Calcutta High Court
Birendra Kumar Bhowmick vs Union Of India (Uoi) And Ors. on 22 August, 2002
Equivalent citations: AIR2003CAL65, AIR 2003 CALCUTTA 65, (2002) 4 CAL HN 578
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur, Jayanta Kumar Biswas
JUDGMENT Ashok Kumar Mathur, C.J.
1. This public interest litigation has been filed by the petitioner praying for a writ of mandamus commanding the respondent No. 1, their agents, servants, officers, and subordinates to enumerate systematically each caste-wise enumeration in Census-2001 AD for all castes in detail, about their place of birth, particulars, nationality, literacy, income, occupation whether in administration and or in any educational institution in the State or professional institutions or private or public, or if a drop-out, if are from the minority communities or is an alien or friendly or enemy, infiltraters or foreigners or belongs to any religious groups or is an handicapped, of any groups OBC/ST/SC or are in under the services of local authorities. In sum total the prayer of the petitioner was that during the Census operation when enumeration of Scheduled Castes and Scheduled Tribes is done, enumeration of OBC should also be undertaken during the census operation. The petitioner is a Citizen of India and is working for the advancement and development of the backward classes and for their general welfare. It is alleged the petitioner was a co-opted member of West Bengal in the Second All India Backward Classes Commission and the petitioner himself belongs to backward class. Therefore, his grievance is that though on the basis of Mandal Commission recognition has been granted to OBC and there are various provisions in the Constitution which permits the welfare of the backward classes, therefore, during the Census-2001 enumerators should also identity the backward classes and Government should direct the enumerators and make separate column in the Household Schedule for the backward classes.
2. The census is taken after every 10 years and this is being undertaken under the Census Act, 1948 (hereinafter referred to as the Act of 1948). Section 3 of the Act of 1948 provides that the Central Government may by notification in the Official Gazette, declare its intention of taking a census in the whole or any part of the territories to which this Act extends, whenever it may consider it necessary or desirable so to do and thereupon the census shall be taken. Then the Act deals with how machinery is to be set up. Section 8 of the Act of 1948 lays down that the census officer may ask all such question to all persons within the limits of the local area for which he is appointed and every person is legally bound to answer such question to the best of his knowledge and belief. Section 10 of the Act of 1948 lays down that subject to such orders as the State Government may issue in this behalf, a census officer within the local area for which he is appointed, leave or cause to be left a schedule at any dwelling house or with the manager or any officer of any commercial or industrial establishment, for the purpose of being filled up by the occupier of such house disclosing all the information which is required in that schedule. Section 18 of the Act of 1948 confers a power on the Central Government to make rules for carrying out the purposes of this Act of 1948.
3. In exercise of power under Section 18 of the Act of 1948, the Central Government framed a rule known as "Census Rules, 1990" (hereinafter referred to as Rules of 1990). Rule 6 of the Rules of 1990 talks about census schedules and questionnaires. It says that the census schedules or questionnaires shall be notified by the State Government through Official Gazette under Sub-section (1) of Section 8 of the Act of 1948. In pursuance of that power the State Government on 18th July, 2000 issued a notification which says that in exercise of the powers conferred by Sub-section (1) of Section 8 of the Census Act, 1948, the Central Government had issued instruction that all Census Officers may ask all such questions from all persons as enumerated in the said notification and collect information through the "Household Schedule" in connection with the Census of India 2001. In that notification about 23 items have been enumerated and that information has to be given in a schedule known as "Census of India 2001 :
Household Schedule". In this schedule all the question which are required to be answered have been mentioned. Therefore, the whole census operation is undertaken in terms of the provisions of the Act of 1948 and Rules of 1990 as mentioned above. In this schedule there is no column for the OBC though there is a specific column meant for the SC/ST. In the notification issued by the Central Government on 18th July, 2000 there is no column which requires the enumerators to prepare an "OBC Column". Therefore, in this context the contention of the learned Counsel is that since the OBC has been recognised as a class, therefore, during the census operation OBC class should also be identified in a separate column.
