Court nod for Bihar caste survey a shot in the arm for regional parties

The move can potentially reshape electoral dynamics as local parties can use it to counter BJP’s aggressive Kamandal-II strategy.

An enumerator  collects information from residents during the caste-based census of Bihar on August 2, the day after the Patna High Court rejected petitions against the survey. | Photo Credit: ANI

On August 28, the Central government filed an affidavit in the Supreme Court that said: “No other body under the Constitution or otherwise is entitled to conduct the exercise of either census or any action akin to census.” The court was hearing petitions challenging the caste survey carried out by the Bihar government. Then, in a somewhat farcical move, the Centre within hours withdrew its affidavit and filed a fresh one, averring that paragraph 5 with the above sentence had “inadvertently crept in”.

In the fresh affidavit, the Centre merely maintained that the census was a statutory process governed by the Census Act of 1948 and that Section 3 of the Act empowered only the Central government to conduct it. The course correction shows that the Central government is keen to avoid appearing as an obstruction to Bihar’s caste survey.

On August 21, Solicitor General Tushar Mehta, representing the Centre, said the “exercise may have some consequences”, a remark that triggered a flurry of angry reactions from the Janata Dal (United)-Rashtriya Janata Dal [JD(U)-RJD] Mahagathbandhan government in the State, which said that the BJP was against giving Other Backward Classes (OBCs) their due.

The BJP was quick to counter this, arguing that in February 2020 and February 2021 it had signed the unanimous resolution passed by the Bihar Assembly for a caste-based nationwide census in 2021 and that it was also part of the all-party delegation from Bihar that met Prime Minister Narendra Modi in August 2021 on the issue. But this was when the BJP and the JD(U) had an alliance government in Bihar and well before Chief Minister Nitish Kumar dumped the National Democratic Alliance for a second time, which he did in August 2022.

Ever since Bihar started its “scientific” caste survey on January 7 after the Centre, at various fora, ruled out a nationwide caste census, the issue has taken complex twists and turns.

Petitions challenging survey

On May 4, hearing a batch of petitions challenging the survey on various grounds, including that census was a Central government subject and that the survey violated the privacy rights of individuals, the Patna High Court put the exercise on hold even as it recalled how Yashica Dutt described caste in her book Coming Out as Dalit as “the invisible arm that turns the gears in nearly every system in India”.

Agreeing with the submission of the petitioners, the High Court said in its May order: “Prima facie, we are of the opinion that the State has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament.

“We also see from the notification issued that the [Bihar] government intends to share data with the leaders of different parties of the State Assembly, the ruling party, and the opposition party which is also a matter of great concern. There definitely arises the larger question of the right to privacy…. We direct the State Government to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed in the writ petition.”

The court fixed the hearing of the main petition challenging the survey on July 3. At this time, the Bihar government challenged the High Court’s order in the Supreme Court but the apex court refused to stay it.

On August 1, the High Court, after hearing the State government’s arguments, revised its earlier order, dismissed the petitions, and gave the survey the go-ahead. “We find the action of the State to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’,” it concluded.

A foolproof mechanism

The Bihar government had argued that the survey had a foolproof mechanism and that there was no chance of any leakage of the data. The court said that the 17 heads under which details were collected would definitely indicate the social and educational backwardness of communities, which was also an indicator of their financial condition.

Noting that caste had been found to be an important indicator to understand backwardness, since historically the deprivations visited on communities were based on caste names, the High Court said the constitutional goal was “not intended at effacing caste but aimed at erasing once and for all, discrimination based on caste”.

The High Court mentioned that Karnataka had carried out such a survey, although it had done so through a commission and by legislation, which, the court said, only reinforced the point that States had the power to carry out such surveys for the collection of data to achieve the constitutional goal of uplifting the downtrodden and the marginalised.

The Karnataka State Permanent Commission for Backward Classes conducted the survey in 2015 when Siddaramaiah was Chief Minister. The report was meant to enable the government to provide representation and other benefits to castes according to their population. The details of the survey are yet to be made public even as Siddaramaiah announced in June his intent to accept the survey report.

Against this backdrop, the Bihar government’s bold decision to publish the findings of its caste survey—this could be the first such exercise since the 1931 census, which still serves as the benchmark for affirmative action, including quotas (Scheduled Caste/Scheduled Tribe reservation in 1950 and the OBC quota in 1991-92)—has the potential to be a game changer, at least electorally. The survey is likely to show that the OBC share in the population is much more extensive than the current count.

