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DR. K. KRISHNA MURTHY AND ORS. Versus UNION OF INDIA AND ANR.

2010 (5) TMI 917 - SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) NO. 356 OF 1994, W.P. (C) NOS. 245 OF 1995 AND 517 OF 2005 - Dated:- 11-5-2010 - K.G. BALAKRISHNAN, R.V. RAVEENDRAN, D.K. JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ. For The Petitioner : Mr.Rama Jois, Sr.Adv., Mr. Naveen R. Nath,Adv., Mr.Salman Khurshid, Sr.Adv., Mr.Rakesh K.Khanna, Sr.ADv., Mr Vinay Kumar Garg, Adv., Mr. Naveen R. Nath, Adv., For The Respondent : Mr.Gopal Subramanium, S.G., Mr. B. Krishna Prasad ,Adv, Mrs.Anil Katiyar, Adv., Mrs.Sushma Suri, Adv., Mr.B.V.Bal .....

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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 Ha .....

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irperson positions in the elected local self-government institutions. These provisions have been challenged as being violative of principles such as equality and democracy, which are considered to be part of the basic structure doctrine. 2. The Constitution (Seventy-third) Amendment Act, 1992 [hereinafter 73rd Amendment ] and the Constitution (Seventyfourth) Amendment Act, 1992 [hereinafter 74th Amendment ] had inserted Part IX and Part IX-A into the constitutional text thereby contemplating the .....

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ely those of Gram Panchayats (for each village, or group of small villages), Panchayat Samitis (at the block level) and the Zilla Parishads (at the District level). For urban areas, Part IX-A prescribed the constitution of Nagar Panchayats (for areas in transition from a rural area to an urban area), Municipal Councils (for smaller urban areas) and Municipal Corporations (for a larger urban area). 3. To better appreciate the legislative intent, it would be instructive to refer to the following e .....

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ution of powers and lack of financial resources. 2. Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the experience in the last forty years and in view of the short-comings which have been observed, it is considered that there is an imperative .....

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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 ex .....

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ating to Urban Local Bodies are incorporated in the Constitution, particularly for - (i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to - (a) the functions and taxation powers; and (b) arrangements for revenue sharing (ii) ensuring regular conduct of elections; (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes .....

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f which not less than one-third shall be for women; … 4. Before outlining and addressing the contentions advanced on behalf of the petitioners and the respondents, it will be useful to survey the constitutional provisions that have been called into question. The rival contentions relate to Article 243-D(4) and 243-T(4) which contemplate the reservation of chairperson posts, as well as Article 243-D(6) and 243-T(6) which enable reservations in favour of backward classes. With respect to th .....

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to the total population of that area and such seats may be allotted by rotation to different 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 di .....

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hayats 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 population of the State: Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved un .....

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ayats at any level in favour of backward class of citizens. (emphasis supplied) Similarly, the composition of Municipalities is guided by the reservation policy contemplated in Article 243-T: 243-T. Reservation of seats. - (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the .....

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r women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. (4) The offices of Chairpersons in the Municipalities 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. (5) The reservation of seats under .....

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d 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 .....

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he pool of seats reserved for SC and ST candidates, at least one-third of such seats should be reserved for women belonging to those categories. Hence, there is an intersection between the reservations in favour of women on one hand and those in favour of SC/STs on the other hand. ·With respect to reservations in favour of women, Article 243- D(3) and Article 243-T(3) lay down that at least one-third of the total number of seats in the local bodies should be reserved for women. On the fac .....

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en candidates. In the case of panchayats, the first proviso to Article 243-D(4) states that the aggregate number of chairperson positions reserved in favour of SC and ST candidates in an entire state should be based on the proportion between the population belonging to these categories and the total population. With all the chairperson positions at each level of the panchayats in an entire State as the frame of reference, the second proviso to Article 243-D(4) states that one-third of these offi .....

