Karnataka State Election Commission vs Sri Venkatesha and Others

Jagdish Singh Khehar. C.J.

Respondent Nos. 1 to 6 herein, approached this Court by Ming Writ Petition Nos. 35510-15/2010, with a prayer to strike down the Karnataka Panchayat Raj (Amendment) Ordinance, 2010, in so far as it only puts a cap on the total reservation in favour of scheduled caste, scheduled tribe and backward classes provided under the Karnataka Panchayat Raj Act, 1993, at 50%, without fully enforcing the constitutional mandate in the matter of reservation in Panchayat elections. Respondent Nos. 1 to 6 also prayed for the issuance of a writ in the nature of certiorari, to quash the order dated 15.10.2010 issued by the Karnataka State Election Commission, as well as, the notifications dated 08.11.2010 reserving seats in the Panchayat elections so as to give effect to the order dated 15.10.2010

Writ Petition Nos. 35510-15/2010 came to be disposed of by a learned Single Judge of this Court on 19.11.2010, wherein a direction was issued to the State government, to give effect to the Constitutional mandate contained in Part IX of the Constitution of India, and more particularly to Articles 243D and 243T of the Constitution of India. This according to the Appellant was required to be done, by choosing, "more" politically backward classes/castes for reservation in the ensuing Panchayat elections. This Court by its order dated 19.11.2010 (passed while disposing of Writ Petition Nos. 35510-15/2010), had required the State government, to re-draw the reservation notification, by eliminating the defects therein, i.e., by providing for reservation only on the basis of "political backwardness". It would be pertinent to mention, that for implementing the aforesaid direction, Respondent Nos. 1 to 6 were required to move a representation to the State government within three days (from the date of disposal of Writ Petition Nos. 35510-15/2010- decided on 19.11.2010), wherein they were required to furnish material particulars of "political backwardness" in respect of 199 castes declared by the State of Karnataka as Backward Classes for the State. Needless to mention, that the aforesaid purpose could also be achieved by showing, that certain castes were "politically advanced", and as such, could not be beneficiaries of reservation. Alternatively, this could be done by the private Respondents even by highlighting the castes included in the list of Backward Classes in the State of Karnataka, which had remained unrepresented in the Panchayat elections conducted hitherto before. The State government was in turn directed, to verify the correctness of the information furnished by Respondents Nos. 1 to 6, and to take a decision in the matter within two weeks, so as to provide reservation only to the "more" "politically backward" castes, in the list of Backward Classes.

From the factual narration recorded herein, it is apparent, that a representation had to be made by Respondent Nos. 1 to 6 on or before 22.11.2010. Whereupon, the State government would take a decision thereon by 06.12.2010. If the aforesaid exercise was completed, as noticed above, the election process could be completed before the end of the year. In the aforesaid eventuality, the same would not interfere with the dead line for completing the election process. It is not a matter of dispute, that Respondent Nos. 1 to 6 actually made a representation to the State government within the stipulated, time. A copy of the aforesaid representation was handed over to us during the course of hearing, the same was taken on record and marked as "Annexure-A". Within a day of the representation having been made, the State government passed an order dated 23.11.2010, rejecting the representation made by Respondent Nos. 1 to 6. A copy of the order dated 23.11.2010 passed by the State government, was handed over to us during the course of hearing, the same was taken on record and marked as "Annexure-B". On the same day, ie., on 23.11.2010, the Principal Secretary to Government, in the Rural and Panchayati Raj Department, issued a communication to the State Election Commission ie., the Appellant herein, informing it that the representation made by Respondent Nos. 1 to 6, had been considered by the State government and had been rejected. The State Election Commission was, therefore, required to take further necessary action in the matter of conducting elections, to Taluk Panchayats and Zilla Panchayats. A copy of the communication dated 23.11.2010, addressed to the State Election Commission was handed over to us during the course of hearing, which was taken on record and marked as "Annexure-C".

The Karnataka State Election Commission, has filed the instant writ appeals, so as to assail the order dated 19.11.2010 passed by this Court (while disposing of Writ Petition Nos. 35510-15/2010). The primary purpose of filing the instant appeals by the State Election Commission was, the inevitable delay which would be caused in the electoral process, in case the directions issued by this Court were to be complied with. The different submissions advanced at the hands of the Appellant, while substantiating his aforesaid contention have been recorded by us in detail, while examining the merits of the controversy, raised through the instant writ appeals.