4. In this connection learned Counsel has invited our attention to various provisions of the Constitution like Article 15(4) which provides for making a special provision for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Attention was also invited to Article 16(4) of the Constitution which provides for reservation in the matters of promotion to any class or classes of posts in the service under the State for the SC/ST. Our attention was also invited to Article 38 of the Constitution which lays down that the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Our attention was also invited to Article 243(D)(6) and 243(T)(6) of the Constitution which provides for reservation in the local bodies. Our attention was also invited to Article 330 of the Constitution which provides for reservation in the House of People. Our attention was also invited to Article 338 "of the Constitution which provides for establishment of Commission for SC/ST known as National Commission for the Scheduled Castes and Scheduled Tribes, which shall be an advisory body to advise the Government of the welfare of the Scheduled Caste and Schedule Tribes. In Article 338(10) of the Constitution references to the Scheduled Castes and Scheduled Tribes shall be construed as including references to such other backward classes as the President may, on receipt of a Commission appointed under Clause (1) of Article 340, by order specify and also to the Anglo Indian Community. Our attention was also invited to Article 340 of the Constitution which lays down that the President may appoint commission to investigate the conditions of socially and educationally backward classes within the territory of India and make recommendations as to what steps should be taken to remove such difficulties and to improve the condition of such persons.
5. In view of these provisions of the Constitution, the learned Counsel for the petitioner submitted that the other backward class (OBC) have come to be recognised and, therefore, in order to do justice to such other backward classes, their census is necessary unless that is done it will not be possible to identify these people and therefore it is necessary that a separate column for OBC be included in the "Census of India, 2001 : Household Scheduled".
6. As against this learned Counsel for Union of India submitted that Courts cannot give a direction to include OBC in the census operation as necessary provisions have already been made in the Constitution under Article 338 to the effect that the President shall appoint a commission for the welfare of Scheduled Castes and Scheduled Tribes and OBC and this Commission can make necessary recommendations. Courts cannot issue a writ of mandamus because there is a provision already made in the Constitution for appointment of the Commission and the petitioner has to make this representation before the National Commission and the National Commission may accordingly advise the Government. It was pointed out that a National Minority Commission is already in existence. Therefore, it is submitted by the Additional Solicitor General of India that the proper remedy of the petitioner is not by way of this public interest litigation rather by approaching the National Minorities Commission for the relief which is being sought for by the petitioner by filing this public interest litigation. The submission of the learned Counsel for Union of India appears to be justified as sufficient provision has been made in the Constitution for redressal of the grievance of the petitioner. Therefore, the remedy of the petitioner lies before the Commission and this Court cannot issue a writ of mandamus for the relief sought for by the petitioner. 11 is submitted that as far as reservation in the employment and admission in educational institutions are concerned, that has already been done. But as far as categorisation in the census operation is concerned, no such provision has been made in the Constitution. The grievance of the petitioner can only be redressed by amending the Constitution on the recommendation of the National Minority Commission, Court cannot give direction to recognise a particular category for the purpose of census. It was pointed out that on the basis of Mandal Commission Report appropriate reservation has been made in the field of employment and education and constituencies have been earmarked, but no such classification has been provided in the Constitution and the Courts sitting in extraordinary jurisdiction cannot direct the Legislature to legislate and include this category as a category like that of Scheduled Castes and Scheduled Tribes. The submission of the learned Additional Solicitor General is justified since it requires a legislative enactment whether OBC is to be recognised as class like the SC/ST or not. In Article 340 of the Constitution only SC and ST have been recognised and no OBC has been recognised. Therefore. Court cannot direct the legislature to include OBC as one of the class as recognised in Article 338. In Article 338 of the Constitution reservation has been made for SC and ST and no class as OBC has been recognised in the Constitution and the petitioner's remedy lies in approaching the National Minorities Commission for recognition of OBC as a class to be included in the census operation. The main purpose of the census is to calculate the population of which neutrality is important. Therefore, as a mat-
ter of policy it was decided by the Government of India during the first Census of 1951 that no caste, race, tribe, etc. should be inquired during the census operation and it shall be restricted only to SC and ST which has been notified by the President in terms of Articles 341 and 342 of the Constitution. Therefore, in all census operations castes. races, tribes, etc. have not been included as a measure of general principle, except SC and ST which has been notified by the President in exercise of power conferred under Articles 341 and 342 of the Constitution. Thus in view of the policy decision of the Government of India that no caste, races, tribes, etc. shall be enumerated in household schedule, the census schedule no where mentions about any caste, race, tribe, etc. except that of SC and ST. This appears to be a reasonable one and that will give a neutrality to the whole census operation, otherwise the whole exercise will become difficult to undertake in a place like India where the population has crossed 1 billion. Therefore, looking from the point of view of massive census operation, this enumeration on the basis of caste, race, tribe, etc. has been deliberately excluded for a sound administrative reason. Hence we are of the view that in this view of the matter it is not possible for this Court to issue a writ of mandamus to direct the respondent to include OBC as a class in the census operation. Hence we don't find any merit in this public Interest litigation and the same is dismissed.
Jayanta Kumar Biswas, J.
7. I agree.