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rperson positions in Municipalities. This is a notable distinction between the otherwise analogous schemes prescribed in Article 243-D and Article 243-T. ·It is also pertinent to take note of Article 243-D(5) and Article 243-T(5), both of 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 fa .....

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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 favour of backward classes for the purpose of occupying seats .....

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well as Clauses (2)-(6) of Art. 243-T. These were challenged in conjunction with some provisions of the Karnataka Panchayati Raj Act, 1993 which provided for the reservation of seats and chairperson posts in favour of SCs, STs, women and backward classes. The impugned sections of that statute reserved 15% of the seats in Panchayats in favour of SCs, 3% in favour of STs, 33% in favour of women and 33% in favour of other backward classes [Section 5 for Gram Panchayats, Section 123 for Taluk Panch .....

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964 [Sections 11, 14(2)(A) and 352(5) of the said Act] and the Karnataka Municipal Corporations Act, 1976 [Section 7 and 10 of the said Act]. 8. The petitioners did not object to the proportionate reservation of seats in favour of Scheduled Castes and Scheduled Tribes, as contemplated by Art. 243-D(1) and 243-T(1) respectively. It was stated that reservations in favour of SC/STs were consistent with the intent of the framers of the Constitution, since reservations in favour of these groups had b .....

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, 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 ch .....

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e 73rd and 74th Amendments, are violative of principles such as equality, democracy and fraternity, which are part of the basic structure doctrine. The decision in I.R. Coelho v. State Tamil Nadu [(2007) 2 SCC 1] had clarified that the constitutional amendments which have been placed in the Ninth Schedule after the Keshavananda Bharati decision [(1973) 4 SCC 425] are not immune from judicial review. Even though there is some uncertainty as to whether constitutional amendments can be scrutinized .....

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hayati Raj Act, 1993 provides for the aggregate reservation of nearly 84% of the seats in Panchayats, which is excessive and violative of the equality clause. Especially with regard to reservations in favour of backward classes, it was argued that the same does not meet the test of reasonable classification , thereby falling foul of Article 14. Pointing to the caste groups which have been listed as Other Backward Classes (OBCs) in the State of Karnataka, it was reasoned that even if they are ass .....

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ogy was drawn with reservations for government jobs under Article 16(4), which presupposes backwardness as well as the inadequate representation of the beneficiary group. 11. Next, it was urged that the reservations in favour of OBCs were solely on the grounds of caste, thereby violating the anti-discrimination clause found in Article 15 of the Constitution. It was further suggested that reservations in favour of the already well represented OBC groups would not serve the stated objective of emp .....

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n 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 distincti .....

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antage when competing with candidates from relatively richer backgrounds. 12. It was also contended that reserving seats and chairperson posts in favour of OBCs was an unjustified departure from the intent of the framers of the Constitution. As noted earlier, the framers conferred reservation benefits on SCs and STs for the purpose of elections to the Lok Sabha and the State Legislative Assemblies (under Arts. 330 and 332) which are time-bound in accordance with Article 334. Given this backgroun .....

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f the Constitution. It was urged that since the framers had not explicitly provided for OBC reservations in 1950, it was untenable to introduce them by way of constitutional amendments in 1993. 13. Another set of concerns touched on the overbreadth in the identification of OBCs for the purpose of the reservations conferred by the impugned State legislations. It was contended that even among the listed OBC groups, one cannot assume the same degree of backwardness for the entire group. There are b .....

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ornered 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 pro .....

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ery 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 references to past decisions which have struck down the reservations of single posts in the context of public employment [See: Post Graduate Institute of Medical Education and Research V. K.L. Narasimhan, (1997) 6 SCC 283]. It was further argued that the chairperson positions in the Panchayats and Municipalitie .....

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g the principle of democracy. It was argued that excessive reservations placed unfair limitations on the rights of political participation of persons belonging to the unreserved categories. In particular, the reservation of seats and chairperson positions curtailed the right to vote, the right to sponsor candidates of one s choice and the right to contest elections among other aspects. It was contended that such restrictions were in conflict with the principle of universal adult franchise (under .....

