Union of
India Vs. Rakesh Kumar & Ors. [2010] INSC 39 (12 January 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE HURISDICTION CIVIL APPEAL NOS. 484-491
OF 2006 UNION OF INDIA, etc. ....APPELLANT Versus WITH Civil Appeal No. __ of
2010 (Arising out of SLP (C) No. 21123 OF 2005) Civil Appeal Nos. __ of 2010
(Arising out of SLP (C) No. 21124-25 OF 2005) Civil Appeal No. __ of 2010
(Arising out of SLP (C) No. 21129 OF 2005) Civil Appeal No. __ of 2010 (Arising
out of SLP (C) No. 21131 OF 2005) Civil Appeal No. __ of 2010 (Arising out of
SLP (C) No. 23887 OF 2005) Civil Appeal No. __ of 2010 (Arising out of SLP (C)
No. 2535 OF 2006) Civil Appeal No. __ of 2010 (Arising out of SLP (C) No. 3274
OF 2006) Civil Appeal No. __ of 2010 (Arising out of SLP (C) No. 6325 OF 2008)
K.G.
BALAKRISHNAN, CJI
1.
Leave granted.
2.
For a considerable period during the British Rule, special laws
were made applicable to certain `backward areas' in India that were
predominantly occupied by tribal people. These backward regions covered an area
of more than 1,20,000 square miles. However, the characteristics of these areas
and their populations varied widely. By Act XIV of 1874, Santhal Parganas and
Chutia Nagpur Division (now known as Chhotanagpur Division) were created and in
these `Scheduled districts', tribal communities were accorded a certain degree
of autonomy to regulate their affairs on the basis of their own conventions and
traditions. Many of these communities chose their leaders through an informal
consensus among other customary methods for selection.
When the
Constitution was enacted, these areas were designated as `Scheduled Areas'.
Article 244 of the Constitution explicitly states that the provisions of the
Fifth Schedule shall apply in respect of the administration and control of the
Scheduled Areas in any State other than the States of Assam, Meghalaya, Tripura
and Mizoram. The provisions of the Sixth Schedule guide the administration of
tribal areas in those states.
3.
Paragraph (4) of the Fifth Schedule states that there shall be in
each State having a "Schedule Area", a `Tribes Advisory Council'
consisting of not more than twenty members of whom, as nearly as may be, three-
fourths shall be the representatives of the Scheduled Tribes in the 2
Legislative Assembly of the State. It was the duty of the `Tribes Advisory
Council' to advise on matters pertaining to the welfare and advancement of the
Scheduled Tribes in the State. Paragraph (5) of the Fifth Schedule states that
the Governor of the State may by public notification direct that any particular
Act of Parliament or the Legislature of the State shall not apply to a
Scheduled Area or would apply subject to such exceptions and modifications as
he may specify. The Governor of the State may also make regulations for the
peace and good government of any area in a State which is for the time being a
Scheduled Area. The Governor of the State has also been given the power to
repeal or amend any existing Act of Parliament or of the Legislature of the
State which is for the time being applicable to the area in question.
4.
Hence, it is evident that the framers' intent behind including the
Fifth Schedule was that of a separate administrative scheme for Scheduled Areas
in order to address the special needs of tribal communities.
During
the debates on the floor of the Constituent Assembly, some members had
criticized such differential treatment for Scheduled Tribes.
In
response to such criticisms, Shri K.M. Munshi had said that `Adivasis' or
tribes were many in number belonging to different "ethnic, religious and
social groups" and he explained the object of the Drafting Committee's
proposals in the following words:
3
"We want that the Scheduled Tribes in the whole country should be
protected from the destructive impact of races possessing a higher and more
aggressive culture and should be encouraged to develop their own autonomous
life; at the same time we want them to take a larger part in the life of the
country adopted. They should not be isolated communities or little republics to
be perpetuated for ever..... object is to maintain them as little unconnected
communities which might develop into different groups from the rest of the
country..... and that these tribes should be absorbed in the national life of
the country."
5.
In exercise of the powers conferred by paragraph 6(i) of the Fifth
Schedule to the Constitution of India, the President of India made an Order
known as The Scheduled Area (Part A States) Order, 1950. With respect to the
then combined State of Bihar, this Order was applied to Ranchi district,
Singhbhum district (excluding Dalbhum sub-division) and Santhal Pargana
district. The following table shows the chronology of the governmental measures
which have identified Scheduled Areas in the territories that lie in the
present-day State of Jharkhand:
1874
Scheduled Districts Act, 1874 Declared the Santhal Parganas and the (Act XIV of
1874) passed during Chutia Nagpur Division (now known as the colonial period
`Chhotanagpur Division') as `scheduled districts' in the erstwhile province of
Bengal. These areas now come within the territory of the State of Jharkhand.
1950
After independence, The In pursuance of this Order, Ranchi President of India
had made an district, Singhbhum district (excluding order known as The
Scheduled Dalbhum sub-division), Santhal Pargana Area (Part A States) Order,
1950 district (excluding Godda and Deoghar in exercise of the powers
sub-divisions) and Latehar sub-division conferred by Paragraph 6(ii) of of
Palamau district were declared to be the Fifth Schedule to the Scheduled areas.
Constitution
of India.
4 1977
The 1950 Order was rescinded By the said Order, Ranchi district, and replaced
by the Scheduled Singhbhum district, Latehar sub-division Areas (States of
Bihar, Gujarat, and Bhandaria block of Garhwa sub- Madhya Pradesh and Orissa)
division in Palamau district, Dumka;
Order,
1977 Pakur; Rajmahal and Jamatra sub- divisions and Sundarpahari and Boarijor
blocks of Godda sub-divisions in Santhal Pargana district were shown as
scheduled areas of the then combined State of Bihar, all of which now fall
within the territory of Jharkhand.
2003
Subsequent to the formation of Under the 2003 order, the following areas the
States of Jharkhand and in the State of Jharkhand have been Chhattisgarh, The
Scheduled declared as Scheduled Areas:
Areas
(States of Chhattisgarh, 1. Burhmu, Mandar, Chanho, Bero, Jharkhand and Madhya
Pradesh) Lapung, Namkom, Kanke, Order, 2003 was passed to Ormanjhi, Angara,
Silli, replace the 1977 order Sonahatu, Tamar, Bundu, Arki, Khunti, Murhu,
Karra, Torpa and Raniya blocks in Ranchi District.
2. Kisko,
Kuru, Lohardaga, Bhadra and Senha blocks in Lohardaga district
3.
Bishanpur, Ghaghra, Chainpur, Dumri, Raidih, Gumla, Sisai, Kagdara, Basiya and
Palkot blocks in Gumla District
4.
Simdega, Kolebira, Bano, Jaldega, Thethetangar, Kurdeng and Bolba blocks within
Simdega District.
5.
Barwadih, Manika, Balumath, Chandwa, Latehar, Garu and Mahuadaran blocks within
Latehar District
6.
Bhandariya block within Garhwa District
7.