It would be relevant to notice, that the present controversy arises out a recent judgment rendered by the Supreme Court in K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr. (2010) 7 SCC 202. While dealing with the issue of reservation of seats, under Articles 243D and 243T of the Constitution of India (under Part IX of the Constitution of India), and while dealing with the process of reservation in Panchayat elections, the Apex Court recorded the following conclusions in paragraph 32 of K. Krishna Murthy''s case (supra) :

In view of the above, our conclusions are :

(ii) Article 243D(6) and 243T(6) are constitutionally valid, since they are in the nature of provisions which merely enable the State Legislatures to reserve seats and Chairperson posts in favour of backward classes, concerns about disproportionate 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 OB Cs under 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 access to education and employment. As we have considered undecided only the constitutional validity of Article 243D(6) and 243T(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 the "backward classes" under Article 243D(6) and Article, 243T(6) should be distinct from the identification of SEB Cs for the purpose of Article 15(4) and that of backward classes for the purposes of Article 16(4)

(iv) The upper ceiling of 50% vertical reservations in favour of S Cs/S Ts/OB Cs should not be breached in the context of local self-Government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representations in panchayats located in the Scheduled Areas.

(v) The reservation of Chairperson Posts in the matter contemplated by Articles 243D(4) and 243T(4) is constitutionally valid. These Chairperson Posts cannot be equated with solitary posts in the context of public employment.

In so far as the present controversy is concerned, only two conclusions are relevant, namely, the ones drawn at serial No. ''s (iii) and (iv) above.

In order to give effect to the conclusion at Serial No. (iv) in paragraph 82 of the judgment in K. Krishna Murthy''s case (supra), the State of Karnataka, issued an Ordinance dated 04.10.2010, whereby it amended Section 123 of the Karnataka Panchayat Raj Act 1993 (hereinafter referred to as the ''Panchayat Raj Act). Section 123 of the Panchayat Raj Act is being extracted hereunder :

Reservation of Seats -(1) Seats shall be reserved by the State Election Commission in a Taluk Panchayat,

b) For the Scheduled Tribes; and the number of seats so reserved shall bear as merely as may be, the same proportion to the total number of seats to be filled by direct election and the Taluk Panchayat as the population of the Scheduled Caste in the Taluk or of the Scheduled Tribes in the Taluk bears to the total population of the Taluk.

Provided that atleast one seat each shall be reserved in a Taluk Panchayat for the persons belonging to the Scheduled Castes and Scheduled Tribes.

(2) Such number of seats which shall, as merely as may be one-third of the total number of seats in a Taluk Panchayat shall be reserved by the State Election Commission for the persons belonging to the backward classes;

Provided that out of the seats reserved under this Sub-section eighty percent of the total number of such seats shall be reserved by the State Election Commission for the persons falling under category - ''A'' and the remaining twenty percent of the seats shall be reserved by the State Election Commissions for the persons falling under category ''B''.

(3) Not less than one third of the seats reserved for each category of persons belonging to the Schedule Castes, Scheduled Tribes and Backward Classes and those of non-reserved seats in a Taluk Panchayat shall be reserved by the State Election Commission for women.

Provided that the seats reserved under Sub-sections (1), (2) and (3) shall be allotted by rotation to different constituencies in the taluk;

Provided further that nothing contained in this Section shall be deemed to prevent the persons belonging to the Scheduled Castes and Scheduled Tribes of Backward Classes or Women for whom seats have been reserved in a Taluk Panchayat from standing for election to the non-reserved seats in such Taluk Panchayat.

The aforestated Ordinance dated 04.10.2010, made the following amendment in Section 123 :

Amendment of Section 123: In Section 123 of the Principal Act, in Sub-section (2), the following shall be inserted at the end, namely :

But the number of seats reserved for the backward classes under this Sub-section shall be so determined, that the total number of seats reserved for the Schedule Castes and Schedule Tribes under Sub-section (1) and the Backward Classes under this Sub-section shall not exceed fifty percent of the total number of seats in the Taluk Panchayat.