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icular village, thereby forcing voters to re-elect candidates belonging to the reserved categories despite dissatisfaction with their performance. 16. Lastly, Shri M. Rama Jois argued that reservations in the electoral arena would only lead to more divisiveness at the level of the local community as well as at the national level. In the long run, reservations designed on caste lines are likely to become instruments of political favouritism, thereby fanning resentment among the people. This would .....

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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 .....

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pect of their objections against the reservation of chairperson posts in elected local bodies. Hence the petitioners in W.P. (C) No. 517/2005 have also contested the constitutional validity of Article 243-D(4) and Article 243-T(4). 18. The specific challenge is directed against Sections 11A and 12 of the Uttar Pradesh Panchayat Raj Act, 1947 read with the relevant rules as well as Sections 6A, 7A, 18A and 19A of the Uttar Pradesh Kshetra Panchayat and Zilla Panchayat Act, 1961 read with the rele .....

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be reasonably developed to argue that there is no need for reserving seats in elected local bodies for communities that are already well represented in the political space and do not face serious hurdles in respect of political participation. Furthermore, it was contended that there was no provision for the exclusion of the creamy layer in respect of the reservations for OBCs in panchayats. In this respect, Shri Salman Khurshid stressed on the need for the State legislations to be modified in o .....

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nst the very principle of reserving chairperson posts, irrespective of whether it is in favour of SCs, STs, women or OBCs. By drawing an analogy with solitary posts in public 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 rig .....

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wer 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 Court decisions which have struck down the reservation of chairperson posts in panchayats, namely those reported as Janardhan .....

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rnatives available to them. However, such alternatives are not open to those who want to contest elections to become members of Panchayats in the areas where they reside. In the petitioners view, this is not only an unfair limitation on the rights of persons belonging to the general category, but also a measure that frustrates the pursuit of democratic decentralization. 21. Shri Salman Khurshid, further submitted that the courts have to strive for a balance between the often competing considerat .....

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al participation such as the right to vote, the right to nominate candidates and the right to contest elections. It may be recalled that the right to vote has been held to be a statutory right and not a fundamental right and the same position has been consistently upheld in subsequent decisions. [See decision in N.P. Ponnuswamy v. Returning Officer, 1952 SCR 218, which has been followed in Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691, Mohan Lal Tripathi v. District Magistrate, Rai Bareilly, (1992 .....

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ct, 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 .....

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v., who appeared for the State of Karnataka and Shri R. Shanmugasundaram, Sr. Adv., who represented the Union Territory of Pondicherry. Apart from the learned senior counsels who represented the various State Governments, we were also addressed by Shri Gopal Subramanium, the Additional Solicitor-General [now Solicitor-General of India] who voiced the views of the Union of India. 23. The respondents have of course defended the constitutional validity of reservations in favour of backward classes .....

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ended that the basic structure is not co-extensive with the fundamental rights in their entirety and hence it would be wrong to scrutinize the validity of Art. 243-D and 243-T on the basis of principles which have been evolved in relation to the reservation benefits enabled by Articles 15(4) and 16(4). A distinction was drawn between a constitutional amendment which modifies the scope of fundamental rights and an abrogation of the basic structure. Pointing out that the nature and purpose of rese .....

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standard of deference in comparison to statutory classifications. In this case, the test of reasonable classification cannot be applied mechanically and due regard must be shown to the underlying objectives of democratic decentralization such as the empowerment of weaker sections, a fair representation of social diversity in local bodies and more accountability between the elected representatives and the voters. The respondents submission is that the provisions enabling reservations in panchayat .....

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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 .....

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ring of State power with the previously marginalized sections and also to empower them so as to enable a confrontation with the existing patterns of social discrimination. 25. Proceeding on the basis of this theoretical formulation, Shri Rajeev Dhavan has defended the constitutional validity of reservations in favour of backward classes as well as the reservation of chairperson posts. In response to the petitioner s arguments that the reservations curtailed the rights of political participation .....

