TMI Blog2010 (5) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... B.S. Banthia ,Adv, Mr.Khwairakpam Nobin Singh ,Adv, Mr.Uday Holla, Sr.Adv, . Adv, .Genl. Mr. Sanjay R. Hegde ,Adv, Mr.Riku Sarma, Adv, . M/S Corporate Law Group ,Adv, Mr. Rajesh Srivastava ,Adv, Mr.Dinesh Dwivedi, Sr.Adv, . Mr.Shail Kr.Dwivedi, AAG Ms. Niranjana Singh, Adv, . Mr. Kamlendra Mishra ,Adv, Mr. P.V. Yogeswaran ,Adv, Mr. P.V. Dinesh ,Adv, Dr.Rajeev Dhavan, Sr.Adv, . Mr.Gopal Singh, Adv, . Mr.Ashok K.Mahajan, Adv, . Mr.Rajeev Sharma, Adv, . Mr.Gopal Prasad, Adv, . Mr.Pramod Dayal, Adv, . Ms.Sumita Hazarika, Adv, . Mr.R.Ayyam Perumal, Adv, . Mr.Manish Kr.Saran, Adv, . Mr.T.Harish Kumar, Adv, JUDGMENT K.G. BALAKRISHNAN, CJI 1. In these writ petitions, we are required to examine the constitutional validity of some aspects of the reservation policy prescribed for the composition of elected local self-government institutions. In particular, the contentions have concentrated on the provisions that enable reservations in favour of backward classes and those which contemplate the reservation of chairperson positions in the elected local self-government institutions. These provisions have been challenged as being violative of principles such as equality and democr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them. 3. Accordingly, it is proposed to add a new Part relating to Panchayats in the Constitution to provide for, among other things, Gram Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the Offices of Chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of 5 years for Panchayats and holding elections within a period of 6 months in the event of supersession of any Panchayat; In the same vein, we can refer to the following extracts from the Statement of Objects and Reasons for the 74th Amendment: 1. In many States, local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent constituencies in a Panchayat. (2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. (4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide: Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total popu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have effect on the expiration of the period specified in Article 334. (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens. (emphasis supplied) 5. The overarching scheme of Article 243-D and 243-T is to ensure the fair representation of social diversity in the composition of elected local bodies so as to contribute to the empowerment of the traditionally weaker sections in society. The preferred means for pursuing this policy is the reservation of seats and chairperson positions in favour of Scheduled Castes (SC), Scheduled Tribes (ST), women and backward class candidates. Article 243-D(1) and Article 243-T(1) are analogous since they lay down that the reservation of seats in favour of SC and ST candidates should be based on the proportion between the population belonging to these categories and the total population of the area in question. Needless to say, the State Governments are empowered to determine the extent of such reservations on the basis of empirical data such as population surveys amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which provide that the reservation of seats and chairperson positions in favour of SC and ST categories would operate for the period contemplated under Article 334. It must be stressed here that there is no such time-limit for the reservations made in favour of women, implying that they will operate in perpetuity. Article 243-D(6) and Article 243-T(6) contemplate the power of State Legislatures to reserve seats as well as chairperson positions in favour of a backward class of citizens . Unlike the fore-mentioned provisions that deal with reservations in favour of SC, ST and women candidates, Article 243-D(6) and Article 243-T(6) do not explicitly provide guidance on the quantum of reservations. In the absence of any explicit criteria or limits, it can be assumed that reservation policies contemplated under Article 243-D(6) will ordinarily be guided by the standard of proportionate representation. 6. In light of the submissions that have been paraphrased in the subsequent paragraphs, the contentious issues in this case can be framed in the following manner: (i). Whether Article 243-D(6) and Article 243-T(6) are constitutionally valid since they enable reservations in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of women, which has been enabled by Art. 243-D(2) and (3) with respect to rural local bodies, and by Art. 243-T(2) and (3) with respect to urban local bodies. However, this challenge was given up during the course of the arguments before this Court and the thrust of the petitioner s arguments was directed towards the following two aspects: Firstly, objections were raised against Art. 243-D(6) and Art. 243-T(6) since they enable reservations of seats and chairperson posts in favour of backward classes, without any guidance on how to identify these beneficiaries and the quantum of reservations. Secondly, it was argued that the reservation of chairperson posts in the manner contemplated under Art. 243-D(4) and 243-T(4) is unconstitutional, irrespective of whether these reservations are implemented on a rotational basis and irrespective of whether the beneficiaries are SCs, STs and women. The objection was directed against the very principle of reserving chairperson posts in elected local bodies. 