Likewise, Section 162 of the Panchayat Raj Act, was also amended so as to incorporate therein the legal position declared by the Supreme Court in K. Krishna Murthy''s case (supra). Section 162 of the Panchayat Raj Act is being extracted hereunder

Reservation of Seats: (1) Seats shall be reserved by the State Election Commission in the Zilla Panchayat :

(a) for the Scheduled Castes; and

(b) for the Scheduled Tribes ;

and number of seats so reserved shall bear, as nearly as may be, the same portion to the total number of seats to be filled by direction election in the Zilla Panchayat as the population of the Schedule Castes in the District or of the Scheduled Tribes in the District bears to the total population of the District;

Provided that at least one seat each shall be reserved in a Zilla Panchayat for the persons belonging to the Schedule Castes and Scheduled Tribes.

(2) Such number of seats which shall, as nearly, as may be one-third of the total number of seats in a Zilla Panchayat shall be reserved by the State Election Commission for persons belonging to the Backward Classes;

Provided that out of the seats reserved under this subsection, eighty percent of the total number of such seats shall be received by the State Election Commission for the persons falling under category ''A'' and the remaining twenty percent of the seats shall be reserved by the State Election Commission for the persons falling under Category ''B''.

(3) Not less than one-third of the seats reserved for each category of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and those of non-reserved scats in a Zilla Panchayat shall be reserved by the State Election Commission for women;

Provided that the seat reserved under Sub-sections (1), (2) and (3) shall be allotted by rotation to different constituencies in the District :

Provided further that nothing contained in this Section shall be deemed to prevent the persons belonging to the Scheduled Castes or Scheduled Tribes or Backward Classes or women for whom the seats have been reserved in a Zilla Panchayat from standing for election to the non-reserved seat in such Zilla Panchayat.

The amendment made to Section 162 by the Ordinance dated 04.10.2010 is also being reproduced hereunder :

Amendment of Section 162: In Section 162 of the principal Act, in Sub-section (2), the following shall be inserted at the end, namely :

But the number of seats reserved for the Backward Classes under this Sub-section shall be so determined, that the total number of seats reserved for the Scheduled Castes and the Scheduled Tribes under Sub-section (1) and the Backward Classes under this Sub-section shall not exceed fifty percent of the total number of seats in Zilla Panchayat.

It is, therefore, apparent that while amending the provisions of Sections 123 and 162 of the Panchayat Raj Act, the State of Karnataka provided, that reservations in the process of elections conducted for the Panchayats, under Articles 243D and 243T of the Constitution of India, would not exceed a maximum of 50%.

In so far as the aforesaid aspect of the matter, namely, limiting the reservation to a maximum of 50% is concerned, the same is not the subject matter of challenge before us. For reasons of convenience, the instant legal issue, has been described as the first aspect of the matter in the present order. In fact, the learned Counsel for Respondent Nos. 1 to 6 categorically conceded the aforesaid position before us during the course of hearing. (at least, in so far as the adjudication of the present appeal is concerned). It was necessary to record the aforesaid aspect of the matter, because the ordinance dated 04.10.2010, was made the primary basis of challenge by the Respondent Nos. 1 to 6, when they had approached this Court by filing Writ Petition Nos. 35510-35515 of 2010. In fact, the order dated 19.11.2010, passed by the learned single Judge in the aforesaid writ petitions, is the subject matter of challenge at the hands of the rival parties in the present set of writ appeals, as also, in a separate appeal which has been preferred at the hands of Respondent Nos. 1 to 6. Although the writ appeal preferred by Respondent Nos. 1 to 6, against the order dated 19.11.2010, Was originally tagged along with instant writ appeal, the same was later delinked on the basis of a joint request made by the learned Counsel for the rival parties.

In so far as the second aspect of the matter is concerned, the same emerges from conclusion (iii) recorded in paragraph-82 of the judgment rendered in K. Krishna Murthy''s case (supra). It is also necessary, in the aforesaid context, to extract herein paragraphs 51 and 63 of the judgment rendered in K. Krishna Murthy''s case (supra). The same are accordingly being reproduced hereunder:

The nature and purpose of reservations in the context of local-self government is different from that in higher education and public employment

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 243D and 243T. In this respect, we endorse the proposition that Article 243D and 243T 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 and 16(4) respectively.

