REPORTABL E

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 356 OF 1994

DR. K. KRISHNA MURTHY & ORS. … PETITIONERS

VERSUS

UNION OF INDIA & ANR. … RESPONDENTS

WITH

W.P. (C) NOS. 245 OF 1995 AND 517 OF 2005

J U D G M E N T

K.G. BALAKRISHNAN , CJI

1. In these writ petitions, we are required to examine the

constitutional validity of some aspects of the reservation policy

prescribed for the composition of elected local self-government

institutions. In particular, the contentions have concentrated

on the provisions that enable reservations in favour of

1

backward classes and those which contemplate the

reservation of chairperson positions in the elected local

self-government institutions. These provisions have been

challenged as being violative of principles such as equality and

democracy, which are considered to be part of the ‘basic

structure’ doctrine.

2. The Constitution (Seventy-third) Amendment Act, 1992

[hereinafter ‘73

rd

Amendment’] and the Constitution (Seventy-

fourth) Amendment Act, 1992 [hereinafter ‘74

th

Amendment’]

had inserted Part IX and Part IX-A into the constitutional text

thereby contemplating the powers, composition and functions

of local self-government institutions, i.e. the Panchayats (for

rural areas) and Municipalities (for urban areas). In pursuance

of objectives such as democratic decentralization, greater

accountability between citizens and the state apparatus as

well as the empowerment of weaker sections, these

constitutional amendments contemplated a hierarchical

structure of elected local bodies. With respect to rural areas,

Part IX contemplates three tiers of Panchayats, namely those

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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 extract from the Statement

of Objects and Reasons for the 73

rd

Amendment:

“1. Though the Panchayati 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 supersessions, insufficient representation of

weaker sections like Scheduled Castes, Scheduled Tribes

and women, inadequate devolution 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

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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 Panchayati Raj

Institutions to impart certainty, continuity and strength

to them.

3. Accordingly, it is proposed to add a new Part relating

to Panchayats in the Constitution to provide for, among

other things, Gram Sabha in a village or group of villages;

constitution of Panchayats at village and other level or

levels; direct elections to all seats in Panchayats at the

village and intermediate level, if any, and to the Offices of

Chairpersons of Panchayats at such levels; reservation of

seats for the Scheduled Castes and Scheduled Tribes in

proportion to their population for membership of

Panchayats and office of Chairpersons in Panchayats at

each level; reservation of not less than one-third of the

seats for women; fixing tenure of 5 years for Panchayats

and holding elections within a period of 6 months in the

event of supersession of any Panchayat; …”

In the same vein, we can refer to the following extracts from

the Statement of Objects and Reasons for the 74

th

Amendment:

“1. In many States, local bodies have become weak and

ineffective on account of a variety of reasons, including

the failure to hold regular elections, prolonged

supersessions and inadequate devolution of powers and

functions. As a result, Urban Local Bodies are not able to

perform effectively as vibrant democratic units of

self-government.

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2. Having regard to these inadequacies, it is considered

necessary that provisions relating 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 and

women.

3. Accordingly, it is proposed to add a new Part relating

to the Urban Local Bodies in the Constitution to provide

for –

(a) constitution of three types of Muncipalities:

(i) Nagar Panchayats for areas in transition from a

rural area to urban area

(ii) Municipal Councils for smaller urban areas;

(iii) Municipal Corporations for larger urban areas.

…

(e) reservation of seats in every Municipality –

(i) for Scheduled Castes and Scheduled Tribes in

proportion to their population of 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

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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 the reservation of seats in Panchayats, Article

243-D reads as follows: -

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.

(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

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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.

(emphasis supplied)

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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 population of

the Scheduled Castes in the Municipal area or of the

Scheduled Tribes in the Municipal area bears to the total

population of that area and such seats may be allotted by

rotation to different constituencies in a Municipality.

(2) Not less than one-third of the total number of seats

reserved under clause (1) shall be reserved for women

belonging to the Scheduled Castes or as the case may be,

the Scheduled Tribes.

(3) Not less than one-third (including the number of seats

reserved for women belonging to the Scheduled Castes

and the Scheduled Tribes) of the total number of seats to

be filled by direct election in every 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 clauses (1) and (2) and

the reservation of offices 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.

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(6) Nothing in this Part shall prevent the Legislature of a

State from making any provision for reservation of seats

in any Municipality or offices of Chairpersons in the

Municipalities in favour of backward class of citizens.

(emphasis supplied)

5. The overarching scheme of Article 243-D and 243-T is to

ensure the fair representation of social diversity in the

composition of elected local bodies so as to contribute to the

empowerment of the traditionally weaker sections in society. The

preferred means for pursuing this policy is the reservation of

seats and chairperson positions in favour of Scheduled Castes

(SC), Scheduled Tribes (ST), women and backward class

candidates.

·Article 243-D(1) and Article 243-T(1) are analogous since they

lay down that the reservation of seats in favour of SC and ST

candidates should be based on the proportion between the

population belonging to these categories and the total

population of the area in question. Needless to say, the State

Governments are empowered to determine the extent of such

reservations on the basis of empirical data such as population

9

surveys among other methods, thereby being guided by the

principle of ‘proportionate representation’.