9. The common thread running across the petitioners arguments was that these provisions which were inserted into the Constitution by way of the 73rd and 74th Amendments, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the already well represented OBC groups would not serve the stated objective of empowering the weaker sections in society. Shri M. Rama Jois, learned senior counsel drew a distinction between the context of reservations in the matter of elections on one hand and in the matter of education and employment on the other hand. It was reasoned that persons belonging to Socially and Educationally Backward Communities (SEBCs) [in respect of Article 15(4) and 15(5)] and under-represented Backward Classes [in respect of Article 16(4)] are legitimately given reservations since they are in a disadvantageous position when they compete for selection to educational courses and government jobs, respectively. This disadvantage is linked to backwardness in the social and economic sense, owing to which persons belonging to these groups may not have the resources or the awareness needed to gain access to higher education or public employment. However, the fact of social and economic backwardness does not necessarily act as a barrier to political participation. Stressing on the distinction between selection and election , Shri Jois contended that the OBCs did not need reservation benefits because e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a limited section of the intended beneficiaries, thereby frustrating the objectives of the reservation policy in the first place. We were also alerted to the possibility that State Governments could confer reservation benefits in favour of particular OBC groups as a means of garnering political support from these groups, instead of ameliorating backwardness in the social and economic sense. In support of this contention, it was pointed out that the Karnataka Panchayati Raj Act had provided for reservations that were in excess of the 50% upper ceiling prescribed for communal reservations in past judicial decisions. [See: M.R. Balaji v. State of Mysore, AIR 1963 SC 649; Indra Sawhney v. Union of India , 1992 Supp 3 SCC 217] 14. With respect to Chairperson positions in the elected local bodies, it was argued that they were in the nature of single posts and reserving them amounted to cent-per-cent reservation, thereby offending the equality clause. The objection was against the very principle of reserving chairperson posts, irrespective of the identity of the beneficiaries and even when such posts are reserved by way of rotation. This argument was buttressed with referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aternity among the citizens. In the petitioner s submissions, it has been reasoned that the objective of empowering the weaker sections through political participation will be better served if a larger number of candidates belonging to these sections were nominated by political parties to stand for elections. Based on these submissions, the petitioners in W.P. (C) No. 356/1994 have prayed for the striking down of Articles 243-D(4) and 243-T(4) since they enable reservations of chairperson posts in elected local bodies, as well as Articles 243-D(6) and 243-T(6) which enable reservation of seats and chairperson posts in favour of backward classes. In relation to the same, the petitioners have also sought the invalidation of the impugned State legislations, in so far as they provide for excessive reservation in favour of backward classes and the reservation of chairperson posts. 17. In W.P. 517/2005, Shri Salman Khurshid, learned senior counsel appearing on behalf of the petitioners has confined their contentions to two aspects. With regard to reservations in favour of OBCs in the State of Uttar Pradesh, it has been contended that the aggregate reservations should not exceed the up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c employment, it was argued that Art. 243-D(4) and Art. 243-T(4) come into conflict with Art. 16(4) since the latter did not contemplate reservations of single posts. With regard to the aims and objectives of local self-government, it was contended that the reservation of chairperson posts placed undue restrictions on the rights of candidates belonging to the general category. It was reasoned that unlike candidates in elections to the Lok Sabha and the State Legislative Assemblies who are free to contest from different constituencies, candidates in elections for local bodies will not ordinarily contest in areas other than those where they are registered as voters. If such migration were to frequently take place, then that would defeat the objectives of local self-government since the overarching objective is to empower elected representatives who are sufficiently interested in the welfare of local communities and are accountable to them. Hence, the reservation of chairperson posts in panchayats can have the effect of unduly preventing persons belonging to the unreserved categories from contesting these elections. In support of their contentions, the petitioners have cited some High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrols such as those provided in the Representation of People Act, 1951 among others. Undoubtedly, reservations in elected local bodies do place restrictions on the rights of political participation of persons who do not belong to the reserved categories. In this respect, the petitioners have contended that this Court should examine the reasonableness of such restrictions with regard to the objective of ensuring free and fair elections [as observed in Indira Gandhi vs. Raj Narain, 1975 Supp SCC 1, at Para. 213] as well as the expanded understanding of Article 21 of the Constitution. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS 22. Since the constitutionality of some clauses in Art. 243-D and Art. 243-T have been contested in this case, notices were issued to all the State governments which had either enacted fresh legislations or amended existing legislations in accordance with the mandate of the 73rd and 74th Amendments. While all of these State Governments were impleaded as respondents in this case, we had the benefit of listening to the oral arguments presented by Shri Rajeev Dhavan, Sr. Adv., who appeared on behalf of the State of Bihar, Shri Dinesh Dwivedi, Sr. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al diversity in local bodies and more accountability between the elected representatives and the voters. The respondents submission is that the provisions enabling reservations in panchayats and municipalities are in consonance with these objectives and that the standard of judicial review over them should be that of proportionality. 24. It was further contended that the equality clause should not be viewed in a strait-jacketed manner and that it should account for the equality of expectations as well as equality of outcomes in the context of political representation at the grassroots level. This means that while there is an expectation of equal distribution of political power in representative institutions, we also have to factor in how the distribution of power has a bearing on the substantive outcomes and results for the electorate. In this case, we are dealing with considerations of horizontal equality in a political sense. Owing to the complex patterns of inequality in our society, there may often be a need to depart from the standard of formal equality when it comes to expectations about distribution of political power. Affirmative action is designed to pursue the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in judicial decisions dealing with reservations in education and employment. While the considerations behind the same cannot be readily extended to the domain of political representation at the grassroots level, it was argued that even if they were to be applied, the decision in Indra Sawhney decision had contemplated an exception to the 50% norm in extraordinary situations [See 1992 Supp (3) SCC 217, at Para. 810]. To support this contention, it was pointed out that reservations in excess of 50% had been permitted in the Fifth and Sixth Scheduled Areas and more importantly the Legislative Assemblies of some States have reservations that are far in excess of 50% of the number of seats. With respect to the State legislations under challenge, it was argued that the 50% ceiling would not be crossed under most of them since it is only the vertical reservations (i.e. on communal lines in favour of SC/ST/OBCs) that are taken into consideration for this purpose. Even though there is a 33% reservation in favour of women in elected local bodies, the same is in the nature of a horizontal reservation which intersects with the vertical reservations in favour of SC/ST/OBC. In such a sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions, it could not be asserted that reservations in favour of weaker sections had not been contemplated before that point of time. To support this line of reasoning, the written submissions submitted on behalf of the Union of India have traced the evolution of local self-government institutions from the pre-constitutional period to the post-independence period. After referring to the main recommendations of the Balwantrai Mehta Committee Report (1957) and the Ashok Mehta Committee Report (1978) which were in favour of democratic decentralisation, it was urged that reservations in local self-government were intended to enable the adequate representation of previously excluded and marginalized groups while also giving them the opportunity to play leadership roles. The learned SG further contended that the spirit behind Arts. 243-D and 243-T was akin to Arts. 15(3), 15(4) and 16(4) which have enabled different forms of affirmative action in order to pursue the goal of substantive equality. In this sense, the learned SG has taken a definitive stand by suggesting that the phrase backward classes which appears in Art. 243-D(6) and 243-T(6) should be coterminus with the Socially a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution of local bodies has been granted a constitutional protection and Article 243D mandates that a seat be reserved for the Scheduled Caste and Scheduled Tribe in every Panchayat and Sub-article (4) of the said Article 243D also directs that the offices of the Chairpersons in the panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. Therefore, the reservation in the local bodies like the Village Panchayat is not governed by Article 16(4), which speaks about the reservation in the public employment, but a separate constitutional power which directs the reservation in such local bodies. We are of course aware of the fact that some decisions in the past have examined the validity of reservations in local self-government by applying the principles evolved in relation to education and employment. 31. In this respect, we are in partial agreement with one of the submissions made by Shri M. Rama Jois that the nature of disadvantages which restrict access to education and employment cannot be readily equated with disadvantages in the realm of politi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local-self government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local self-government are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the creamy layer in the context of political representation. There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the creamy layer may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government. At the level of panchayats, the empowerment of the elected individual i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislations can indeed be the subject-matter of specific challenges before the Courts. However, the same does not justify the striking down of Art. 243-D(6) and 243-T(6) which are Constitutional provisions that enable reservations in favour of backward classes in the first place. As far as the challenge against the various State legislations is concerned, we were not provided with adequate materials or argumentation that could help us to make a decision about the same. The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Art. 