The implementation of the B.P. Mandal Commission report expanded the reserved category to include the OBCs, who were granted 27 per cent reservation in 1992. A nine-judge bench of the Supreme Court (in Indira Sawhney vs Union of India) approved the government’s decision by a 6:3 judgment that held that caste was an acceptable measure of backwardness. If the OBC reservation is increased from the existing 27 per cent, it will breach the 50 per cent quota ceiling the Supreme Court set in 1992.

In 1953, the Kaka Kalelkar Commission identified 2,399 backward castes and recommended a caste census along with the 1961 census. The Mandal Commission, which submitted its report in 1980, pegged the number of socially and educationally backward communities at 3,743, which is 52 per cent of the total population.

The data from the caste census will help the government carry out welfare schemes for the weaker sections more effectively and will be made public soon, Chief Minister Nitish Kumar said on August 25. | Photo Credit: PTI

The data from Bihar’s caste census will be fed into the mobile application BIJAGA (Bihar Jaati Jangannatha) and will help the government carry out welfare schemes for the weaker sections more effectively and will be made public soon, Nitish Kumar said on August 25. The Supreme Court has already refused the plea of petitioners to stop the release of data, the collection of which was completed on August 6.

K.C. Tyagi, former MP and JD(U) chief spokesperson, said that a “caste survey would be Mandal II and it will wipe out the Kamandal (II) politics of BJP”. In 1990, at the height of the BJP’s Ram Janmabhoomi temple movement, the V.P. Singh Central government had dusted off the Mandal Commission report. This changed the political narrative of States such as Uttar Pradesh and Bihar and led to the rise of leaders such as Mulayam Singh Yadav (of the Samajwadi Party) and Lalu Prasad (of the RJD).

While the BJP has embarked upon its Kamandal II with the Ram temple, the abrogation of Article 370, and the push for a uniform civil code, the votaries of quota politics latched on to the caste census, which they believe could be Mandal II.

This googly of sorts from the Nitish Kumar-led Mahagathbandhan government seems to have left the BJP in a dilemma, the party having become more OBC-centric over the past few years while shedding its Brahmin-Baniya tag. While the Modi government has expressed in Parliament and in the Supreme Court its discomfort with the exercise, the BJP’S Bihar unit is forced to back the caste survey to the extent of seeking the framing of legislation to complete the exercise.

Replying to a written question in the Rajya Sabha in December 2021, Minister of State for Home Affairs Nityanand Rai said that the government of India had not enumerated caste-wise populations in the census since Independence; he added that there was no plan to collect caste data in the next census either. He made the same argument in February 2022 and again in the monsoon session in July 2023.

In August, Uttar Pradesh Chief Minister Yogi Adityanath categorically said there were no plans to conduct a caste census in the State, arguing that the census fell under the Union List of the Seventh Schedule of the Constitution.

Highlights

• The Bihar government started its caste survey on January 7 after the Centre ruled out a nationwide caste census.
• A batch of petitions were filed in the Patna High Court challenging the survey on various grounds, and on May 4, the court put the process on hold and fixed July 3 as the date to hear the main petition. Meanwhile, the Bihar government challenged the High Court order in the Supreme Court, which refused to stay it. On August 1, the High Court reversed its earlier order and gave the survey the go-ahead.
• The BJP and the Congress have been wary of the issue, but regional parties have been making an emotive campaign around it, forcing the two national parties to deal with it because of its electoral impact.

Centre’s affidavit

In an affidavit filed before the Supreme Court in September 2021, the Union Ministry of Social Justice and Empowerment maintained that “a caste-wise enumeration in the Census has been given up as a matter of policy from 1951 onwards”. It held that carrying out the OBC count in the 2021 census would not be feasible. This was in response to a petition filed by the Maharashtra government (the Maha Vikas Aghadi government headed by Uddhav Thackeray) asking for a direction from the apex court to the Census Division to collect information on backward classes in the 2021 census.

The Congress has similarly grappled with the caste count. In May 2010, Congress MP Ajay Maken, then the Minister of State for Home Affairs, wrote an open letter to nearly 70 MPs, cutting across party lines.

He said in the letter: “If we were to accept the proposal to accept caste as a parameter in the Census, we would, for at least the next 10-20 years institutionalize Caste rather than Development as the National Political Agenda…. Even in politically surcharged times of Mandal and Mandir politics we swore by and took people along this agenda of development sans caste and community. A regression into the realm of Caste being the political agenda for the next decades will not only be disastrous for political practitioners like me but will be detrimental for all parties with a developmental agenda, as well as the country in general.” The top leadership later pulled him up.

In 2011, even though the UPA Group of Ministers that deliberated on the issue could not forge a consensus, the UPA II government carried out the OBC caste count as part of a Socio Economic Caste Census, but the findings were not made public.