Bandgaon, Chakradharpur, Sonuwa, Goyalkera, Mahoharpur, Noamundi, Jagannathpur,
Manghgaon, Kumardungi, Manjhari, Tatnagar, Jhinkpani, Tonto, Khutpani and
Chaibasa blocks within the West Singhbum District
8.
Govindpur (Rajnagar), Adityapur 5 (Ghamariya), Seraikela, Kharsaan, Kuchai,
Chandil, Ichagarh and Nimdih blocks within Seraikella Kharsawan District
9.
Golmuri-Jugslia, Patmada, Potka, Dumariya, Musabani, Ghatsila, Dhalbhumgarh,
Chakuliya and Bahragora blocks within East Singhbhum District
10. Sariyahat,
Jarmundi, Jama, Ramagarh, Gopikandar, Kathikund, Dumka, Sikripara, Raneshwar
and Masaliya blocks within Dumka District.
11.
Kundhit, Nala, Jamtara and Narayanpur blocks within Jamtara District
12.
Sahebganj, Boriyo, Taljhari, Rajmahal, Barharwa, Pathna and Barhet blocks
within Sahebganj District.
13.
Littipara, Amrapara, Hiranpur, Pakur, Maheshpur and Pakuriya blocks within
Pakur District
14.
Borijore and Sundarpahari blocks within Godda District.
2007
Subsequent to the impugned judgment of the Jharkhand High Court, the Government
of Jharkhand passed the Scheduled Areas (State of Jharkhand) Order, 2007 and
the same is presently in force.
Hence,
Tribes Advisory Councils had been constituted for these Scheduled areas since
the Panchayati Raj System had not been extended to them.
6.
By way of the Constitution (Seventy-Third Amendment) Act, 1992,
Part IX was inserted in the Constitution of India. Article 243B of Part IX of
the Constitution mandated that there shall be Panchayats at the village, intermediate
and district levels in accordance with the provisions of this Part. Article
243-C provides that the Legislature of a State may, by law, make provisions
with respect to the composition of Panchayats.
Detailed
provisions were made under Article 243-D enabling the reservation of seats for
Scheduled Castes, Scheduled Tribes, women and other backward classes. Article
243-M stated that nothing in this Part shall apply to the Scheduled Areas
referred to in clause (1), and the tribal areas referred to in clause (2), of
article 244.
7.
Two years after the 73rd Amendment Act, the Union Government had
appointed a Committee of Members of Parliament (MPs) and experts under the
Chairmanship of Sh. Dilip Singh Bhuria to undertake a detailed study and make
recommendations about whether the Panchayati raj system should be extended to
the Schedules Areas, as contemplated by Article 243-M(4)(b) of the
Constitution. The Committee submitted its report on 17.1.1995 and favoured
democratic decentralization in scheduled areas. It will be instructive to refer
to the following observations in the Bhuria Committee Report (at Para. 10):-
"Tribal life and economy, in the not too distant past, bore a harmonious
relationship with nature and its 7 endowment. It was an example of sustainable
development. But with the influx of outside population, it suffered grievous
blows. The colonial system was established on the basis of expropriation of the
natural and economic resources of tribal and other areas in the country.
Although, theoretically, there has been difference in the approach after the
departure of the colonial masters from Tribal areas, in practice, the
principles enunciated in Article 39 and other Directive Principles of State
Policy have to be followed more rigorously. On account of their simplicity arid
ignorance, over the decades the tribals have been dispossessed of their natural
and economic resources like land, forest, water, air, etc.. The dispossession
has not been confined to that through private parties. For the purpose of
promotion of general economic development projects, the State also has been
depriving them of the basis means of livelihood. These processes have been
operative since a long time causing human misery and socio-economic damage. No
reliable picture is yet available, for instance, we are not seized on the total
quantum of land alienated from the tribals both on private and State account
nor the number of families, clans or Tribes involved. This has compelled some
to perceive development as an agent of destruction. But since planned
development has been an article of faith with us, it has to be ensured that
implementation of the policies and programmes drawn up in tribal interest are
implemented in tribal interest. Since, by and large, the politico-bureaucratic
apparatus has failed in its endeavor, powers should be developed on the people
so that they can formulate programmed which suit them and implement them for
their own benefits."
It was
further observed, at Para. 30:
"The
group was further of the view that notwithstanding the fact that the areas
under consideration i.e. Scheduled Areas are expected to have majority of
tribal population, it is necessary to stipulate that the Panchayats therein
will have a 8 majority of Scheduled Tribes members. The reason is that the
Scheduled Areas were notified as such on account of majority of Scheduled Tribe
population, contiguity etc. In course of time, on account of influx of non-ST
population, in a few Scheduled Areas, the status of the ST population might have
been reduced to a minority. That should not be regarded as having altered the
overall character of the Scheduled Areas.
The
chairmen and vice-chairmen should belong to the Scheduled Tribes. One-third of
the seats should be reserved for women."
(Emphasis
supplied)
8.
Evidently, the Committee made three specific recommendations,
namely, (a) Panchayats in scheduled areas must have a majority of scheduled
tribes members, (b) Chairmen and Vice-Chairmen should belong to scheduled
tribes, and (c) one-third of the seats should be reserved for women. The
Committee felt that certain provisions in Part IX which pertained to Panchayati
Raj Institutions (PRIs) were wholesome and should be incorporated in the law to
be passed by the Parliament under Article 243-M(4)(b) with due regard for the
unique characteristics of tribal societies residing in the Scheduled Areas. It
was considered especially important to protect the interests of many tribal
societies which have their own customary laws, traditional practices and
community ethos. The Committee was also of the view that since the Scheduled
Areas and Tribal Areas are expected to have a majority of tribal population,
the Panchayats at different tiers should have a majority of members who belong
to the Scheduled Tribes (Hereinafter 9 `STs'). Furthermore, it was suggested
that both the chairman and vice- chairman should belong to this category as
well. The Committee also made recommendations in respect of the various
functions to be discharged by the Gram Sabhas in Tribal areas. They pertained
to safeguards for the rights of the tribal communities in matters relating to
land, water, forest and minor forest produce; enforcement of customary rights
such as grazing, fuel, fodder, minor forest produce, building materials; mobilization
for community welfare programmes and organising voluntary labour for community
works; promotion of solidarity and harmony among all sections of people;
consideration of the report on the audit of accounts of the Gram Panchayat;
women and child development; identification of the beneficiaries for poverty
alleviation and other programmes and host of other welfare measures such as
drinking water supply, sanitation, conservancy and drainage; public health
measures; village roads and streets; small tanks; maintenance of public
properties and community assets. The Committee gave detailed suggestions with
regard to the powers, functions and procedures of the Panchayati Raj
Institutions.
9.
Based on these recommendations, The Panchayats (Extension to the
Scheduled Areas) Act, 1996 [hereinafter `PESA'] was passed by the Parliament in
1996. The statement of Objects and Reasons of the PESA Act reads as follows:
10.