·Article 243-D(2) and Article 243-T(2) further provide that

from among the 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 face of it, this is an embodiment of

the principle of ‘adequate representation’. This idea comes into

play when it is found that a particular section is inadequately

represented in a certain domain and a specific threshold is

provided to ensure that this section of the population comes to

be adequately represented with the passage of time.

·With regard to chairperson positions, Article 243-D(4) and

Article 243-T(4) enable State legislatures to reserve these

offices in favour of SC, ST and women candidates. In the case

10

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 offices should

be reserved for women. The third proviso to Article 243-D(4)

lays down that the number of chairperson positions reserved

under the said clause would be allotted by rotation to different

panchayats in each tier. This rotational policy is a safeguard

against the possibility of a particular office being reserved in

perpetuity. It is pertinent to note that unlike the reservation

policy for panchayats, there are no comparable provisos to

Article 243-T(4) for guiding the reservation of chairperson

positions in Municipalities. This is a notable distinction

between the otherwise analogous schemes prescribed in

Article 243-D and Article 243-T.

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·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 favour of women, implying that they

will operate in perpetuity.

·Article 243-D(6) and Article 243-T(6) contemplate the power

of State Legislatures to reserve seats as well as chairperson

positions in favour of a ‘backward class of citizens’. Unlike the

fore-mentioned provisions that deal with reservations in

favour of SC, ST and women candidates, Article 243-D(6) and

Article 243-T(6) do not explicitly provide guidance on the

quantum of reservations. In the absence of any explicit criteria

or limits, it can be assumed that reservation policies

contemplated under Article 243-D(6) will ordinarily be guided

by the standard of proportionate representation.

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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 and chairperson positions in Panchayats and

Municipalities respectively?

(ii). Whether Article 243-D(4) and Article 243-T(4) are

constitutionally valid since they enable the reservation of

chairperson positions in Panchayats and Municipalities

respectively?

SUBMISSIONS MADE ON BEHALF OF THE PETITIONERS

7. In W.P. (C) No. 356/1994, Shri M. Rama Jois, learned

senior counsel appearing on behalf of the petitioners had

initially challenged the constitutionality of Clauses (2) to (6) of

Art. 243-D as well as Clauses (2)-(6) of Art. 243-T. These were

13

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 Panchayats and Section

162 for Zilla Panchayats]. Chairperson positions in

Panchayats were reserved in a similar proportion, with the

entire pool of chairperson posts in the State as the frame of

reference [Section 44 for Gram Panchayats, Section 138 for

Taluk Panchayats and Section 177 for Zilla Panchayats].

Subsequently, the scope of the challenge was enlarged to

question the reservation of seats and chairperson posts in

favour of women and backward classes under the Karnataka

Municipalities Act, 1964 [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].

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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

been provided in respect of the composition of the Lok Sabha

and the State Legislative Assemblies (under Art. 330 and 332).

However, the petitioners raised strong objections against the

other aspects of the reservation policy contemplated under

Articles 243-D and 243-T. Initially, they had assailed the

reservation of seats in favour of women, which has been

enabled by Art. 243-D(2) and (3) with respect to rural local

bodies, and by Art. 243-T(2) and (3) with respect to urban local

bodies. However, this challenge was given up during the

course of the arguments before this Court and the thrust of

the petitioner’s arguments was directed towards the following

two aspects:

·Firstly, objections were raised against Art. 243-D(6) and

Art. 243-T(6) since they enable reservations of seats and

15

chairperson posts in favour of backward classes, without

any guidance on how to identify these beneficiaries and the

quantum of reservations.

·Secondly, it was argued that the reservation of chairperson

posts in the manner contemplated under Art. 243-D(4) and

243-T(4) is unconstitutional, irrespective of whether these

reservations are implemented on a rotational basis and

irrespective of whether the beneficiaries are SCs, STs and

women. The objection was directed against the very

principle of reserving chairperson posts in elected local

bodies.

9. The common thread running across the petitioners’

arguments was that these provisions which were inserted into

the Constitution by way of the 73

rd

and 74

th

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

16

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 with

respect to the fundamental rights enumerated in Part III, there

is no obstruction to their scrutiny on the basis of principles

such as equality, democracy and fraternity, since all of them

find a place in the Preamble to our Constitution. Since the

petitioner has given up the challenge against the reservation of

seats in favour of women, it will not be necessary to

paraphrase the submissions related to that aspect.

10. It was urged that the reservation policy contained in the

Karnataka Panchayati 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

17

even if they are assumed to be backward in the

socio-economic sense, there was ample evidence that they

were already well represented in the political space. In fact, the

findings of the Chinappa Reddy Commission Report (1990)

showed that a majority of the Members of Parliament (MPs)

and the Members of the Legislative Assembly (MLAs) elected

from Karnataka belonged to the OBC category. In such a

scenario, there was no intelligible criterion to identify OBCs for

preferential treatment by way of reservations. An analogy 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 empowering the weaker sections

in society. Shri M. Rama Jois, learned senior counsel drew a

18

distinction between the context of reservations in the matter of

elections on one hand and in the matter of education and

employment on the other hand. It was reasoned that persons

belonging to Socially and Educationally Backward

Communities (SEBCs) [in respect of Article 15(4) and 15(5)]

and under-represented Backward Classes [in respect of Article

16(4)] are legitimately given reservations since they are in a

disadvantageous position when they compete for selection to

educational courses and government jobs, respectively. This

disadvantage is linked to backwardness in the social and

economic sense, owing to which persons belonging to these

groups may not have the resources or the awareness needed

to gain access to higher education or public employment.