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he context of education and employment, it was contended that Art. 243-D(6) and Art. 243-T(6) are merely enabling provisions and cannot be struck down as being in violation of the equality clause. It was reasoned that even though these provisions did not contain any guidance as to the quantum of reservations, it was eventually up to the State Governments to investigate the existence of backwardness and to confer reservation benefits accordingly. In that respect, this case presents a good opportu .....

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hind 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 Assembl .....

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on which intersects with the vertical reservations in favour of SC/ST/OBC. In such a scenario, the seats occupied by women belonging to the general category cannot be computed for the purpose of ascertaining whether the 50% upper ceiling has been breached. 27. In response to the challenge against the very principle of reserving Chairperson posts, it has been contended that the same is in the nature of protective discrimination. The respondents have strongly refuted the petitioners submission tha .....

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positions in local self-government could prove to be the precursor for reservation of executive positions in higher levels of government, it was stated that the considerations applicable in the local setting are very different from those that prevail at the State and the National level. At higher levels of government, elected representatives from the traditionally weaker sections can rely on the support of mainstream political parties if they face undue pressures and prejudices. However, at the .....

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tutions and that they had chosen to confine the same to SCs and STs (under Arts. 330 and 332). To counter this line of reasoning, it was submitted that the provisions incorporated by the framers did not preclude the expansion of reservation benefits in favour of backward classes by means of a subsequent constitutional amendment. It was pointed out that even though the 73rd and 74th Amendments enacted in 1993 had given constitutional recognition to the local self-government institutions, it could .....

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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 sens .....

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ine. In this respect, the gist of the submission is that the reservation policy enabled by Arts. 243-D and 243-T will enhance the political participation of hitherto weaker sections, thereby contributing to their welfare in the long run. In response to the arguments about limitations on the political participation of persons who do not belong to the reserved categories, it was reiterated that the right to cast votes and to contest elections are not fundamental rights and hence they can be subjec .....

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plated by Articles 15(4) and 16(4) cannot be mechanically applied in the context of reservations enabled by Article 243-D and 243-T. In this respect, we endorse the proposition that Article 243-D and 243-T form a distinct and independent constitutional basis for reservations in local self-government institutions, the nature and purpose of which is different from the reservation policies designed to improve access to higher education and public employment, as contemplated under Article 15(4) and .....

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nty-third and seventy-fourth Constitutional amendments, the constitution 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 Legislatu .....

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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 political representation. To be sure, backwardness in the social and economic sense does not necessarily imply political backwardness. However, the petitioner s emphasis on the distinction between selection (in case of education and employm .....

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mance. Since it is felt that applicants belonging to the SC/ST/OBC categories among others are at a disadvantage when they compete through these methods, a level-playing field is sought to be created by way of conferring reservation benefits. 32. In the domain of political participation, there can be no objective parameters to determine who is more likely to get elected to representative institutions at any level. The choices of voters are not guided by an objective assessment of a candidate s m .....

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e conceivable that in some localized settings, backwardness in the social and economic sense can also act as a barrier to effective political participation and representation. When it comes to creating a level-playing field for the purpose of elections to local bodies, backwardness in the social and economic sense can indeed be one of the criteria for conferring reservation benefits. 33. It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue .....

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ance 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 grou .....

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vely better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities. We can now attempt to provide answers to the contentious issues. (i). VALIDITY OF RESERVATIONS IN FAVOUR OF BACKWARD CLASSES 34. With respect to the challenge against the constitutional validity of Art. 243- .....

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d on State Legislatures to design and confer reservation benefits in favour of backward classes. It is but natural that questions will arise in respect of the exercise of a discretionary power. The petitioners in this case have objected to reservations in favour of OBCs to the tune of 33% in the State of Karnataka and 27% in the State of Uttar Pradesh. Similar objections can be raised with regard to some of the other State legislations as well. The gist of the objection is that since most of the .....