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 Article 243D(6) and 243T(6) need not necessarily be coterminus with the Socially and Educationally Backward Classes (SEB Cs) (for the purpose of Article 15(4)] or even the Backward classes that are under-represented in government jobs [for the purpose of Article 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.

It is asserted at the hands of the learned Counsel representing the private Respondents herein, i.e. Respondents 1 to 6, that reservation for purposes of election under Articles 243D and 243T cannot be made on the basis of the same measures and standards, which are adopted to determine backwardness, for reservation envisaged under Articles 15(4) and 16(4) of the Constitution of India. It is the submission of the learned Counsel for Respondents 1 to 6, that backwardness contemplated under Articles 15(4) and 16(4) was relatable to educational backwardness, and backwardness based on lack of employment, respectively. But, for purposes of reservation in the electoral process provided for under Part IX of the Constitution of India, and specially under Articles 243D and 243T of the Constitution of India, besides social backwardness, the criteria to determine the basis of reservation has to be "political backwardness". According to learned Counsel for Respondent Nos. 1 to 6, in the decision rendered in K. Krishna Murthy''s case, the Apex Court had clearly expressed, that to determine backwardness under Articles 243D and 243T of the Constitution of India, a "fresh thinking" and a "fresh policy making" was called for, to give effect to the real object/purpose contemplated, under the aforestated provisions of the Constitution of India. It is in the background of the aforesaid observations, recorded by the Supreme Court, that the learned Counsel representing Respondents 1 to 6 asserted, that it was imperative for the State government to first identify genuine backward class castes, i.e., such castes "who are prevented by barriers of political participation", as distinguished from those who are identified as socially backward on the ground of educational backwardness under Article 15(4) of the Constitution of India, or those who are identified as socially backward on the ground of being under-represented in employment under Article 16(4) of the Constitution of India. It is submitted, that unless the aforesaid exercise is undertaken, genuine backward castes, constituting Backward Classes who are "politically backward" cannot be identified, so as to give true meaning and effect to the reservation contemplated under Articles 243D and 243T of the Constitution of India. It is also the assertion of the learned Counsel for Respondents 1 to 6, that in terms of directions issued by the learned single Judge on 19.11.2010, (while disposing of W.P. Nos. 35510-35515 of 2010), Respondents 1 to 6 had already furnished a representation to Respondents 7 and 8, "Annexure-A" suggesting the manner of classifying castes as "politically backward" amongst Backward Classes in the State of Karnataka, for reservation under Articles 243D and 243T of the Constitution of India. It is also contended by the learned Counsel representing the private Respondents, that the aforesaid exercise must be deemed to have already been carried out, in so far as the State of Karnataka was concerned, inasmuch as a report was prepared by the Karnataka Third Backward Class Commission, at the hands of Hon''ble Mr. Justice O. Chinnappa Reddy (the then Chairman of the Karnataka State Backward Classes Commission) as far back as in the year 1990, wherein the issue of "political backwardness" had also been taken into consideration. A copy of Volume I of the aforesaid report was handed over to us during the course of hearing, and the same was taken on record and marked as "Annexure-D". As such, it is submitted, that it would not take much time for the State government to determine the issue of "political backwardness" amongst Backward Classes in the State of Karnataka, within the time stipulated by the learned single Judge, if the State government gives serious consideration to the issue, by making an assessment on the basis of the report, "Annexure-D", and the representations made by Respondent Nos. 1 to 6, "Annexure-A".