10 "There have been persistent demands from prominent leaders
of the Scheduled Areas for extending the provisions of Part IX of the
Constitution to these Areas so that Panchayat Raj Institutions may be
established there. Accordingly, it is proposed to introduce a Bill to provide
for the extension of the provisions of Part IX of the Constitution to the
Schedule Areas with certain modifications providing that, among other things,
the State Legislations that may be made shall be in consonance with the
customary law, social and religious practices and traditional management
practices of community resources; .... The offices of the Chairpersons in the
Panchayats at all levels shall be reserved for the Scheduled Tribes; the
reservations of seats at every Panchayat for the Scheduled Tribes shall not be
less than one-third of the total number of seats."
10. The
provision of the PESA Act which merits consideration in the present case is
Section 4 which reads as follows:-
4.
Notwithstanding anything contained under Part IX of the Constitution, the
Legislature of a State shall not make any law under that Part which is
inconsistent with any of the following features, namely:-- (a) a State
legislation on the Panchayats that may be made shall be in consonance with the
customary law, social and religious practices and traditional management
practices of community resources;
(b) a
village shall ordinarily consist of a habitation or a group of habitations or a
hamlet or a group of hamlets comprising a community and managing its affairs in
accordance with traditions and customs;
(c) every
village shall have a Gram Sabha consisting of persons whose names are included
in the electoral rolls for the Panchayat at the village level;
(d) every
Gram Sabha shall be competent to safeguard and preserve the traditions and
customs of the people, 11 their cultural identity, community resources and the
customary mode of dispute resolution;
(e) every
Gram Sabha shall - (i) approve the plans, programmes and projects for social
and economic development before such plans, programmes and projects are taken
up for implementation by the Panchayat at the village level;
(ii) be
responsible for the identification or selection of persons as beneficiaries
under the poverty alleviation and other programmes;
(f) every
Panchayat at the village level shall be required to obtain from the Gram Sabha
a certification of utilization of funds by that Panchayat for the plans,
programmes and projects referred to in clause (e);
(g) the
reservation of seats in the Scheduled Areas at every Panchayat shall be in
proportion to the population of the communities in that Panchayat for whom
reservation is sought to be given under Part IX of the Constitution;
Provided
that the reservation for the Scheduled Tribes shall not be less than one-half
of the total number of seats:
Provided
further that all seats of Chairpersons of Panchayats at all levels shall be
reserved for the Scheduled Tribes;
(h) the
State Government may nominate persons belonging to such Schedule Tribes as have
no representation in the Panchayat at the intermediate level or the Panchayat
at the district level:
Provided
that such nomination shall not exceed one-tenth of the total members to be
elected in that Panchayat;
(i) the
Gram Sabha or the Panchayats at the appropriate level shall be consulted before
making the acquisition of land in the Scheduled Areas for development projects
and before re-settling or rehabilitating persons affected by such projects in
the Scheduled 12 Areas; the actual planning and implementation of the projects
in the Scheduled Areas shall be coordinated at the State level;
(j)
planning and management of minor water bodies in the Scheduled Areas shall be
entrusted to Panchayats at the appropriate level;
(k) the
recommendations of the Gram Sabha or the Panchayats at the appropriate level
shall be made mandatory prior to grant of prospecting licence or mining lease
for minor minerals in the Scheduled Areas:
(l) the
prior recommendation of the Gram Sabha or the Panchayats at the appropriate
level shall be made mandatory for grant of concession for the exploitation of
minor minerals by auction;
(m) while
endowing Panchayats in the Scheduled Areas with such powers and authority as
may be necessary to enable them to function as institutions of self-
government, a State Legislature shall ensure that the Panchayats at the
appropriate level and the Gram Sabha are endowed specifically with - (i) the
power to enforce prohibition or to regulate or restrict the sale and
consumption of any intoxicant;
(ii) the
ownership of minor forest produce;
(iii) the
power to prevent alienation of land in the Scheduled Areas and to take
appropriate action to restore any unlawfully alienated land of a Scheduled
Tribe;
(iv) the
power to manage village markets by whatever name called;
(v) the
power to exercise control over money lending to the Scheduled Tribes;
(vi) the
power to exercise control over institutions and functionaries in all social
sectors;
13 (vii)
the power to control over local plans and resources for such plans including
tribal sub- plans;
(n) the
State legislations that may endow Panchayats with powers and authority as may
be necessary to enable them to function as institutions or self-government
shall contain safeguards to ensure that Panchayats at the higher level do not
assume the powers and authority of any Panchayat at the lower level or of the
Gram Sabha;
(o) the
State Legislature shall endeavour to follow the pattern of the Sixth Schedule
to the Constitution while designing the administrative arrangements in the
Panchayats at district levels in the Scheduled Areas.
[emphasis
supplied]
11.
To give effect to the provisions of PESA Act, the State
Legislature of Jharkhand had passed the Jharkhand Panchayat Raj Act, 2001
[Hereinafter `JPRA'] which included the following provisions:- Section 17(B).
Reservation of seats in Gram Panchayat. - (B) For the members of the Gram
Panchayat (in Scheduled Area). - (1) In scheduled areas, in every Gram
Panchayat, reservation of seats in favour of Scheduled Castes and Scheduled
Tribes shall be made, proportionate to their respective population in that Gram
Panchayat:
Provided
that the seats reserved for Scheduled Tribes shall not be less than half of the
total number.
(2) In
the scheduled areas, in Gram Panchayat, seats shall be reserved in such number
in favour of persons of backward class, proportionate to their population,
which, if combined with the 14 seats reserved for Scheduled Castes and
Scheduled tribes, if any, shall not exceed more than Eighty per cent of total
seats of that Gram Panchayat.
Section
21(B) - Reservation of Posts of Mukhia and Up-Mukhia in Gram Panchayat (In
Scheduled area) - Post of Mukhia and Up-Mukhia of the Gram Panchayats in the
scheduled areas shall be reserved for the scheduled tribes;
Provided
also that the Gram Panchayats, in the scheduled areas, wherein there is no
population of scheduled tribes, shall be duly excluded from allotment of
reserved posts of Mukhia and Up-Mukhia of scheduled tribes.
Section
36(B)- Reservation of seats of Panchayat Samiti (in Schedule Area) - (1) In
scheduled areas, in every Panchayat Samiti, reservation of seats in favour of
Scheduled Castes and Scheduled Tribes shall be made, proportionate to their
respective population in that Panchayat Samiti:
Provided
that the seats reserved for Scheduled Tribes shall not be less than half of the
total number.
(2) In
the scheduled areas, in Panchayat Samiti, seats shall be reserved in such
number in favour of persons of backward class, proportionate to their
population, which, if combined with the seats reserved for Scheduled Castes and
Scheduled tribes, if any, shall not exceed more than Eighty per cent of total
seats of that Panchayat Samiti.
...
Section
40(B) - Reservation of Posts of Pramukh and Up-Pramukh in Panchayat Samiti (In
the scheduled area) - Posts of Pramukh and Up-Pramukh in Panchayat Samitis in
the scheduled areas shall be reserved for the members belonging to the
scheduled tribes.
Section
51(B). Reservation of seats of Zila Parishad (in Scheduled Area) - 15 (1) In
scheduled areas, in every Zila Parishad, reservation of seats in favour of
Scheduled Castes and Scheduled Tribes shall be made, proportionate to their
respective population in that Zila Parishad:
Provided
that the seats reserved for Scheduled Tribes shall not be less than half of the
total number.