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nother. In light of these contentions, it is obvious that the petitioner s real concern is with overbreadth in the State legislations. 35. There is no doubt in our minds that excessive and disproportionate reservations provided by State 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 i .....

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on 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 reservations in favour of OBC groups are proportionate are not. .....

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with political backwardness. In this respect, the State Governments are well advised to reconfigure their reservation policies, wherein the beneficiaries under Art. 243-D(6) and 243-T(6) need not necessarily be coterminus with the Socially and Educationally Backward Classes (SEBCs) [for the purpose of Art. 15(4)] or even the Backward classes that are under-represented in government jobs [for the purpose of Art. 16(4)]. It would be safe to say that not all of the groups which have been given rese .....

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-government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical reservations in favour of SC/ST/OBCs should not be breached. On the question of breaching this upper ceiling, the arguments made by the petitioners were a little misconceived since they had accounted for vertical reservations in favour of SC/ST/OBCs as well as horizontal reservations in favour of women to ass .....

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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 wo .....

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mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. 39. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation. For instance, the Legislative Assemblies of the States of Arunachal Pradesh, Nagaland, Meg .....

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ons in favour of Scheduled Tribes that exceed 50% of the seats in panchayats located in Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SC/ST/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some o .....

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; Krishna Kumar Mishra v. State of Bihar, AIR 1996 Pat 112], wherein it had been held that reservations of Chairperson posts in Panchayats would not be permissible since the same was tantamount to the reservation of solitary seats. However, Article 243-D(4) provides a clear Constitutional basis for reserving the Chairperson positions in favour of SC and STs (in a proportionate manner) while also providing that one-third of all chairperson positions in each tier of the Panchayati Raj Institutions .....

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y 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 favou .....

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heduled 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 population of the .....

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state, the possibility of cent-per-cent reservation does not arise. For this purpose, a loose analogy can be drawn with reservations in favour of Scheduled Castes and Scheduled Tribes for the purpose of elections to the Lok Sabha and the respective Vidhan Sabhas. Before elections to these bodies, the Election Commission earmarks some electoral constituencies as those which are reserved for candidates belonging to the SC/ST categories. For the purpose of these reservations, the frame of reference .....

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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 .....

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. 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 voice against entrenched interests at the local level. The patterns of disadvantage and discrimination faced by persons belonging to the weaker sections are more pervasive at the local level. Unlike elected representatives in the Lok Sabha and the Vidhan Sabha who can fall back on the support of mainstream political parties as .....

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icant criticism of the reservation of chairperson posts in local bodies is that it amounts to an unreasonable limitation on the rights of political participation of persons who do not belong to the reserved categories. As enumerated in the petitioner s submissions, the rights of political participation broadly include the right of a citizen to vote for a candidate of his/her choice and right of citizens to contest elections for a public office. In the context of the present case, these would inc .....

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al bodies to contest elections in territorial constituencies other than those in which they reside. This line of argumentation was adopted in support of the contention that the reservation of chairperson posts is violative of the principles of democracy. 45. While the exercise of electoral franchise is an essential component of a liberal democracy, it is a well-settled principle in Indian law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, t .....

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es 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 .....

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, 1951 gives effect to the Constitutional guidance on the eligibility of persons to contest elections. This includes grounds that render persons ineligible from contesting elections such as that of a person not being a citizen of India, a person being of unsound mind, insolvency and the holding of an office of profit under the executive among others. It will suffice to say that there is no inherent right to contest elections since there are explicit legislative controls over the same. 46. The pe .....

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this case, we are dealing with an affirmative action measure and hence the test of proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and women does restrict the rights of political participation of persons from the unreserved categories to a certain extent. However, we feel that the test of reasonable classification is met in .....

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missions on behalf of the State of Bihar, p. 49] 47. There have of course been some arguments doubting the efficacy of reserving chairperson 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 .....

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hat 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 local self-government is considerably different from that of higher education and public employment. In this sense, Articles 243-D and Article 243-T form a distinct and independent cons .....

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