As a matter of illustration, Respondents 1 to 6 also informed us, that although Vokkaligas and Lingayats have been depicted as castes within the Backward Classes for the State of Karnataka, yet it is only out of these two castes that Chief Ministers of the State of Karnataka have been appointed from time to time, on most of the occasions. Likewise it is submitted, that the fact that most of the ministerial berths in the cabinet, are also filled from amongst these two castes, is a stark reality, and is a matter of unrefutable public knowledge. Relying on the "Report of the Karnataka Third Backward Class Commission", "Annexure-D", learned Counsel supported his assertion by referring to the following observations recorded therein :

We may begin the discussion relating to the various caste/community groups with a reference to the distribution of political power among the various castes/communities in the State of Kamataka. In the Karnataka Legislative assembly, as constituted at present, there are 57 Lingayats, 43 Vokkaligas, 33 members of the Scheduled Caste, 12 Muslims, 12 Idigas, 9 Brahmins, 8 Marathas, 10 Kurubas, 7 Bedas, 3 Bunts, 6 Balijas, 2 Besthas, 4 Jains, 2 Christians, 2 members of the Scheduled Tribes and 2 Golls, one Vysya, one Uras, one Kodava, one Devadiga, one Halwakki Vakkal, one Rajput and one Kshtriya. The members of the Lok Sabha from the Karnataka constitutencies consist of 8 Lingayats, 5 Vokkaiigas, 4 members of Scheduled Castes, 2 Brahmins, 2 Muslims, 2 Kurubas, one Uras, two Billava, one Beda, and one Christian. The distribution of members of the Karnataka Legislative Council is, 24 Lingayats, 13 Vokkaliga, 9 members of the Scheduled Castes, 7 Brahmins, 4 Muslims, 2 Bunts, 2 Kodagarus, 2 Balajigas, 2 Kurubas, one Ganiga, one Jain and one Vysys.

The Presidentship of Zilla Parishads in the State is distributed in the following manner: Six Vokkaiigas, Two Bunts, One Kodagaru, One Kuruba, One Bestha, One Maratha and One Jain out of a total nineteen.

The membership of the Zilla Parishads is distributed in the following manner: Out of 863, there are Lingayats 254, Vokkaiigas 187, S.C''s 158, S.T''s 46, Brahimins 27, Kurubas 26, Muslims 23, Bedas 21, Marathas 20, Idigas 15, Kurubas 10, Bunts 10, Kodagaru 9, Christian 9, Besthas 8, Vaishyas 6, Gollas 5, Jains 4, Kshatriyas 3, Upparas 3, Balijas 2, Darjis 2, Devanga 2, Tigala 2, Ganiga 1, Halwakki Vakkaliga 1, Mudahar 1, Nayinda 1 and Urs 1.

From these figures, it is easily seen that the Lingayat and the Vokkaliga communities dominate the political scene. The number of members from each of the two communities whether in the Karnataka Legislative Assembly, The Karnataka Legislative Council or the Parliament far exceeds the number to which the community would be entitled strictly on the basis of its population. 28.58% of the members of the Lok Sabha, 27.93% members of the Legislative Assembly and 32.88% members of the Legislative Council belong to the Lingayat community whereas their estimated population is 15.3389% of the total estimated population of the State.

17.86% of the members of the Lok Sabha, 18.02% members of the Legislative Assembly, 17.80% members of the Legislative Council belong to Vokkaliga community whereas their estimated population is 10.8086% of the total population of the State. Socially and educationally backward, or not, the Lingayat and the Vokkaliga Communities appear to be true wielders of political power in the State of Karnataka and that certainly has a bearing on the question whether each of these communities, as such that is, eo nominee, may be identified as socially backward. It may also be interesting to note here that if comparison with the percentage of population is a test, the Brahmin community also wields more political power than its due share. The percentage of members of the Brahmin community in the Lok Sabha is 7.14, in the Legislative Assembly 4.05 and in the Legislative Council 9.59, whereas the estimated Brahmin population is 3.4558% pf the total estimated population of the State. Perhaps, I should mention here that since 1950 that is since India became a Republic, there have been eleven Chief Ministers of the State, Five of them were Lingayats-Sarvashri Nijalingappa, B.D. Jatti, Nijalingappa, S.R. Kanthi, Nijalingappa, Virendra Patil, S.R. Bommai, Virkendra Patil. Three were Vokkalingas-Sarvashri. K.C. Reddy, K. Hanumathaiah, Kadidal Manjappa and two were Brahmins-Shri. Gundu Rao, Shri. R.K. Hegde. The only other Chief Minister Shri. Devaraj Urs was from the Urs community, the community of the erstwhile Maharaja of Mysore....