(2) In
the scheduled areas, in Zila Parishad, seats shall be reserved in such number
in favour of persons of backward class, proportionate to their population,
which, if combined with the seats reserved for Scheduled Castes and Scheduled
tribes, if any, shall not exceed more than Eighty per cent of total seats of
that Zila Parishad.
Section
55(B) - Reservation for Posts of Adhyaksha and Upadhakshya in Zila Parishad (In
scheduled area) - The post of Adhyaksha and Zila Parishads in scheduled areas
shall be reserved for the members of the scheduled tribes.
12.
In the High Court of Jharkhand, several writ petitions were filed
to challenge the constitutional validity of the PESA Act, 1996 and certain
other provisions of the Jharkhand Panchayati Raj Act, 2001. With regard to the
PESA, the main challenge was directed against the second proviso to Section
4(g) whereby all the seats of Chairpersons of Panchayats at all three tiers in
Scheduled Areas are to be reserved in favour of Scheduled Tribes. The
petitioners before the High Court had contended that since every eligible
individual has a right to vote and the right to contest elections for the seats
and Chairperson positions in panchayats, the cent per cent reservation of
Chairperson positions in favour of STs would 16 curtail the rights of
candidates other than those belonging to the ST category.
13.
It was also argued that the cent per cent reservation of
Chairperson positions was excessive and hence violative of Article 14 of the
Constitution. Some of the petitioners had urged that the office of a
Chairperson should be treated as a solitary post and hence reservation of such
office was not permissible. In support of this contention, they had relied on
an earlier Judgment of the Patna High Court in the case of Janardhan Paswan v.
State of Bihar, AIR 1988 Pat 75. This case was distinguished by the High Court
keeping in mind that it was decided before the commencement of the
Seventy-Third Amendment and that Article 243-D in Part IX of the Constitution
had contemplated the said reservation policy. However, the High Court held that
the second proviso to Section 4(g) of the PESA Act, 1996 reserving all the
seats of Chairpersons of Panchayats in favour of Scheduled Tribes was
unconstitutional. The relevant portion of the High Court Judgment reads as
follows:- "..So far as 2nd proviso to clause (g) of Section 4 of PESA Act,
1996 is concerned, by such provision of the seats of Chairpersons of Panchayats
at all levels in the scheduled areas have been reserved for the Scheduled
Tribes. In view of the aforesaid proviso to clause (g) of Section 4 of PESA
Act, 1996, the State Government while enacted Jharkhand Panchayat Raj Act, 2001
in regard to the scheduled areas, all seats of Chairpersons of Panchayats at
all levels have been reserved for Scheduled Tribes vide Section 21 (B), 17
Section 40(B) and Section 55 (B) of the Act, 2001. It has already been held
that cent-percent reservation of the offices and seats of Chairpersons cannot
be made, being excessive, unreasonable and against the principles of equality
i.e. violative of Article 14 of the Constitution of India. By the aforesaid
provisions cent-percent reservation of seats of Chairpersons of Panchayats at
all levels in scheduled areas having been made, they cannot be upheld, being
unconstitutional. Accordingly, the 2nd proviso to clause (g) of Section 4 of
PESA Act, 1996, Section 21 (B), Section 40 (B) and Section 55 (B) of Jharkhand
Panchayat Raj Act, 2001 so far cent percent reservation of seats of
Chairpersons of Panchayats at all levels in favour of Scheduled Tribes is
concerned, are hereby declared unconstitutional and ultra- vires."
The above-mentioned
finding of the High Court has been challenged before this Court by the Union of
India (appellant).
14.
In the course of the proceedings before this Court, we heard Mr.
Gopal Subramanium, Additional Solicitor General [now Solicitor General of India]
and Mr. M.P. Raju, on behalf of the appellant. Mr. P.S. Mishra, Mr. M.N.
Krishnamani, Sr. Adv., Mr. R. Venkataraman, Mr. Nagender Rai and Mr. Delip
Jerath, learned counsels made oral submissions on behalf of the respondents.
15.
It should be kept in mind that apart from relying on the earlier
decision, the High Court did not state any specific reason for striking down
the second proviso to Section 4(g) of the PESA Act, 1996 as well as Sections 21
(B), 40 (B) and 55 (B) of the JPRA Act, 2001 by holding these 18 provisions to
be unconstitutional. The only reason given by the High Court was that cent per
cent reservation of the offices of Chairpersons is excessive, unreasonable and
against the principles of equality. It may also be noted that the Bhuria Committee
Report had recommended that the Chairman and Vice-Chairman of Panchayats should
belong to Scheduled Tribes. This recommendation was accepted by the Union
Government and the PESA Act, 1996 was enacted to give effect to the same. The
Parliament has conferred such special reservation on account of the pivotal
role of the Chairperson in a Panchayat. It must have been felt that if the
Chairperson positions are occupied by non-tribal persons in Scheduled Areas,
there is no guarantee that such persons will account for the special interests
of the Scheduled Tribes.
16.
While enacting the Fifth Schedule, the Constituent Assembly was of
the view that the subjection to normal laws would have exposed the tribal
communities to two dangers in particular. Both arose out of the fact that they
were primitive people, simple, unsophisticated and frequently improvident.
Firstly, there was a risk of their agricultural land being usurped by the more
civilized section of the population. This would threaten their livelihood and
sustenance since the occupation of the tribals was for the most part
agricultural. Secondly they were more likely to be victimized by the `wiles of
the moneylender'. The primary aim of the government policy then was to protect
the tribal communities from these 19 two dangers and to preserve their customs.
This objective was pursued by incorporating special provisions that were to be
made applicable to these backward areas. The main contention made by the
counsels for the respondents is that it is not justifiable to reserve all
Chairperson positions in Panchayats located in Scheduled Areas in favour of
persons belonging to the ST category. At this juncture, we must clarify that
Sections 21(B), 40(B) and 55(B) of the JPRA have since been amended to confine
reservation to the office of Mukhiya (at Gram Panchayat level), Pramukh (at
Panchayat Samithi level) and Adhyaksh (at Zila Parishad level).
17.
The counsel for the respondent had contended that the
constitutional intention behind Article 243-D is not that of 100 per cent
reservation but only proportionate reservation and it speaks of rotation of the
reserved seats. However, we must emphasize that Article 243-M(4)(b) permits
`exceptions and modifications' in the application of Part IX to Scheduled Areas.
The respondents have also argued that the maximum reservation which is legally
permissible is only up to 50 per cent and reliance was placed on the decisions
of this Court in Indra Sawhney v. Union of India, (1992) Suppl. (3) SCC 217 and
M.R. Balaji v. State of Mysore, (1963) 1 SCC 439. However, it should be kept in
mind that both of these decisions were given in respect of reservation measures
enabled by Article 16 (4) of the Constitution.
18.
