Dhrub Narain Rao and another vs The State of Bihar and others

In this set of 12 writ petitions, primal challenge is laid to the validity and the constitutionality of the Bihar Panchayat Raj (Amendment) Ordinance, 1987 (Bihar Ordinance no. 3 of 1987) and in particular to sections 2and 3thereof whereby sections 10and 11of the Bihar Panchayat Raj Act, 1947 have been substituted and materially amended respectively. We have heard the Learned Counsel for the petitioners and on behalf of the respondent-State, the learned Advocate General as also the Learned Counsel for the interveners at great length in view of the seminal significance of the issues involved. It has been stated at the bar that the long pending elections to the Panchayats throughout the State of Bihar are being held up on account of pendency of those cases. The adjudication of the significant issue of the validity of the Ordinance thus brooks no further delay. On the basis of the relevant constitutional provisions, on principle and on precedent, we are unanimously of the view.-

(1) That the equality clause of Article 14of the Constitution equally mandates an equality of franchise for the citizen in the context of elections generally and in particular with regard to the elections to the grass root level of the village Panchayats.

(2) That the prohibition of discrimination on grounds of race or caste enshrined in Article 15 (1) permeates the electoral rights of franchise as well.

(3) That the larger constitutional scheme prohibits any discrimination either in favour of or against the citizens in the field of franchise on the basis of race and caste. To that salutary rule, the solitary exception is provided as a special provision only in Part XVI of the Constitution and that too for a limited period by the warrant of a constitutional mandate only.

(4) That clause (4) of Article 15does not warrant or protect State Legislation discriminating in favour of scheduled castes and scheduled tribes in the field of franchise rights to village Panchayats.

(5) Assuming entirely for the sake of argument that Article 15 (4) is applicable, then the reservation of the solitary post of a Mukhiya (in the self-contained unit of a Panchayat) ex clusively for scheduled castes and scheduled tribes is tantamount to 100% reservation and this is excessive, unreasonable and violative of the rule of equality.

(6) That sections 2and 3of the Bihar Panchayat Raj (Amendment) Ordinance, 1987 (Bihar Ordinance No. 3 of 1987) substituting and amending sections 10and 11respectively of the Bihar Panchayat Raj Act, 1947 suffer from the vice of unconstitutionality and are hereby consequently struck down.

As a necessary consequence, all the writ petitions are hereby allowed, but in view of the very intricate constitutional issues involved, the parties are left to bear their own costs.

Detailed reasons and judgments for the findings and conclusions aforesaid would follow.