... If Lingayats and Vokkaligas are the political masters, the Brahmins are the social, educational and establishment leaders

The political dominance of the three communities, Lingayats, Vokkaligas and Brahmins appears almost to be reflection of the ownership of land in the State of Karnataka, though it may not be in the same promotion. Out of the 13,058 persons who made declarations of surplus land holdings under the Land Reforms Act, 6,044(46.30%) were Lingayats, 1820 (13.90%) were Vokkalingas and 1,795 (13.80%) were Brahmins....

From whatever angle viewed, whether from the view-point of the number of Surplus Landholders or the extent of land as revealed by the test-survey the Vokkaliga and the Lingayat communities emerge as the leading landowners of Karnataka. They are not only the political masters but also the economic masters of rural Karnataka. However, it must also be remembered that some of the communities who appeal to own less land per 100 persons than the general average are trading castes like Vaisya and Balijas or artisan castes like Devanga. Some are urban oriented like the Mudaliar community. In their case not owning greater extent of land does not indicate any inferior economic position .

It was contended on behalf of Respondent Nos. 1 to 6, on the basis of the exercise carried out by the Karnataka Third Backward Class Commission, that it had recommended the exclusion of the aforesaid two castes (amongst others) from the list of Backward Classes in the State of Karnataka. As such, according to learned Counsel representing Respondent Nos. 1 to 6, at least the aforesaid two castes, cannot be allowed the benefit of reservation in the ensuing Panchayat elections. It is the pointed assertion of the learned Counsel for Respondent Nos. 1 to 6, that even if the entire exercise, contemplated in the order passed by the learned Single Judge cannot be completed, within the time frame allowed by the learned Single Judge, at least the "politically advanced" castes in the State should be excluded from reservation. This exercise, according to learned Counsel, would substantially serve the purpose of reservation, contemplated under Articles 243D and 243T of the Constitution of India, as also the law declared by the Supreme Court, in the matter of Panchayat elections, in K. Krishna Murthy''s case (supra).

Learned Counsel for the Appellant, as well as, the learned Advocate General of Karnataka representing Respondent Nos. 7 and 8, have strongly contested the submissions made at the hands of the learned Counsel representing Respondents 1 to 6. It is asserted at the hands of Respondents 7 and 8, that backward classes have been defined u/s 2(2) of the Panchayat Raj Act. Section 2(2) of the Panchayat Raj Act is being extracted hereunder:

(2) Backward Classes" means such class or classes of citizens as may be classified in category "A" and "B" and notified by the Government from time to time for the purpose of reservation of seats and offices of Chairperson in Zilla Panchayat, Taluk Panchayat and Grama Panchayat

Based on the aforesaid definition of the issue backward class, it is asserted, that the State government has issued two list of Backward Class candidates, wherein 190 castes have been placed in List-A, and Anr. 09 castes have been placed in List-B. It is asserted, that these 199 castes constitute the Backward Classes, for the State of Karnataka. It is submitted, that no reference has been made in the entire writ petitions to Section 2(2) of the Panchayat Raj Act, or to the lists issued by the State government depicting the castes included in the list of Backward Classes, for purposes of reservations, in the State of Karnataka. It was also pointed out, that no challenge has been made either to Section 2(2) of the Panchayat Raj Act, or to the list of Backward Class caste framed by the State government. In the absence of any such specific challenge, it was the contention of the learned Counsel for the Appellant and the learned Advocate General, that it is not open to Respondents 1 to 6 to raise any such challenge before this Court.

The aforesaid submission, advanced at the hands of the learned Counsel for the Appellant and the learned Advocate General, was sought to be refuted, by inviting our attention to paragraph 12 of the writ petitions (out of which the instant writ appeals arise). Para-12 relied upon by the learned Counsel representing Respondents 1 to 6 is being reproduced herein :

In view of this cateogorical declaration of law, it is imperative that the Respondent-State first identifies genuine backward classes who are prevented by barriers to political participation as distinguished from those who are identified as socially and educationally backward classes for the purpose of Article 15(4) of the Constitution of India or even the backward classes that are underrepresented in Government jobs for the purpose of Article 16(4) of the Constitution of India. Unless the said exercise is undertaken and genuine backward classes who are politically backward are identified, it is not open to impose any ceiling oft the quantum of reservation as provided under the impugned ordinance. Thus, the impugned ordinance runs counter to the mandate of the law declared by the Hon''ble Supreme Court