At the outset, we are of the view that the principles of
reservation which are applicable for public employment and for admission to
educational institutions cannot be readily applied in respect of a reservation
policy made by the legislature to protect the interests of the Scheduled Tribes
by assuring them of majority reservation as well as the occupancy of
Chairperson positions in Panchayats located in Scheduled Areas. This policy
broadly corresponds with the past practice wherein the Scheduled Areas were
administered as per the provisions of the Fifth Schedule to the Constitution
and the same was expected to adhere to the advice of the Tribes Advisory
Councils, which were predominantly controlled by Scheduled Tribes. By extending
the Panchayati Raj system to these areas, Scheduled Tribes should not be put in
a relatively disadvantageous position. In the Panchayati Raj system
contemplated by Part IX, the Scheduled Tribes should have an effective say in
the administration. That is why the Bhuria Committee recommended that all
Chairperson positions should be reserved in favour of Scheduled Tribes.
19.
The Counsel for the respondents also contended that the exclusive
reservation in favour of Scheduled Tribes unfairly limits the scope of
political participation for others and since all the offices of Chairpersons are
reserved, there is no scope for rotation of seats as contemplated by the third
proviso to Article 243-D(4) of the Constitution. It was also 21 pointed out
that in some of the Districts notified as Scheduled Areas, the Scheduled Tribes
are not in a majority. First of all, it is to be remembered that the impugned
reservation policy is applicable only to Scheduled Areas which were hitherto
covered by the Fifth Schedule to the Constitution. We must make it abundantly
clear that this pattern of reservation has been designed only for Scheduled
Areas which merit such exceptional treatment. In the present case, it should be
noted that the Scheduled Areas under consideration are restricted only to
certain Districts in the State of Jharkhand. In some Districts where STs are
not predominantly in occupation, only certain blocks have been notified as
Scheduled Areas by themselves. On account of migration of non-tribal people in
some areas, there may be a relatively lesser proportion of tribal population
but historically these areas were occupied almost exclusively by Tribal people.
20.
In the course of the proceedings, our attention was also drawn to
a Constitution Bench decision reported as R.C Poudyal v. Union of India (1994)
Supp. 1 SCC 324, wherein the majority had upheld the reservation of some seats
in the favour of the Bhutia and Lepcha communities in the Sikkim Legislative
Assembly. In that case the majority had held that even though legislative seats
could not be ordinarily reserved on the basis of ethnic and religious identity,
an exception could be made in this case on account of the particular historical
factors that led to the integration of Sikkim with the Union of 22 India. The
judgment in that case does not directly aid the case of either side in the present
litigation. However, the opinions delivered in that case did touch on the
importance of the `one-man, one-vote' principle that should be followed in
liberal democracies. While this principle entails that there should be parity
between the weightage given to the votes cast by individuals, the same cannot
be enforced to an absolute standard. This is because territorial constituencies
are of varying sizes with regard to the number of voters residing in them. This
means that there is bound to be some disparity in the weightage accorded to the
votes cast by individuals across different constituencies. This problem exists
in all electoral formats where representatives are chosen from territorial
constituencies. Needless to say the principle of `one-man, one- vote' cannot be
applied in an absolute sense in the context of Panchayat elections in Scheduled
Areas. However, it is the responsibility of the executive to identify
territorial constituencies which have a certain degree of parity in their
population levels. It is of course important to re- draw these constituencies
from time to time, in keeping with the demographic shifts in the concerned
area.
21.
Concerns were also raised that in some instances the notified
Scheduled Areas include certain blocks in particular districts but do not
include the remaining blocks of the same districts. This is not a serious
hurdle because it is quite clear that the exceptional treatment for 23
Scheduled Tribes will be confined to the blocks that have been notified as
Scheduled Areas. This means that in the Districts where only some of the blocks
have been notified as Scheduled Areas, the impugned provisions of the JPRA will
be applicable at the level of Panchayat Samitis within the notified area but
not at the level of the Zilla Parishad for the whole district.
22.
A comparable reservation policy contained in the Madhya Pradesh
Panchayati Raj Act was challenged in Ashok Kumar Tripathi v. Union of India ,
2000 (2) MPHT 193 and the High Court upheld the provision.
The High
Court of Madhya Pradesh held that:
"45.
So far as the high percentage of reservation exceeding 50% for members and 100%
reservation for Chairpersons in Scheduled Areas is concerned, it is supportable
even on the touch stone of Article 14 of the Constitution. It is a protective
discrimination permissible on a reasonable classification of different sections
of the society into more oppressed- backwards and the forwards. The peculiar
situation of the inhabitants of the Scheduled Areas whose conditions have to be
improved to educate them in the local Government, a step towards an effort to
achieve their assimilation in the normal stream of democratic life at par with
the advanced and the forward sections of the society justifies such
classification. In the Scheduled Areas in reality if an aboriginal has to
contest an election against a member of the forward section of the society, the
contest would be totally unequal as of a weak and ignorant against wealthy and
powerful. In a contest of this nature the weak and ignorant hardly can get a
chance to become a member and in any case it would be impossible for him to
reach to the helm of the institution as Chairperson. If he by chance becomes a
Chairperson in the Panchayat consisting of elected members from advanced sections
of the society and the members are in majority, it 24 would be well nigh
impossible for the Chairperson of the reserved category to effectively function
and to save his elected status. The necessity, therefore, is that the
Chairperson should be from the reserved category so that he is in a position to
effectively function without inhibition and threat of no confidence motion
against him to remove him from his office. ..."
23.
In light of these observations, it is our considered opinion that
the High Court of Jharkhand had erred in striking down Sections 21(B), 40(B)
and 55(B) of the Jharkhand Panchayat Raj Act which give effect to the second
proviso of Section 4(g) of the Panchayats (Extension to Scheduled Areas) Act,
1996. We hold that in Panchayats located in Scheduled Areas, the exclusive
representation of Scheduled Tribes in the Chairperson positions of the same
bodies is constitutionally permissible.
This is
so because Article 243-M(4)(b) expressly empowers Parliament to provide for
`exceptions and modifications' in the application of Part IX to Scheduled
Areas. The provisos to Section 4(g) of the PESA contemplate certain exceptions
to the norm of `proportionate representation' and the same exceptional
treatment was incorporated in the impugned provisions of the JPRA.
24.
The next point that arises for consideration is whether it is
constitutionally permissible to provide reservations in favour of Scheduled
Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) that
together amount to eighty percent of the seats in the 25 Panchayati Raj
Institutions located in Scheduled Areas of the State of Jharkhand? The High
Court had struck down Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the JPRA as
unconstitutional by virtue of reasoning that reservations to the extent of 80%
of the seats in panchayats were excessive, arbitrary and disproportionate,
thereby violating Article 14 of the Constitution. The Counsels for the
respondent had referred to the observations of this Court in M.R. Balaji v.
State of Mysore, AIR 1963 SC 649 and Indra Sawhney v. Union of India (1992)
Supp 3 SCC 217 which had prescribed an upper ceiling of 50% for reservation of
posts in public employment. Reference was also made to a decision of the Patna
High Court in the case of Krishna Kumar Mishra v. State of Bihar, AIR 1996 Pat.
112, wherein a similar view had been adopted.
25.