Both the Congress and the BJP have been wary of stirring up a hornets’ nest over the issue and have instead been blaming each other for not dealing with it. This is possibly why the 2011 caste data were not released even after being submitted to the NITI Aayog in 2016 when the BJP government was in power.

RJD leaders  celebrating the Patna High Court’s decision rejecting the petitions against the Bihar government’s caste-based survey, in Patna on August 1. | Photo Credit: PTI

Now with regional parties making an emotive campaign around it, the two national parties have no choice, given the electoral impact, but to fall in line. In a public rally in Sagar in election-bound Madhya Pradesh on August 22, Congress president Mallikarjun Kharge promised to conduct a caste census if his party was voted in.

In April, Rahul Gandhi made a strong pitch for making the 2011 caste census data public, and at a backward classes cell meeting of the Congress in Bundelkhand in July, the party gave a clear call for increasing the quota limit after the caste census. Also in July, the opposition Indian National Developmental Inclusive Alliance made a demand for a caste census in its Samuhik Sankalp (joint resolution).

While Tamil Nadu Chief Minister M.K. Stalin (of the Dravida Munnetra Kazhagam) asked the Centre to go for a complete caste-wise census as part of the 2021 census exercise, DMK MP P. Wilson submitted a private members’ Bill in the Lok Sabha in the monsoon session seeking to transfer the subject of caste census from the concurrent to the State list.

The YSR Congress government in Andhra Pradesh passed an Assembly resolution in November 2021 for a caste-based census of Backward Classes. In June 2023, Pawan Kalvan’s Jan Sena, which has warmed up to the BJP, demanded a caste census in Andhra Pradesh.

The JD(U) and RJD in Bihar, the Samajwadi Party and Bahujan Samaj Party in Uttar Pradesh, and Jharkhand Mukti Morcha in Jharkhand are strong votaries of a caste census. Sharad Pawar’s Nationalist Congress Party demanded a caste census across the country.

While there has been little demand for change in the reservation module for STs, the sociopolitical discourse around OBC and SC reservation has started taking new turns, with the dominant sub-castes in both categories slicing away quota benefits at the expense of the vast number of others. The OBC group has seen demands for a separate quota for “Atipichchda” [Extremely Backward Classes (EBCs)] and the SC (Dalit) segment saw a divide between Dalits and “Mahadalits”.

There was indeed a sort of a political churning when these castes (non-Yadav backward castes and non-Jatav Dalits) in Uttar Pradesh and Bihar formed alliances with dominant castes to share political power, a phenomenon that the veteran socialist leader Ram Manohar Lohia predicted in his book The Wheel of History. The emergence of the BJP in Uttar Pradesh and Nitish Kumar in Bihar riding on EBC support are recent examples of this. In 1978, the then Bihar Chief Minister, Karpoori Thakur, had pushed for a sub-quota.

In 2020, the Supreme Court deliberated at length over sub-quotas and ruled that States could make categories for SCs, STs, and socially and educationally backward classes, and contended that there were un-equals within these categories. Much before that, Tamil Nadu, Haryana, and Rajasthan had implemented sub-quotas.

In 2017, the Modi government set up the Rohini Commission. Some of its findings were leaked, including that it recommended four sub-categories within OBCs and that it found 97 per cent of OBC reserved jobs and college seats going to just 25 per cent of the sub-castes. The commission finally submitted its report officially on July 31 this year. The government might deliberate the report now, given the subject’s new salience.

As the clamour among intermediary classes for reservation grew, the demand for a fresh caste census started gaining momentum, basically as an attempt to broaden the OBC pie. The argument given was that the population of OBCs was much more than the records, and their quota had to be increased from the Mandal Commission’s 27 per cent. There is a perception in the opposition camp that the BJP’s Hindutva politics, which has made inroads into sections of EBCs, could be countered by a quota pitch.

Bihar’s move has launched a thousand ships. On August 29, Chhattisgarh Chief Minister Bhupesh Baghel wrote a letter to the Prime Minister demanding a nationwide caste census with a separate code for OBCs.

The same day, during a media interaction in New Delhi, Telugu Desam Party chief Chandrababu Naidu called for a “comprehensive caste census”. The BJP government in Gujarat in a separate move announced 27 per cent reservation for OBCs in local body elections. The decision to increase the quota from the existing 10 per cent, taken by the Gujarat Cabinet in its meeting on August 29, was based on the Jhaveri Commission that the State government had set up to decide on the issue of OBC reservation in local bodies.

While the creation of a casteless society remains a Utopian dream, the politics of the day sees new narratives of social justice emerging as the “cast your vote or vote for your caste” dilemma continues to form the background noise of election campaigns.

As B.R. Ambedkar says in his iconic book The Annihilation of Caste: “Turn in any direction you like, caste is the monster that crosses your path.”