Another submission advanced by the learned Counsel for the Appellant and the learned Advocate General, was on the conclusion recorded at Sl. No. (iii) of paragraph 82 of the judgment rendered in K. Krishna Murthy''s case (supra), namely, that the Ordinance dated 04.10.2010 had not altered the reservation criteria, which came to be incorporated under the Panchayat Raj Act, and as such, if the challenge is only based on the Ordinance dated 04.10.2010, it is not open to Respondents 1 to 6 to raise the plea of valid reservation, as has been sought to be done by the learned Counsel representing Respondents 1 to 6.

In so far as the aspect of the matter raised in the preceding paragraph is concerned, it is the submission of the learned Counsel representing Respondents 1 to 6, that the cause of action to raise the instant contention became available to Respondents 1 to 6, only after the Supreme Court rendered its judgment in K. Krishna Murthy''s case, and as such, when the State government ventured to rectify the provisions of the Panchayat Raj Act, on the basis of the said judgment, by ignoring a vital aspects of the matter, Respondent No''s 1 to 6, were well within their rights to raise the same. Additionally, it is submitted, that it was wholly unjustified for the opposite parties, to raise any such plea so as to defeat the implementation of a Constitutional mandate, merely on the basis of technicality.

According to the learned Counsel for the Appellant and the learned Advocate General, elections under all circumstances must be held prior to 16.01.2011, inasmuch as, the term of 5 years would expire for the first set of elected candidates on 16.01.2011, and as such, delay in the process of election would defeat the purpose contemplated under Part IX of the Constitution of India. In this behalf, it was pointed out, that the State government had requisitioned electronic voting machines from the Central government, and in case the process of election was delayed, it would have to return the voting machines of the Central government, at a great financial loss. It is also submitted, that during the last few weeks of the current year, population census work has to be carried out, for which a separate calendar has been issued, and in case the instant process of election is postponed, it may not be possible to engage sufficient number of employees (2,96,970), required for carrying out the election process under reference.

It is contended on behalf of the learned Counsel for the Appellant, as also, at the hands of the learned Advocate General, that the representation dated 22.11.2010, "Annexure A" filed at the hands of Respondent Nos. 1 to 6, has been considered by the State government whereupon a detailed order dated 23.11.2010, "Annexure-B", has already been passed rejecting the same. A perusal of the rejection order dated 23.11.2010 indicates that the primary basis for rejecting the representation, "Annexure-A", made by Respondent No''s 1 to 6 is, that it is impossible to effectively complete the exercise atleast for purpose of implementation in the present electoral process. In this behalf, it is sought to be asserted at the hands of the learned Counsel, that a limited exercise, so as to exclude some of the politically advanced castes would be improper, as the same would serve no serious purpose. In any case, it is submitted, that the issue of classifying castes as "politically backward" so as to distinguish them from those considered as "politically advanced" is to be based on a policy decision of the State government, a criterion has to be evolved, which has not yet been determined. And as such, for the, present it is not possible to effect any change in the list of Backward Classes. It is sought to be asserted that, only after the relevant criterion, has been laid down for the purpose of asserting the "political backwardness" of castes, the contemplated exercise will be possible. And only thereafter, can be legitimately carried out. It is asserted that the available time being short, the instant exercise could possibly be carried out and implemented only for the next Panchayat elections.

So as to assert that in matters of policy, the Government alone was competent to take decisions, and that, interference at the hands of Courts is impermissible, the learned Advocate General invited our attention to the observations rendered by the Supreme Court in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., wherefrom, he placed reliance on the following observations :

Whether the policy of the Government can be subjected to judicial review?

The action of the Government in making provision for the reservation of appointments or posts in favour of any ''backward class of citizens'' is a matter of policy of the Government. What is best for the ''backward class'' and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservation is a matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review or judicial interference except on the grounds which are well settled by a catena of decisions of this Court....