Sections 17(B)(1), 36(B)(1) and 51(B)(1) of the JPRA are in
conformity with the first proviso to Section 4(g) of the PESA Act as 50% of the
seats in Panchayats located in scheduled areas are reserved in favour of ST
candidates. The High Court has not struck down these provisions. These
provisions contemplate that in Gram Panchayats, Panchayat Samitis and Zila
Parishads located in Scheduled Areas, the reservation of seats for the
Scheduled Castes and Scheduled Tribes shall be made on the basis of the
proportion of their respective population, provided that reservation for the
scheduled tribes shall not be less than half of the total number of seats. In
addition to this, Sections 17(B)(2), 36(B)(2) and 26 51(B)(2) of the JPRA
provide that in Gram Panchayats, Panchayat Samitis and Zila Parishads located
in Scheduled Areas, seats are to be reserved in favour of persons belonging to
backward classes in proportion to their population, so that the aggregate
reservations shall not exceed 80% of the total number of seats available. By
the impugned judgment, Section 17(B)(2), 36(B)(2) and 51(B)(2) have been held
to be unconstitutional mainly on the ground that they permit `excessive
reservation' which violates Article 14 of the Constitution. This finding of the
High Court has also been contested before us.
26.
Before adverting to the contentions advanced by the appellants'
counsel, it is useful to refer to the pattern of reservations set out in Part
IX of the Constitution. Article 243-D is reproduced below:- "Article
243-D. Reservation of Seats. - (1) Seats shall be reserved for - (a) The
Scheduled Castes; and (b) The Scheduled Tribes, in every Panchayat 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 Panchayat as
the population of the Scheduled Castes in that Panchayat area or of the
Scheduled Tribes in that Panchayat area bears 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.
27 (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
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 under this clause shall be allotted by
rotation to different Panchayats at each level.
(5) The
reservation of seats under clauses (1) and (2) and the reservation of office of
Chairpersons (other than the reservation for women) under clause (4) shall
cease to 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 Panchayat or offices of Chairpersons
in the Panchayats at any level in favour of backward class of citizens."
27.
It may be noted that under Article 243-D there is a clear mandate
for the State Legislature to reserve seats for SCs and STs in every panchayat
and the number of seats so reserved shall bear, as nearly as may be, the 28
same proportion to the total number of seats to be filled by direct election in
that Panchayat as the population of the SCs or of the STs in that Panchayat
area bears to the total population of the area under consideration. Article
243-D(6) further states that nothing in this Part shall prevent a State
Legislature from making any provision for reservation of seats in any Panchayat
or offices of Chairpersons in the Panchayats at any level in favour of backward
class of citizens. There was no contention on behalf of the petitioners before
the High Court that the members of backward class were not entitled to get
reservation in the scheduled area. With respect to scheduled castes, the State
was bound to provide reservation to them even in the Scheduled Areas. As
already noticed, under the PESA 50% of the seats in Gram Panchayats, Panchayat
Samitis and Zila Parishads should be reserved in favour of schedule tribes and
the ceiling is fixed to the extent that this reservation put together shall not
exceed 80% of the total seats.
The
contention of the respondents is that this policy will lead to reverse
discrimination against persons who are not eligible for such reservation
benefits. It may be noticed that this reservation policy is exclusively
applicable to scheduled areas which had hitherto been the subject of a separate
administrative scheme under the Fifth Schedule of the Constitution.
28.
It is a well-accepted premise in our legal system that ideas such
as `substantive equality' and `distributive justice' are at the heart of our 29
understanding of the guarantee of `equal protection before the law'. The State
can treat unequals differently with the objective of creating a level- playing
field in the social, economic and political spheres. The question is whether
`reasonable classification' has been made on the basis of intelligible
differentia and whether the same criteria bears a direct nexus with a
legitimate governmental objective. When examining the validity of affirmative
action measures, the enquiry should be governed by the standard of
proportionality rather than the standard of `strict scrutiny'. Of course, these
affirmative action measures should be periodically reviewed and various
measures are modified or adapted from time to time in keeping with the changing
social and economic conditions. Reservation of seats in Panchayats is one such
affirmative action measure enabled by Part IX of the Constitution.
29.
The Statement of Objects and Reasons appended to the Constitution
(Seventy Second Amendment) Bill, 1991 which was enacted as the Constitution
(Seventy Third Amendment) Act, 1992 reads as follows :- "Though the
Panchayat Raj Institutions have been in existence for a long time, it has been
observed that these institutions have not been able to acquire the status and
dignity of viable and responsive people's bodies due to a number of reasons
including absence of regular elections, prolonged supercessions, insufficient
representation of weaker sections like Schedule Castes, Scheduled Tribes and
women, inadequate devolution of powers and lack of financial resources.
30 (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 organize 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 need to enshrine in
the Constitution certain basic and essential features of Panchayat 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;
reservations of seats for the Scheduled Castes and Schedule 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 supercession of
any Panchayat;
disqualifications
for membership of Panchayats; devolution by the State Legislature of powers and
responsibilities upon the Panchayats with respect to the preparation of plans
for economic developments and social justice and for the implementation of
development schemes; sound finance of the Panchayats by securing authorization
from State Legislature for grants-in-aid to the Panchayats from the
Consolidated Fund of the State, as also assignments to, or appropriation by,
the Panchayats of the revenues of designated taxes, duties, tolls and fees;
setting up of a Finance Commission within one year of the proposed amendment
and thereafter every 5 years to review the financial position of Panchayats;
auditing of accounts of the Panchayats; powers of State Legislatures to make
provisions with respect to elections to Panchayats under the superintendence,
direction and control of the chief electoral officer of the State; application
of the provisions of the said Part to Union territories; excluding certain
State and areas from the application of the provisions of the said Part;
continuance
of existing laws and Panchayats until one year 31 from the commencement of the
proposed amendment and barring interference by courts in electoral matters
relating to Panchayats;
(4) The
Bill seeks to achieve the aforesaid objectives."
30.
Article 243D of the Constitution, as stated earlier, clearly
identifies the intended beneficiaries in the form of persons belonging to
scheduled castes, scheduled tribes, women and other backward class of citizens.
While
introducing the 73rd Amendment Act, the Statement of Objects and Reasons
clearly contemplated democratic decentralization to pursue the legitimate
governmental objective of ensuring that the traditionally marginalized groups
should progressively gain a foothold in local self government. It is in this
background that `reasonable classification' is to be viewed.
31.
50% of reservation in favour of the STs in Panchayats at all the
three tiers is clearly an example of `compensatory discrimination' especially
in view of the fact that the scheduled areas under consideration were
completely under a separate administrative scheme as per the Fifth Schedule to
the Constitution. In fact, 50% of reservation in favour of the scheduled tribes
by itself was not challenged before the High Court.
Therefore,
the question that now remains is whether reservation should be made in favour
of the scheduled castes and backward class for the purpose of scheduled areas.
The Constitutional mandate is that the 32 scheduled castes should be given
reservation at all the three tiers of Panchayats, with regard to the principle
of proportionate representation.
32.
