC population at 52%, other figures are derived from National Sample Survey data. In 2011, the Union Ministry of Rural Development conducted the Socio-Economic Caste Census (SECC), gathering caste data while analyzing the socio-economic status of rural and urban households. While socio-economic information was released, the publication of caste-related data from this endeavor was withheld due to certain concerns. As stated by Solicitor General, the concerns were that there are people who are SECC (Socially and Educationally Backward) but not OBCs, and therefore the data may mislead and defeat the object. This withholding has sparked discussions about the intricacies and reliability of caste-related data. The available data is approximately 90 years old highlighting a pressing need for a caste-based census to bridge this data gap and facilitate India’s development. Conducting a census is essential for development as it provides crucial demographic and socio-economic data used for resource allocation, economic planning, and the implementation of targeted development policies and programs.
CASTE CENSUS: MAINE’S THEORY IN ACTION
The persistence of concepts like “status” in modern private law scholarship reflects a broader trend where legal scholars grapple with the need to align legal theory with societal realities. This struggle reflects the effort to reconcile traditional caste identities and current social dynamics in India. It is similar to the tension between private agreements and societal norms present in contemporary legal thinking, where conflicts arise between the freedom of contract (relates to individuals’ autonomy in making agreements) and constitutional paternalism (concerns government regulations aimed at safeguarding social well-being). This tension is relevant in the context of caste-based census because it acknowledges that while individuals may enter into contracts and agreements, these choices can be influenced by societal norms and structures. In India, caste identities often affect various aspects of an individual’s life, including marriage, employment, and education. Understanding how these societal norms impact individual choices is essential for crafting policies that promote equality and social justice.
The caste-based census aligns with the broader societal progression outlined in Maine’s “Status to Contract” theory. This theory posits that societies have evolved from a status-based system, where individuals’ roles and rights are determined by their birth or social status, to a contract-based system, where individuals engage in voluntary agreements and contracts that define their relationships and responsibilities. In antiquated societal frameworks, such as historical feudal systems, an individual’s legal entitlements, societal roles, and prerogatives were frequently ascribed according to their lineage or social standing. The quintessential case of this can be observed in caste systems, notably exemplified in India, where one’s caste dictated their designated functions, occupations, and societal hierarchies.
Henry Maine’s theory is relevant as the proposition of a caste-based census represents a stride towards transcending the limitations of such status-based paradigms (caste-determining roles) and embracing a more contract-centric approach (data-driven policies and informed decisions). The census facilitates the collection of comprehensive data that informs policies aiming to address historical inequalities and provide individuals with greater agency to break free from the constraints of their birth-based roles.
For instance, strategic policies focusing on education, economic empowerment, and affirmative action have the potential to dismantle longstanding barriers that have historically restricted individuals based on their caste affiliations. It is noteworthy that in recent decades, the judiciary in a plethora of cases underlined that the necessary action could not be taken due to the inadequacy of the 1931 census in comprehensively capturing caste dynamics and underscored the imperative for a contemporary caste-based census. The central issue in the Ashoka Kumar Thakur case revolved around whether the identification of SEBC or OBC could solely hinge on “caste.” The court highlighted that “Other Backward Classes” refer to socially or educationally backward citizens determined by the Central Government, but no acceptable determination has been made. The absence of a post-2005 National Commission for Backward Classes report, along with the lack of a substantial post-1931 census database, was underscored as worrisome aspects. Similar remarks were made in the case of Dr E. Sayed Ali v. Union of India.
The Supreme Court introduced the triple-test formula for instituting OBC reservation in local body elections through the Vikas Kishanrao Gawali Vs. State of Maharashtra ruling. The first step of this test involves the formation of a committee to gather empirical data illustrating the political backwardness of the EBC community. Without conducting surveys or censuses, how can the state substantiate the backwardness of specific communities? A caste-based survey would not only provide information about political backwardness but also shed light on the socio-economic conditions of various castes within the state. The crux of reservation jurisprudence now revolves around the presentation of quantifiable data to establish the backwardness of communities.
CASTE CENSUS AT THE NATIONAL LEVEL
The emphasis is on importance of macro-historical approaches in understanding complex social institutions. Hence, conducting a thorough nationwide caste-based census can be seen as a macro-historical approach to comprehensively examine the historical inequalities and social structures associated with caste. The recent verdict by the Patna High Court has heightened this demand. Many states and political factions have persistently advocated for such a census to acquire up-to-date demographic information about specific castes. This updated data is crucial for crafting more effective welfare policies, as relying on outdated information currently hampers the equitable distribution of opportunities. This impedes the achievement of social and economic justice, core constitutional objectives. OBCs have been particularly affected as there has been no census for this group since 1931, resulting in negligible improvements in their status. Many believe the Central Government avoids a caste-based census due to political motives.
The principles enunciated in the case of Balaji v. State of Mysore recognized historical discrimination against certain castes, particularly SCs and STs and advocated for reservations based on objective criteria like social and educational backwardness. It also acknowledged that identifying backwardness for affirmative action often required “rational” ways i.e. caste-based data. It affirmed that certain castes may be endowed with elevated status by virtue of their birth (existence of ‘privileged castes’), aligning with the idea that caste serves not only as a source of disadvantage but also as a significant reservoir of advantages and privileges within our societal framework. However, scrutinizing the nuances of caste should not be misconstrued as perpetuating the caste system itself. By implementing a caste-based census, myths concerning caste-based elitism can be effectively debunked.
One of the other concerns raised is the violation of Right to Privacy. The argument is that the question of caste, a personal information question, when asked during the survey, would violate the right to privacy of a person. The Supreme Court in the case of K.S. Puttaswamy had laid down a test of proportionality, where three aspects of the test were identified, namely legitimate aim (Legitimacy), suitability of the action (Effectiveness) and necessity of the action (Proportionality).
The Census Act of 1948 provides for the objective for conducting a census, which is “Development with justice”. If the test is applied in the case of caste-based census, the exercise has a legitimate aim i.e. to reveal up-to-date caste population data, filling a significant gap left by nearly 90-year-old data. It also satisfies the second prong as caste-based census offers unparalleled granularity, enabling accurate targeting of specific needs, effective monitoring, and grassroots-level interventions that benefit marginalized groups, making it irreplaceable in addressing socio-economic disparities among caste groups. The third prong, proportionality principle requires that the means chosen to achieve a legitimate aim should be proportionate to the goal. A caste-based census is proportionate as it rectifies historical discrimination by targeting the most disadvantaged, promoting fairness and equal opportunities for all. It can safeguard privacy by ensuring data anonymity and using aggregated information, protecting individuals’ personal details while providing essential socio-economic insights for policymaking. Hence, this argument that the Caste-based census is against the right to privacy is futile.
While other countries conduct censuses based on religion or ethnicity, these systems are distinct from India’s caste-based classification, with its complex hierarchy and historical injustices. Affirmative action policies tailored to caste-based data are a call for an update of modern legal terminology ensuring they accurately represent contemporary social realities. First, they acknowledge the distinctive nature of caste-based discrimination and its historical legacy, which is not fully captured by religion or ethnicity. Second, these policies do not reinforce the existing status quo but rather aim to rectify historical injustices by promoting social and economic mobility among marginalized groups. In essence, caste-based affirmative action represents a move towards social contract rather than further entrenching existing disparities.