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against overbreadth. In respect of the objections against the Karnataka Panchayati Raj Act, 1993, all that we can refer to is the Chinnappa Reddy Commission Report (1990) which reflects the position as it existed twenty years ago. In the absence of updated empirical data, it is well nigh impossible for the Courts to decide whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for women belonging to the same. This means that seats earmarked for women belonging to the general category are not accounted for if one has to gauge whether the upper ceiling of 50% has been breached. 38. Shri Rajeev Dhavan had contended that since the context of local self-government is different from education and employment, the 50% ceiling for vertical reservations which was prescribed in Indra Sawhney (supra.), cannot be blindly imported since that case dealt with reservations in government jobs. It was further contended that the same decision had recognised the need for exceptional treatment in some circumstances, which is evident from the following words (at Paras. 809, 810): 809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%. 810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being put of the mainstream of nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also providing that one-third of all chairperson positions in each tier of the Panchayati Raj Institutions would be reserved in favour of women. As described earlier, the considerations behind the provisions of Article 243-D cannot be readily compared with those of Article 16(4) which is the basis for reservations in public employment. It is a settled principle in the domain of service law that single posts cannot be reserved under the scheme of Article 16(4) and the petitioners have rightly pointed out to some precedents in support of their contention. However, the same proposition cannot be readily extended to strike down reservations for chairperson positions in Panchayats. This is because Chairperson positions should not be viewed as solitary seats by themselves for the purpose of reservation. Instead, the frame of reference is the entire pool of Chairperson positions in each tier of the three levels of Panchayati Raj Institutions in the entire State. Out of this pool of seats which is computed across panchayats in the whole state, the number of offices that are to be reserved in favour of Scheduled Castes and Scheduled Tribes is to be determined on the basis of the proportion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eservation of chairperson posts in favour of Scheduled Castes, Scheduled Tribes and women. However, there are no further specifications to guide the reservation of chairperson positions in urban areas. While it is not possible for us to ascertain the legislative intent behind the same, one can perhaps theorise that there was an assumption that the intended beneficiaries are in a relatively better-off position to overcome barriers to political participation in urban local bodies, when compared with rural local bodies. 43. It was also contended that since chairpersons of Panchayats and Municipalities are entrusted with executive powers, reserving these posts could prove to be the precursor for reservations of executive offices at higher levels of government. It was even suggested that the reservation of chairperson posts was akin to reserving the posts of Chief Minister and Prime Minister at the State and National level, respectively. In our opinion, this analogy with the higher levels of government is misplaced. The offices of chairpersons in Panchayats and Municipalities are reserved as a measure of protective discrimination, so as to enable the weaker sections to assert their v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh legislative means. On this point, we can refer to the following observations made by R.M. Sahai, J. in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly , (1992) 4 SCC 80, Para. 2: Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes, or a political right or privilege and not a natural , absolute or vested right . Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. Right to remove an elected representative, too, must stem out of the statute as in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers . Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In this respect, it may be noticed that the Constitution empowers the Election Commission of India to prepare electoral rolls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hairperson posts, mostly on the premise that this does not lead to the actual empowerment of the intended beneficiaries, since they are still dominated by the traditionally powerful sections. Especially in the case of elected women representatives at the local level, it is often argued that the real power is exercised by the male members of their families. We are also alert to the frequent reports of instances where women representatives have asserted themselves, thereby inviting the wrath of the retrograde patriarchial society. However, there are also increasing reports about success stories which show that enhancing women s participation in local self-government has expanded social welfare. Irrespective of such concerns about the efficacy of reservations in local self-government, it is not proper for the judiciary to second-guess a social welfare measure that has been incorporated by way of a constitutional amendment. In light of these considerations, we reject the challenge in respect of the constitutional validity of Art. 243-D(4) and 243-T(4). CONCLUSION 48. In view of the above, our conclusions are:- (i) The nature and purpose of reservations in the context of loc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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