However, the fact of social and economic backwardness does

not necessarily act as a barrier to political participation.

Stressing on the distinction between ‘selection’ and ‘election’,

Shri Jois contended that the OBCs did not need reservation

benefits because empirical findings suggested that there was

already a high degree of political mobilization among them.

Apart from the fact that OBCs appear to be well-represented in

19

the legislature, it was argued that economic backwardness

should not be conflated with political backwardness. This is so

because in the electoral arena, a candidate from a poorer

background is not necessarily at a disadvantage 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 background, the

petitioners contend that the framers had incorporated these

measures in the nature of compensatory discrimination to

address the historical disadvantage faced by SCs and STs.

However, it could not be assumed that OBCs had suffered a

comparable degree of disadvantage, especially since there were

no cogent empirical findings about the prevalence of

backwardness and that there were no specific

20

recommendations for reservations in favour of backward

classes, as contemplated under Article 340 of 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 bound to be some sub-sections within these groups which

are in a relatively better-off situation. However, the

reservations enabled by Art. 243-D(6) and Art. 243-T(6) do not

contemplate the exclusion of the ‘creamy layer’ in the manner

that has been prescribed for reservations in the context of

higher education [under Arts. 15(4) and 15(5)] and public

employment [under Art. 16(4), (4A) and (4B)] respectively. The

non-exclusion of the creamy layer creates the apprehension

21

that the benefits will be cornered by a limited section of the

intended beneficiaries, thereby frustrating the objectives of the

reservation policy in the first place. We were also alerted to the

possibility that State Governments could confer reservation

benefits in favour of particular OBC groups as a means of

garnering political support from these groups, instead of

ameliorating backwardness in the social and economic sense.

In support of this contention, it was pointed out that the

Karnataka Panchayati Raj Act had provided for reservations

that were in excess of the 50% upper ceiling prescribed for

communal reservations in past judicial decisions. [See: M.R.

Balaji v. State of Mysore, AIR 1963 SC 649; Indra Sawhney

v. Union of India, 1992 Supp 3 SCC 217]

14. With respect to Chairperson positions in the elected local

bodies, it was argued that they were in the nature of single

posts and reserving them amounted to cent-per-cent

reservation, thereby offending the equality clause. The

objection was against the very principle of reserving

chairperson posts, irrespective of the identity of the

22

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

Municipalities were executive offices and reserving them would

set a dangerous precedent that could ultimately lead to the

reservation of executive offices at higher levels of government.

It was urged those who occupy the reserved chairperson posts

are more likely to cater to the narrow interests of their own

groups rather than working for the welfare of the entire local

community.

15. After his extensive arguments which invoked the equality

clause, Shri M. Rama Jois turned our attention to arguments

invoking the principle of democracy. It was argued that

excessive reservations placed unfair limitations on the rights

of political participation of persons belonging to the

23

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 Art. 326) which also entails that as far

as possible, there should be parity in the weightage given to

the votes cast by each individual. In this sense, reservations

tend to distort the electoral process by giving more weightage

to the voters and candidates from the beneficiary groups as

opposed to those from the general category. With regard to

reservations of chairperson posts, the petitioners have

described a scenario wherein there may be very few persons

from the reserved category in a particular 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

24

the long run, reservations designed on caste lines are likely to

become instruments of political favouritism, thereby fanning

resentment among the people. This would clearly come into

conflict with the preambular objective of promoting a sense of

fraternity among the citizens. In the petitioner’s submissions,

it has been reasoned that the objective of empowering the

weaker sections through political participation will be better

served if a larger number of candidates belonging to these

sections were nominated by political parties to stand for

elections. Based on these submissions, the petitioners in W.P.

(C) No. 356/1994 have prayed for the striking down of Articles

243-D(4) and 243-T(4) since they enable reservations of

chairperson posts in elected local bodies, as well as Articles

243-D(6) and 243-T(6) which enable reservation of seats and

chairperson posts in favour of backward classes. In relation to

the same, the petitioners have also sought the invalidation of

the impugned State legislations, in so far as they provide for

excessive reservation in favour of backward classes and the

reservation of chairperson posts.

25

17. In W.P. 517/2005, Shri Salman Khurshid, learned senior

counsel appearing on behalf of the petitioners has confined

their contentions to two aspects. With regard to reservations in

favour of OBCs in the State of Uttar Pradesh, it has been

contended that the aggregate reservations should not exceed

the upper ceiling of 50%. There is no challenge to the

constitutional validity of Article 243-D(6) and Article 243-T(6)

since they are merely enabling provisions. However, there is a

concurrence between the petitioners in respect 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 relevant rules. The grievance is directed

against the fact that under these State Legislations, 27% of the

26

seats in panchayats have been reserved for OBCs even though

empirical data indicates that nearly 59% of the entire

population of the State of Uttar Pradesh belongs to the OBC

category. It has been contended that this is a clear case of

excessive reservations in favour of a community that is already

in a majority. Akin to the arguments made in respect of the

State of Karnataka, this argument can 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 order to

ensure that the upper ceiling of 50% reservations was not

breached. It was argued that reservation policies should be

either in the nature of compensatory discrimination to address

historical injustices or in the nature of protective

discrimination to protect weaker sections. However, they

27

should not be allowed to become instruments of reverse

discrimination which curtail the rights of persons who do not

belong to the reserved categories.

