The special leave petition filed by Akhilesh Kumar, one of the petitioners, through advocate Tanya Shree, in the Supreme Court said that only the Union has the authority to conduct Census in India and the State Government had no authority to decide and notify the conduct of caste-based survey in State of Bihar.

“It is submitted that the (caste-based survey) Notification dated June 6th, 2022 is against the Constitutional mandate of distribution of powers between the State and the Union legislature as enshrined under Article 246 of the Constitution read with Schedule VIIth of the Constitution and ultravires the Census Act, 1948 read with Census Rules, 1990 and is therefore void ab initio,” the plea said.

The petition said that Article 246 read with the three lists enumerated under VIIth Schedule makes it clear that Parliament has exclusive power to make laws with respect to all the matters enumerated in the Union List as Census is enumerated at Entry 69 of List 1.

“A bare perusal of Section 3 (of the Census Act, 1948) makes it evident that only the Central Government is authorised to publish notification for conduct of census. Therefore, the State Government could not have notified conduct of Caste Based Survey”, it added.

Pertinently, Section 3 of the Act only empowers the Central Government to declare its intention of taking a census whenever it may consider it necessary.

The plea contended that there exists no independent power on behalf of the State Government to appoint District Magistrate and local authority to supervise and aid taking of census, without there being a notification by the Central Government in this regard.

It argued that the State legislatures do not have any power to legislate in relation to taking of Census either under Schedule VIIth of Constitution or under the various Statutory provisions because only the Union has power to legislate in relation to Census as it is an Entry at 69 of List 1.

In its decision passed on August 1, the High Court, while dismissing the batch of pleas, gave a green signal to the Nitish Kumar-led state government to conduct caste-based survey in Bihar.

Earlier on May 4, it had ordered an interim stay on the survey which had started on January 7 this year and was scheduled to be completed on May 15.

The pleas filed before the high court contended that the survey could only be done by the Centre and the Bihar government was doing it to take "advantage" in elections.

“We find the action of the State to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’,” said the High Court while dismissing the batch of pleas.