The Division Bench of the High Court has relied on the precedents
relating to Article 15(4) and Article 16(4) by drawing an analogy with the
limits placed on reservations in higher education and public employment. We
must emphasize that Article 243-D is a distinct and independent constitutional
basis for reservation in Panchayat Raj Institutions. This reservation cannot be
readily compared to the affirmative action measures enabled by Articles 15(4)
and 16(4) of the Constitution. Especially on the unviability of the analogy
between Article 16(4) and Article 243-D, we are in agreement with a decision of
the Bombay High Court, reported as Vinayakrao Gangaramji Deshmukh v. P.C.
Agrawal & Ors., AIR 1999 Bom 142. That case involved a fact- situation
where the chairperson position in a Panchayat was reserved in favour of a
Scheduled Caste Woman. In the course of upholding this reservation, it was
held:
"...
Now, after the seventy-third and seventy-fourth Constitutional amendments, the
constitution of local 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 33 the public employment, but a separate constitutional power which directs
the reservation in such local bodies. ..."
33.
For the sake of argument, even if an analogy between Article 243-D
and Article 16(4) was viable, a close reading of the Indra Sawhney decision
will reveal that even though an upper limit of 50% was prescribed for
reservations in public employment, the said decision did recognise the need for
exceptional treatment in some circumstances.
This 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 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."
34.
We believe that the case of Panchayats in Scheduled Areas is a fit
case that warrants exceptional treatment with regard to reservations.
The
rationale behind imposing an upper ceiling of 50% in reservations for higher
education and public employment cannot be readily extended to the domain of
political representation at the Panchayat-level in Scheduled Areas. With
respect to education and employment, parity is 34 maintained between the total
number of reserved and unreserved seats in order to maintain a pragmatic
balance between the affirmative action measures and considerations of merit.
Under Article 15(4) and 16(4) the reservation of seats in favour of socially
and educationally backward classes (SEBC) is ordinarily done on the basis of
proportionate representation and an upper ceiling of 50% allows for
considerable flexibility in distributing the benefits of higher education and
public employment among a wide range of intended beneficiaries such as the
Scheduled Castes (SC), Scheduled Tribes (ST), Women and Other Backward Classes
(OBC). However, the same approach of providing proportionate representation is
likely to be less effective in the context of reservations for panchayats in
scheduled areas. One reason for this is the inherent difference between the
nature of benefits that accrue from access to education and employment on one
hand and political participation on the other hand. While access to higher
education and public employment increases the likelihood of gradual
socio-economic empowerment of the individual beneficiaries, involvement in
local-self government is intended as a more immediate measure of protection for
the individual as well as the community that he/she belongs to.
Especially
in the context of Scheduled Areas, there is a compelling need to safeguard the
interests of tribal communities with immediate effect by giving them an
effective voice in local self-government. The Bhuria Committee Report had
clearly outlined the problems faced by Scheduled 35 Tribes and urged the
importance of democratic decentralisation which would empower them to protect
their own interests.
35.
By reserving at least half of the seats in panchayats located in
Scheduled Areas in favour of STs, the legislature has adopted a standard of
compensatory discrimination which goes beyond the ordinary standards of
`adequate representation' and `proportionate representation'. The standard of
`adequate representation' comes into play when it is found that a particular
community is under-represented in a certain domain and a specific threshold is
provided in order to ensure that the beneficiary group comes to be adequately
represented with the passage of time. For instance in Part IX of the Constitution,
the reservation in favour of women which amounts to one-third of all the seats
in Panchayats is an embodiment of the `adequate representation' standard.
36.
However, in instances where the Constitution does not specify the
quantum of reservations, the idea of `proportionate representation' is the rule
of thumb. As mentioned earlier, proportionate representation has been the
controlling idea behind reservations in the context of education and employment
which have a basis in Article 15(4) and 16(4) respectively. Even in the context
of Panchayati Raj Institutions, Article 243-M(1) and Article 243-M(6)
explicitly refer to `proportionate 36 representation' as the controlling idea
behind reservations in favour of SCs, STs and Backward Classes respectively.
With respect to the panchayats located in Scheduled Areas, the flexibility
provided by Article 243-M(4)(b) has led to the enactment of the PESA which
specifies `proportional representation' as the norm for reservations in favour
of the intended beneficiaries, but makes a departure from this standard in
order to protect the interests of Scheduled Tribes in particular.
37.
There is of course a rational basis for departing from the norms
of `adequate representation' as well as `proportionate representation' in the
present case. This was necessary because it was found that even in the areas
where Scheduled Tribes are in a relative majority, they are under- represented
in the government machinery and hence vulnerable to exploitation. Even in areas
where persons belonging to Scheduled Tribes held public positions, it is a
distinct possibility that the non-tribal population will come to dominate the
affairs. The relatively weaker position of the Scheduled Tribes is also
manifested through problems such as land-grabbing by non-tribals, displacement
on account of private as well as governmental developmental activities and the
destruction of environmental resources. In order to tackle such social
realities, the legislature thought it fit to depart from the norm of `proportional
representation'. In this sense, it is not our job to second- guess such
policy-choices. A similar position was also adopted by the 37 Madhya Pradesh
High Court in Ashok Kumar Tripathi v. Union of India, 2000 (2) MPHT 193,where
Dharmadhikari, J. made the following observations (extracted from Para. 36,
37):
"...
To safeguard interests of Scheduled Tribes living in remote or hilly areas or
forests with primitive culture of their own, the Constitution envisages
formation of Scheduled Areas for them, and application of laws to them with
'exceptions and modifications', so that they are able to preserve their culture
and occupation and are not exposed to exploitation by forward classes of Urban
Population.
The
protective discrimination in favour of such deprived section of the Society can
go to the extent of complete exclusion, if the circumstances so justify, of
advanced classes in Local Self Governance of Scheduled areas. The main object
and purpose behind such reservations based on population, even in excess of 50%
is with a view that the exclusive participation of deprived and oppressed
sections of the Society in Local Self-Government bodies in their areas is
ensured because in open competition with the advanced sections of the Society
they can never have any share to participate in Self-Governance. A close and
careful examination of the provisions of the Central and State Act, in the
light of Constitutional provisions, shows that principle of proportionate
representation based on the population of the reserved categories has been
adhered to but only departure has been made from it in giving them larger share
of self-governance by reserving seats for them as member and in the Scheduled
Areas a monopoly of seats of Chairpersons has been created for them so that
they conserve their culture and way of living. ... For taking a decision on the
policy of reservation as to whether it is reasonable or unreasonable, the Court
has to examine the overall Scheme of the Constitution as envisaged in Part IX
and IX A and the corresponding Central and State Legislation brought to
implement it. The aim and object of the reservation policy contained in Part IX
and IX A is that the Backward and oppressed sections of the Society have to be
encouraged in the democratic process by giving them a share of governance which
hither-to was denied to them since the times of British India and after
independence. The other object at the same time is to protect them from urban
influences so that they may be able to conserve their culture and way of life
and are not exposed to exploitation by the advanced or socially and
economically powerful sections of the society.
1.