19. However, the main objection was directed against 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 rights of candidates belonging to the general category. It

was reasoned that unlike candidates in elections to the Lok

Sabha and the State Legislative Assemblies who are free to

contest from different constituencies, candidates in elections

for local bodies will not ordinarily contest in areas other than

those where they are registered as voters. If such migration

were to frequently take place, then that would defeat the

28

objectives of local self-government since the overarching

objective is to empower elected representatives who are

sufficiently interested in the welfare of local communities and

are accountable to them. Hence, the reservation of chairperson

posts in panchayats can have the effect of unduly preventing

persons belonging to the unreserved categories from

contesting these elections. In support of their contentions, the

petitioners have cited some High Court decisions which have

struck down the reservation of chairperson posts in

panchayats, namely those reported as Janardhan Paswan v.

State of Bihar, AIR 1988 Pat 75 and Krishna Kumar Mishra

v. State of Bihar, AIR 1996 Pat. 112.

20. It was contended that the ‘reverse discrimination’ which

takes place in the context of reservations in local

self-government is of a higher degree than what transpires in

case of education and employment. It was reasoned that in

respect of admission to educational institutions and

recruitment to government jobs, the meritorious candidates

who are displaced by reservations at least have alternatives

29

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

considerations of ‘justice to the backwards, equity for the

forwards and efficiency for the entire system’ [M. Nagaraj v.

Union of India, (2006) 8 SCC 212, at para. 44]. In this

respect, it was argued that excessive reservations in favour of

OBCs and the reservation of chairperson posts in panchayats

disrupts the desired balance between these considerations. In

fact the petitioners have also urged us to reconsider some

earlier decisions of this Court which have dealt with the status

of the rights of political 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

30

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) 4 SCC 80, Rama

Kant Pandey v. Union of India, (1992) 2 SCC 438 and Kuldip

Nayar v. Union of India, (2006) 7 SCC 1] This implies that the

rights of political participation are not absolute in nature and

are subject to statutory controls such as those provided in the

Representation of People Act, 1951 among others.

Undoubtedly, reservations in elected local bodies do place

restrictions on the rights of political participation of persons

who do not belong to the reserved categories. In this respect,

the petitioners have contended that this Court should examine

the reasonableness of such restrictions with regard to the

objective of ensuring ‘free and fair elections’ [as observed in

Indira Gandhi vs. Raj Narain, 1975 Supp SCC 1, at Para.

213] as well as the expanded understanding of Article 21 of

the Constitution.

31

SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS

22. Since the constitutionality of some clauses in Art. 243-D

and Art. 243-T have been contested in this case, notices were

issued to all the State governments which had either enacted

fresh legislations or amended existing legislations in

accordance with the mandate of the 73

rd

and 74

th

Amendments. While all of these State Governments were

impleaded as respondents in this case, we had the benefit of

listening to the oral arguments presented by Shri Rajeev

Dhavan, Sr. Adv., who appeared on behalf of the State of

Bihar, Shri Dinesh Dwivedi, Sr. Adv., who appeared on behalf

of the State of Uttar Pradesh, Shri Uday Holla, Sr. Adv., 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.

32

23. The respondents have of course defended the

constitutional validity of reservations in favour of backward

classes [as contemplated under Art. 243-D(6) and 243-T(6)] as

well as reservations of chairperson posts [enabled by Art.

243-D(4) and 243-T(4)] in elected local bodies. For the sake of

convenience, we will first refer to the submissions made by

Shri Rajeev Dhavan, Sr. Adv., since the same were adopted by

most of the other answering respondents. In response to the

petitioner’s contention that the impugned constitutional

provisions violated elements of the ‘basic structure’ doctrine,

Shri Rajeev Dhavan contended 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 reservations in the context of local

33

self-government was quite different from that of education and

employment, it was contended that the objectives of Art.

243-D and Art. 243-T was to pursue the idea of substantive

equality rather than formal equality in the matter of political

representation at the grassroots level. Beginning with the

premise that Constitutional amendments represent the

popular will, it was contended that classifications that are

made by constitutional provisions deserve a higher 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 panchayats and municipalities are in

consonance with these objectives and that the standard of

judicial review over them should be that of proportionality.

34

24. It was further contended that the equality clause should

not be viewed in a strait-jacketed manner and that it should

account for the ‘equality of expectations’ as well as ‘equality of

outcomes’ in the context of political representation at the

grassroots level. This means that while there is an expectation

of equal distribution of political power in representative

institutions, we also have to factor in how the distribution of

power has a bearing on the substantive outcomes and results

for the electorate. In this case, we are dealing with

considerations of horizontal equality in a political sense.

