BIRENDRA KUMAR BHOWMICK Vs. UNION OF INDIA

JUDGEMENT

(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 recogni tion 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 tp 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 subsection (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.