38 At the Bar it was argued that such excess policy of reservation
is bound to create bad blood between the two classes and would be a serious
deterrent to bring such oppressed classes into the mainstream of democratic
life. There are arguments for and against this. In the matters of policy the
best judges are the Legislators who are closer to the society and represent them.
They have a study of the society and have advantage of reports based on
sociological surveys made by experts. They better understand the needs of the
society and the various sections forming it. It is not for this Court to enter
into this forbidden arena and lay down a policy of reservation. The argument
advanced on behalf of the petitioners only shows that the attitude of the
members of the advanced sections of the society towards castes and tribes
continues to be more of competition than compassion. The reservation in various
walks of life made in their favour for the last 50 years of the independence
has not been successful in improving their socio-economic condition and have
not made them effective participant in the democratic process. The necessity is
still felt by the legislators in making special provisions for them in the
Constitution and the laws to ensure their effective participation at least in
the local self Government institutions as a first step to give them due share
of governance in the Assemblies of the States and the Parliament. The argument
that the policy of reservation would segregate them rather than assimilate them
with the common stream is one for the legislator to consider on the basis of
existing social situation. In the matters of policy, wisdom of legislature
cannot be questioned or the policy laid down cannot be upset by the Court which
is ill equipped to deal with the subject."
38.
Even though there are cogent reasons for the exceptional treatment
accorded to Scheduled Tribes, there are some other concerns that merit
consideration. One such concern is with the very identification of Scheduled
Areas in the first place. It is a common refrain that the efficacy as well as
legitimacy of affirmative action measures can be questioned if they are not
targeted properly. In the present case, it was pointed out that the
identification of Scheduled Areas is done on the 39 basis of census data and
the same is collected after intervals of 10 years.
It was
urged that the identification of Scheduled Areas may not be accurate if it was
based on outdated data. Even though we were shown data describing the
distribution of the population belonging to the Scheduled Tribes category in
the various districts of Jharkhand (As per the 2001 census), it will suffice to
say that the identification of Scheduled Areas is an executive function and we
do not possess the expertise needed to scrutinize the empirical basis of the
same. The data submitted before us indicates that while the Scheduled Tribes
are indeed in a majority in some Scheduled Areas, the same is not true for some
other Scheduled Areas. This disparity is understandable keeping in mind that
there has been a considerable influx of non-tribal population in some of the
Scheduled Areas. In this regard, we must re-emphasize the Bhuria Committee's
recommendation that persons belonging to the Scheduled Tribes should occupy at
least half of the seats in Panchayats located in Scheduled Areas, irrespective
of whether the ST population was in a relative minority in the concerned area.
This recommendation is in line with the larger objective of safeguarding the
interests of Scheduled Tribes.
39.
The other significant criticism of aggregate reservation amounting
to 80% of the seats in Panchayats located in Scheduled Areas is that it amounts
to an unreasonable limitation on the rights of political 40 participation of
persons belonging to the general category. 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 present case, it was urged that reservations amounting to 80% of the
seats in Scheduled area panchayats will have the effect of limiting the choices
available to voters and effectively discourage persons belonging to the general
category from contesting these elections. While the exercise of electoral
franchise is an essential component of a liberal democracy, it is a
well-settled principle in Indian law that such rights do not have the status of
fundamental rights and are instead legal rights which are controlled through
legislative means (See N.P. Ponnuswami's case, AIR 1952 SC 64). For instance,
the Constitution empowers the Election Commission of India to prepare electoral
rolls for the purpose of identifying the eligible voters in elections for the
Lok Sabha and the Vidhan Sabhas. Furthermore, the Representation of People Act,
1951 gives effect to the Constitutional guidance on the eligibility of persons
to contest these 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.
40.
In the context of reservations in Panchayats, it can be reasoned
that the limitation placed on the choices available to voters is an incidental
consequence of the reservation policy. In this case, the compelling state
interest in safeguarding the interests of weaker sections by ensuring their
representation in local self-government clearly outweighs the competing
interest in not curtailing the choices available to voters. It must also be
reiterated here that the 50% reservations in favour of STs as contemplated by
the first proviso to Section 4(g) of the PESA were not struck down in the
impugned judgment. Even though it was argued before this Court that this
provision makes a departure from the norm of `proportionate representation'
contemplated by Art. 243-D(1), we have already explained how Art. 243-M(4)(b)
permits `exceptions and modifications' in the application of Part IX to
Scheduled Areas. Sections 17(B)(1), 36(B)(1) and 51(B)(1) of the JPRA merely
give effect to the exceptional treatment that is mandated by the PESA.
41.
However, in addition to the 50% reservations in favour of
Scheduled Tribes, the State of Jharkhand is also under an obligation to account
for the interests of Scheduled Castes and Other Backward Classes. The same has
been contemplated in Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the JPRA which
incorporate the standard of `proportionate representation' for Scheduled Castes
and Backward Classes in such a manner that the total reservations do not exceed
80%. This does not 42 mean that reservations will reach the 80% ceiling in all
the Scheduled Areas. Since the allocation of seats in favour of Scheduled
Castes and Backward Classes has to follow the principle of proportionality, the
extent of total reservations is likely to vary across the different territorial
constituencies identified for the purpose of elections to the panchayats.
Depending
on the demographic profile of a particular constituency, it is possible that
the total reservations could well fall short of the 80% upper ceiling. However,
in Scheduled Areas where the extent of the population belonging to the
Scheduled Castes and Backward Classes exceeds 30% of the total population, the
upper ceiling of 80% will become operative.
42.
Irrespective of such permutations, the legislative intent behind
the impugned provisions of the JPRA is primarily that of safeguarding the
interests of persons belonging to the Scheduled Tribes category. In light of
the preceding discussion, it is our considered view that total reservations
exceeding 50% of the seats in Panchayats located in Scheduled Areas are
permissible on account of the exceptional treatment mandated under Article
243-M(4)(b). Therefore, we agree with the appellants and overturn the ruling of
the High Court of Jharkhand on this limited point.
43.
Dr. M.P. Raju, learned counsel appearing for one of the
Respondents, contended that Jharkhand Panchayat Reservation Act should not have
been extended to the `Scheduled Area' as the Scheduled 43 Tribes were enjoying
more powers under the Fifth Schedule to the Constitution. The learned Counsel
contended that if those provisions are held to be unconstitutional as held by
the High Court, it would be better to revert to the system of Tribes Advisory
Councils under the Fifth Schedule. We do not find much force in the contention
and it is only to be rejected.
44.
In the result, the appeals filed by the Union of India are allowed
and the proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and 55(B)
of Jharkhand Panchayat Reservation Act, 2001 are held to be constitutionally
valid. We also hold that Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the
Jharkhand Panchayat Reservation Act, 2001 are constitutionally valid
provisions.
45.
The other appeals are also disposed of accordingly and the State
Election Commission of the State of Jharkhand is directed to conduct elections
for the Panchayati Raj Institutions (PRIs) as early as possible.
.....................................CJI (K.G. BALAKRISHNAN)
..........................................J. (P. SATHASIVAM)
..........................................J. (J.M. PANCHAL)
New Delhi
January 12, 2010.
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