Owing to the complex patterns of inequality in our society,

there may often be a need to depart from the standard of

‘formal equality’ when it comes to expectations about

distribution of political power. Affirmative action is designed to

pursue the goal of substantive equality and for this purpose it

is necessary to take into account the existing patterns of

discrimination, disadvantage and disempowerment among the

different sections of society. It was contended that while such

patterns of inequality were often sought to be ascertained

through empirical studies, a mere emphasis on numbers is

35

not adequate to understand the implications of the same.

Hence, reservations in local self-government have been

introduced to ensure the effective sharing 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 of persons belonging to the

general category, it was contended that we must take a real

view of democracy which is responsive to the existing patterns

of social inequality rather than the formal view taken by the

petitioners. Such a real view of democracy would endorse the

affirmative action taken to empower the traditionally weaker

sections. Even though it was conceded that there has been a

lot of uncertainty in the identification of backward classes for

36

the purpose of reservation policies in the 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

opportunity to clarify whether the phrase ‘backward classes’

which appears in Art. 243-D(6) and Art. 243-T(6) is

coextensive with the ‘Socially and Educationally Backward

Classes’ (SEBCs) contemplated under Articles 15(4) and 15(5)

or with the under-represented backward classes as

contemplated under Art. 16(4).

26. It was further contended that the upper ceiling of 50%

reservations has been contemplated in judicial decisions

dealing with reservations in education and employment. While

the considerations behind the same cannot be readily

37

extended to the domain of political representation at the

grassroots level, it was argued that even if they were to be

applied, the decision in Indra Sawhney decision had

contemplated an exception to the 50% norm in ‘extraordinary

situations’ [See 1992 Supp (3) SCC 217, at Para. 810]. To

support this contention, it was pointed out that reservations in

excess of 50% had been permitted in the Fifth and Sixth

Scheduled Areas and more importantly the Legislative

Assemblies of some States have reservations that are far in

excess of 50% of the number of seats. With respect to the

State legislations under challenge, it was argued that the 50%

ceiling would not be crossed under most of them since it is

only the vertical reservations (i.e. on communal lines in favour

of SC/ST/OBCs) that are taken into consideration for this

purpose. Even though there is a 33% reservation in favour of

women in elected local bodies, the same is in the nature of a

horizontal reservation which intersects with the vertical

reservations in favour of SC/ST/OBC. In such a scenario, the

seats occupied by women belonging to the general category

cannot be computed for the purpose of ascertaining whether

38

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

that the chairperson posts in local bodies are akin to solitary

posts in public employment. Disputing this analogy, it was

contended that as per Art. 243-D(4), the reservation of

Chairperson posts is to be done on a rotational basis and the

frame of reference for the same is the entire pool of

chairperson posts in the local bodies of the whole State. In

such a scenario, it was wrong to characterise chairperson

posts as solitary posts. In response to the suggestion that the

reservation of executive 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

39

traditionally weaker sections can rely on the support of

mainstream political parties if they face undue pressures and

prejudices. However, at the local level, the patterns of

disempowerment, discrimination and disadvantage are far

more pervasive and it will be difficult for weaker sections to

gain an effective say in governance, but for the reservation of

chairperson positions in Panchayats and Municipalities.

28. The respondent’s position was further supported by

Shri Gopal Subramanium (now SG). The Learned SG

responded to the petitioner’s argument that the framers had

deliberated upon the question of reservations in representative

institutions 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 73

rd

and 74

th

Amendments enacted in 1993

had given constitutional recognition to the local

40

self-government institutions, it could not be asserted that

reservations in favour of weaker sections had not been

contemplated before that point of time. To support this line of

reasoning, the written submissions submitted on behalf of the

Union of India have traced the evolution of local

self-government institutions from the pre-constitutional period

to the post-independence period. After referring to the main

recommendations of the Balwantrai Mehta Committee Report

(1957) and the Ashok Mehta Committee Report (1978) which

were in favour of democratic decentralisation, it was urged

that reservations in local self-government were intended to

enable the adequate representation of previously excluded and

marginalized groups while also giving them the opportunity to

play leadership roles. The learned SG further contended that

the spirit behind Arts. 243-D and 243-T was akin to Arts.

15(3), 15(4) and 16(4) which have enabled different forms of

affirmative action in order to pursue the goal of substantive

equality. In this sense, the learned SG has taken a definitive

stand by suggesting that the phrase ‘backward classes’ which

appears in Art. 243-D(6) and 243-T(6) should be coterminus

41

with the Socially and Educationally Backward Classes (SEBCs)

identified for the purpose of reservation enabled by Art. 15(4).

29. Apart from the above, the learned SG has cited numerous

decisions of this Court which have examined and evolved the

idea of ‘substantive equality’, which in turn is identified as

part of the ‘basic structure’ doctrine. 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 subjected to

statutory controls.

THE NATURE AND PURPOSE OF RESERVATIONS IN THE

CONTEXT OF LOCAL-SELF GOVERNMENT IS DIFFERENT

42

FROM THAT IN HIGHER EDUCATION AND PUBLIC

EMPLOYMENT

30. Before addressing the contentious issues, it is necessary

to examine the overarching considerations behind the

provisions for reservations in elected local bodies. At the

outset, we are in agreement with Shri Rajeev Dhavan’s

suggestion that the principles that have been evolved for

conferring the reservation benefits contemplated 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 16(4)

respectively. Specifically with regard to 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

43

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 as follows:

“… Now, after the seventy-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 Legislature of a State may, by law,

provide. Therefore, the reservation in the local bodies like

the Village Panchayat is not governed by Article 16(4),

which speaks about the reservation in the public

employment, but a separate constitutional power which

directs the reservation in such local bodies. …”

We are of course aware of the fact that some decisions in the

past have examined the validity of reservations in local

self-government by applying the principles evolved in relation

to education and employment.

