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The Supreme Court on Monday agreed to hear on August 18 multiple petitions claiming that the Bihar caste-based survey was an attempt by the Nitish Kumar government to “usurp” the Centre’s powers.
Appearing before a Bench headed by Justice Sanjiv Khanna, the petitioners, represented by a battery of lawyers led by senior advocate Mukul Rohatgi, urged the court to stay the implementation of the Patna High Court decision, allowing the State government to go ahead with the survey.
The Bench said any prohibitory move by the court at this stage would indirectly amount to a stay without hearing the State government’s side.
The petitioners submitted that the government had issued notice on August 1, that is, within hours of the High Court order, to complete the survey within the next three days.
“This issue will become infructuous if we wait till August 18,” a lawyer submitted
“But it will be an indirect stay without hearing the other side or the application of the mind. We do not want that. We will hear you all on August 18,” Justice Khanna addressed the petitioners.
The petitions have appealed a Patna High Court decision on August 1, upholding the legality of the State’s June 6, 2022, order notifying the survey. They contended that the State lacked the competence to issue the survey notification.
“The notification is against the constitutional mandate of the distribution of powers between the State and the Union Legislature enshrined under Article 246 of the Constitution,” the petitioners said.
They said the survey violated Schedule VII of the Constitution, the Census Act of 1948, and the Census Rules of 1990. The petitions highlighted that the census was enumerated at Entry 69 in the Union List in the Seventh Schedule of the Constitution.
“Therefore, only the Union has the authority to conduct a census in India, and the State government has no authority to decide and notify the conduct of a caste-based survey in Bihar. The notification is null and void,” they contended.
The Bihar government had said it would conduct the survey from its own funds. The notification was published pursuant to a State Cabinet decision on June 2, 2022.
“There is no independent power on behalf of the State government to appoint District magistrates and local authorities to supervise and aid the taking of censuses without there being a notification under Section 3 of the Census Act, 1948, by the Central Government in this regard,” the petitioners have argued.
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