44

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 employment) and ‘election’ (in case of

political representation) does not adequately reflect the

complexities involved. It is of course undeniable that in

determining who can get access to education and employment,

due regard must be given to considerations of merit and

efficiency which can be measured in an objective manner.

Hence, admissions to educational institutions and the

recruitment to government jobs is ordinarily done through

methods such as examinations, interviews or assessment of

past performance. 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

45

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 merit and efficiency. Instead, they are shaped by

subjective factors such as the candidate’s ability to canvass

support, past service record, professed ideology and

affiliations to organised groups among others. In this context,

it is quite possible that candidates belonging to the

SC/ST/OBC categories could demonstrate these subjective

qualities and win elections against candidates from the

relatively better-off groups. However, such a scenario cannot

be presumed in all circumstances. It is quite 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,

46

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 from

access to education and employment on one hand and

political representation at the grassroots level on the other

hand. While access to higher education and public

employment increases the likelihood of the socio-economic

upliftment of the individual beneficiaries, participation in

local-self government is intended as a more immediate

measure of empowerment for the community that the elected

representative belongs to. The objectives of democratic

decentralisation are not only to bring governance closer to the

people, but also to make it more participatory, inclusive and

accountable to the weaker sections of society. In this sense,

reservations in local self-government are intended to directly

benefit the community as a whole, rather than just the elected

representatives. It is for this very reason that there cannot be

an exclusion of the ‘creamy layer’ in the context of political

47

representation. There are bound to be disparities in the

socio-economic status of persons within the groups that are

the intended beneficiaries of reservation policies. While the

exclusion of the ‘creamy layer’ may be feasible as well as

desirable in the context of reservations for education and

employment, the same principle cannot be extended to the

context of local self-government. At the level of panchayats,

the empowerment of the elected individual is only a means for

pursuing the larger end of advancing the interests of weaker

sections. Hence, it would be counter-intuitive to exclude the

relatively 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

48

34. With respect to the challenge against the constitutional

validity of Art. 243-D(6) and 243-T(6) which enable the

reservation of seats and chairperson posts in favour of

backward classes, we are in agreement with the respondents

that these are merely enabling provisions and it would be

quite improper to strike them down as violative of the equality

clause. Admittedly, Art. 243-D(6) and 243-T(6) do not provide

guidance on how to identify the backward classes and neither

do they specify any principle for the quantum of such

reservations. Instead, discretion has been conferred 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 OBC groups are

already well represented in the political space, there is no

principled basis for conferring reservation benefits on them.

49

Based on this premise, it was contended that the reservations

in favour of OBCs do not meet the tests of ‘reasonable

classification’ and proportionality. Furthermore,

apprehensions were voiced that the reservations in favour of

OBCs have emerged as an instrument by which incumbent

State governments can engage in ‘vote-bank’ politics by

preferring one group over another. 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 in the first place. As far as the challenge against the

various State legislations is concerned, we were not provided

with adequate materials or argumentation that could help us

to make a decision about the same. The identification of

50

backward classes for the purpose of reservations is an

executive function and as per the mandate of Art. 340,

dedicated commissions need to be appointed to conduct a

rigorous empirical inquiry into the nature and implications of

backwardness. It is also incumbent upon the executive to

ensure that reservation policies are reviewed from time to time

so as to guard against overbreadth. In respect of the objections

against the Karnataka Panchayati Raj Act, 1993, all that we

can refer to is the Chinnappa Reddy Commission Report

(1990) which reflects the position as it existed twenty years

ago. In the absence of updated empirical data, it is well nigh

impossible for the Courts to decide whether the reservations in

favour of OBC groups are proportionate are not. Similarly, in

the case of the State of Uttar Pradesh, the claims about the

extent of the OBC population are based on the 1991 census.

Reluctant as we are to leave these questions open, it goes

without saying that the petitioners are at liberty to raise

specific challenges against the State legislations if they can

point out flaws in the identification of backward classes with

the help of updated empirical data.

51

36. As noted earlier, social and economic backwardness does

not necessarily coincide 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 reservation benefits in the

domain of education and employment need reservations in the

sphere of local self-government. This is because the barriers to

political participation are not of the same character as barriers

that limit access to education and employment. This calls for

some fresh thinking and policy-making with regard to

reservations in local self-government.

37. In the absence of explicit constitutional guidance as to the

quantum of reservation in favour of backward classes in local

52

self-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 assert that the 50% ceiling had been breached in

some of the States. This was clearly a misunderstanding of the

position since the horizontal reservations in favour of women

are meant to intersect with the vertical reservations in favour

of SC/ST/OBC, since one-third of the seats reserved for the

latter categories are to be reserved for women belonging to the

same. This means that seats earmarked for women belonging

to the general category are not accounted for if one has to

gauge whether the upper ceiling of 50% has been breached.

38. Shri Rajeev Dhavan had contended that since the context

of local self-government is different from education and

53

employment, the 50% ceiling for vertical reservations which

was prescribed in Indra Sawhney (supra.), cannot be blindly

imported since that case dealt with reservations in government

jobs. It was further contended that the same decision had

recognised the need for exceptional treatment in some

circumstances, which is evident from the following words

(at Paras. 809, 810):

“809. From the above discussion, the irresistible

conclusion that follows is that the reservations

contemplated in Clause (4) of Article 16 should not

exceed 50%.

810. While 50% shall be the rule, it is necessary not to

put out of consideration certain extraordinary situations

inherent in the great diversity of this country and the

people. It might happen that in far-flung and remote

areas the population inhabiting those areas might, on

account of their being put of the mainstream of 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

54

States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram

and Sikkim have reservations that are far in excess of the 50%

limit. However, such a position is the outcome of exceptional

considerations in relation to these areas. Similarly, vertical

reservations in excess of 50% are permissible in the

composition of local self-government institutions located in the

Fifth Schedule Areas. In the recent decision reported as Union

of India v. Rakesh Kumar, (2010) 1 SCALE 281, this Court

has explained why it may be necessary to provide reservations

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 of the States may have to modify their

legislations so as to reduce the quantum of the existing quotas

in favour of OBCs.

55

(iii). VALIDITY OF RESERVING C HAIRPERSON POSITIONS

40. The main criticism against the reservation of chairperson

positions in local self-government is that the same amounts to

cent-per-cent reservation since they are akin to solitary posts.

As mentioned earlier, the petitioners have relied upon some

High Court decisions [See: Janardhan Paswan v. State of

Bihar, AIR 1988 Pat 75; 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 would be reserved in

favour of women. As described earlier, the considerations

behind the provisions of Article 243-D cannot be readily

compared with those of Article 16(4) which is the basis for

56

reservations in public employment. It is a settled principle in

the domain of service law that single posts cannot be reserved

under the scheme of Article 16(4) and the petitioners have

rightly pointed out to some precedents in support of their

contention. However, the same proposition cannot be readily

extended to strike down reservations for chairperson positions

in Panchayats. This is because Chairperson positions should

not be viewed as solitary seats by themselves for the purpose

of reservation. Instead, the frame of reference is the entire pool

of Chairperson positions in each tier of the three levels of

Panchayati Raj Institutions in the entire State. Out of this pool

of seats which is computed across panchayats in the whole

state, the number of offices that are to be reserved in favour of

Scheduled Castes and Scheduled Tribes is to be determined

on the basis of the proportion between the population

belonging to these categories and the total population of the

State. This interpretation is clearly supported by a bare

reading of the first proviso to Art. 243-D(4). It would be

worthwhile to re-examine the language of the said provision:

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243-D(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.

41. As may be evident from the above-mentioned provision,

when the frame of reference is the entire pool of chairperson

positions computed across each tier of Panchayati Raj

institutions in the entire 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

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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 is the total

number of Lok Sabha or Vidhan Sabha seats in a State and

not the single position of an MP or MLA respectively. Coming

back to the context of Chairperson positions in Panchayats, it

is therefore permissible to reserve a certain number of these

offices in favour of Scheduled Castes, Scheduled Tribes and

women, provided that the same is done in accordance with the

provisos to Article 243-D(4).

42. In the case of urban local bodies, Art. 243-T(4) also

enables reservation of chairperson posts in favour of

Scheduled Castes, Scheduled Tribes and women. However,

there are no further specifications to guide the reservation of

chairperson positions in urban areas. While it is not possible

for us to ascertain the legislative intent behind the same, one

59

can perhaps theorise that there was an assumption that the

intended beneficiaries are in a relatively better-off position to

overcome barriers to political participation in urban local

bodies, when compared with rural local bodies.

43. It was also contended that since chairpersons of

Panchayats and Municipalities are entrusted with executive

powers, reserving these posts could prove to be the precursor

for reservations of executive offices at higher levels of

government. It was even suggested that the reservation of

chairperson posts was akin to reserving the posts of Chief

Minister and Prime Minister at the State and National level,

respectively. In our opinion, this analogy with the higher levels

of government is misplaced. The offices of chairpersons in

Panchayats and Municipalities are reserved as a measure of

protective discrimination, so as to enable the weaker sections

to assert their 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

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the Lok Sabha and the Vidhan Sabha who can fall back on the

support of mainstream political parties as well as media

scrutiny as a safeguard against marginalization and unjust

discrimination, elected representatives from the disadvantaged

sections may have no such support-structures at the local

level. In this respect, the Union Parliament thought it fit to

enable reservations of Chairperson positions in order to

ensure that not only are the weaker sections adequately

represented in the domain of local self-government, but that

they also get a chance to play leadership roles.

44. The other significant 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 include the rights of elected

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members to choose the chairpersons of Panchayats and

Municipalities. As outlined earlier, it was contended that

reserving these posts has the effect of limiting the choices

available to voters and effectively discourages persons

belonging to the general category from contesting these

elections. Shri Salman Khurshid had made the point that

unlike those who contest elections for the Lok Sabha and the

Vidhan Sabha, it is not viable for those who seek membership

in the local 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, they are in

the nature of legal rights which can be controlled through

legislative means. On this point, we can refer to the following

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observations made by R.M. Sahai, J. in Mohan Lal Tripathi v.

District Magistrate, Rai Bareilly, (1992) 4 SCC 80, Para. 2:

“Democracy is a concept, a political philosophy, an ideal

practised by many nations culturally advanced and

politically mature by resorting to governance by

representatives of the people elected directly or indirectly.

But electing representatives to govern is neither a

‘fundamental right’ nor a ‘common law right’ but a

special right created by the statutes, or a ‘political right’

or ‘privilege’ and not a ‘natural’, ‘absolute’ or ‘vested

right’. Concepts familiar to common law and equity must

remain strangers to Election Law unless statutorily

embodied. Right to remove an elected representative, too,

must stem out of the statute as ‘in the absence of a

constitutional restriction it is within the power of a

legislature to enact a law for the recall of officers’. Its

existence or validity can be decided on the provision of

the Act and not, as a matter of policy.’

In this respect, it may be noticed that the Constitution

empowers the Election Commission of India to prepare

electoral rolls for the purpose of identifying the eligible voters

in elections for the Lok Sabha and the Vidhan Sabhas. This

suggests that the right to vote is not an inherent right and it

cannot be claimed in an abstract sense. Furthermore, the

Representation of People Act, 1951 gives effect to the

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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 petitioners have asked us to reconsider the precedents

wherein the rights of political participation have been

characterised as statutory rights. It has been argued that in

view of the standard of reasonableness, fairness and

non-discrimination required of governmental action under

Article 21 of the Constitution, there is a case for invalidating

the restrictions that have been placed on these rights as a

consequence of reservations in local self-government. We do

not agree with this contention. In this case, we are dealing

with an affirmative action measure and hence the test of

proportionality is a far more appropriate standard for

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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 view of the legitimate governmental objective of

safeguarding the interests of weaker sections by ensuring their

adequate representation as well as empowerment in local

self-government institutions. The position has been eloquently

explained in the respondents’ submissions, wherein it has

been stated that ‘the asymmetries of power require that the

Chairperson should belong to the disadvantaged community

so that the agenda of such Panchayats is not hijacked for

majoritarian reasons.’ [Cited from Submissions 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

65

intended beneficiaries, since they are still dominated by the

traditionally powerful sections. Especially in the case of

elected women representatives at the local level, it is often

argued that the real power is exercised by the male members

of their families. We are also alert to the frequent reports of

instances where women representatives have asserted

themselves, thereby inviting the wrath of the retrograde

patriarchial society. However, there are also increasing reports

about success stories which show that enhancing women’s

participation in local self-government has expanded social

welfare. Irrespective of such concerns about the efficacy of

reservations in local self-government, it is not proper for the

judiciary to second-guess a social welfare measure that has

been incorporated by way of a constitutional amendment. In

light of these considerations, we reject the challenge in respect

of the constitutional validity of Art. 243-D(4) and 243-T(4).

CONCLUSION

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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 constitutional basis for affirmative

action and the principles that have been evolved in

relation to the reservation policies enabled by Articles

15(4) and 16(4) cannot be readily applied in the context

of local self-government. Even when made, they need not

be for a period corresponding to the period of reservation

for purposes of Articles 15(4) and 16(4), but can be much

shorter.

(ii) Article 243-D(6) and Article 243-T(6) are

constitutionally valid since they are in the nature of

provisions which merely enable State Legislatures to

reserve seats and chairperson posts in favour of

backward classes. Concerns about disproportionate

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reservations should be raised by way of specific

challenges against the State Legislations.

(iii) We are not in a position to examine the claims about

overbreadth in the quantum of reservations provided for

OBCs under the impugned State Legislations since there

is no contemporaneous empirical data. The onus is on

the executive to conduct a rigorous investigation into the

patterns of backwardness that act as barriers to political

participation which are indeed quite different from the

patterns of disadvantages in the matter of access to

education and employment. As we have considered and

decided only the constitutional validity of Articles

243-D(6) and 243-T(6), it will be open to the petitioners

or any aggrieved party to challenge any State legislation

enacted in pursuance of the said constitutional

provisions before the High Court. We are of the view that

the identification of ‘backward classes’ under Art. 243-

D(6) and Art. 243-T(6) should be distinct from the

68

identification of SEBCs for the purpose of Art. 15(4) and

that of backward classes for the purpose of Art. 16(4).

(iv) The upper ceiling of 50% vertical reservations in

favour of SC/ST/OBCs should not be breached in the

context of local self-government. Exceptions can only be

made in order to safeguard the interests of Scheduled

Tribes in the matter of their representation in panchayats

located in the Scheduled Areas.

(v) The reservation of chairperson posts in the manner

contemplated by Article 243-D(4) and 243-T(4) is

constitutionally valid. These chairperson posts cannot be

equated with solitary posts in the context of public

employment.

49. With these observations, the present set of writ petitions

stands disposed of.

69

….…………………… CJI

[K.G. BALAKRISHNA N]

…….……………………J.

[R.V. RAVEENDRAN]

…….……………………J.

[D.K. JAIN]

…….……………………J.

[P. SATHASIVAM]

…….……………………J.

[J.M. PANCHAL]

NEW DELHI

MAY 11, 2010

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