To sum up judicial scrutiny would be available (i) if the criterion inconsistent with the provisions of Article 16 is applied for identifying the classes for whom the special or unequal benefit can be given under the said Article; (ii) if the classes who are not entitled to the said benefit are wrongly included in or excluded from the list of beneficiaries of the special provisions. In such cases, it is not either the entire exercise or the entire list which becomes invalid, so long as the tests applied for identification are correct and the inclusion or exclusion is only marginal; and (iii) if the percentage of reservations is either disproportionate or unreasonable so as to deny the equality of opportunity to the unreserved classes and obliterates Article 16(1). Whether the percentage is unreasonable or results in the obliteration of Article 16(1), so far as the unreserved classes are concerned, it will depend upon the facts and circumstances of each case, and no hard and fast rule of general application with regard to the percentage can be laid down for all the regions and for all times.

Reservation being negative in content to the right of equality guaranteed to every citizen by Article 16(1) it has to be tested against positive right of a citizen and a direct restriction on State power. Judicial review, thus, instead of being ruled out or restricted is imperative to maintain the balance. The Court has a constitutional obligation to examine if the foundation for State''s action was within constitutional periphery and even if it was, did the Government prior to embarking upon solving the social problem by raising, ''narrow bridge'' under Article 16(4), to enable the ''weaker sections of the people to cross the rubicon'' discharged its duty of a responsible Government by constitutional method so as to put it beyond any scrutiny by the ''eye and ear'' of the Constitution. What comes out of preceding discussion can be reduced thus :

(i) (a) Identification of backward class of persons and their inadequate representation in service are the basic or jurisdictional facts to empower the State to exercise the power of reservation.,

(b) Either of the conditions precedent are assailable and are subject to judicial review.

(ii) Reservation of appointments and posts under Article 16(4) can be challenged if it is constitutionally invalid or even if it disturbs the balance of equally guaranteed under Article 16(1) for being unreasonable or arbitrary.

(iii) Burden to prove that reservation does not violate constitutional guarantee and is reasonable is on the State".

700..... (1) Reservation in public services either by legislative or executive action is neither a matter of policy nor a political issue. The higher courts in the country are constitutionally obliged to exercise the power of judicial review in every matter which is constitutional in nature or has potential of constitutional repercussions.

We have given our thoughtful consideration to the submissions advanced by the learned Counsel for the rival parties. First and foremost, what has to be kept in mind, is that the judgment rendered by the Supreme Court in K. Krishna Murthy''s case (supra) was delivered on 11.05.2010, wherein, not only the scope and extent of reservation in the matter of Panchayat elections was defined, but the Apex Court also expressly defined the parameters on the basis whereof the said reservation was to be made. Therefore, paucity of time cannot be a valid and legitimate excuse. Secondly, it is on the basis of the aforesaid judgment, and for giving effect to the same, that the State government issued the Ordinance dated 04.10.2010, so as to amend the provisions of Sections 123 and 162 of the Panchayat Raj Act. And despite the aforesaid, the State government chose, not to fully implement the judgment. Thirdly, in implementing the decision rendered by the Supreme Court in K. Krishna Murthy''s case (supra), the State government chose to give effect to only a part of the determination rendered by the Court ie., to put a cap on the outer limit of reservation in matters relating to Panchayat elections to 50%. Reservations beyond 50%, would have rendered the election process legally and constitutionally invalid. But, the State government left out another significant part of the direction relating to the issue of reservation unattended. By choosing not to determine reservation on the basis of "political backwardness", the State government overlooked the fact, that the election process would be rendered invalid, also in respect of candidates who were elected on reserved seats, but did not belong to "politically backward" castes. Fourthly, governance in India is regulated by the provisions of the Constitution of India. Any governance in violation of the provisions of the Constitution of India cannot be termed as valid and legitimate. The legitimacy of the democratic process itself being the issue of consideration, there can be no laxity therein. Fifthly, the State government having accepted the declaration of law expressed in K. Krishna Murthy''s case (supra) on the interpretation of Articles 243D and 243T of the Constitution of India, was also bound to give effect to the declared basis of reservation, while providing for reservations in the matter of Panchayat elections.

It is in the background of the inferences drawn in the foregoing paragraph, that we shall endeavour to consider the submissions advanced at the hands of the learned Counsel for the Appellant, as also, the learned Advocate General. In our considered view, it is not justified for the Appellant to contend, that the dead line contemplated under the provisions of the Constitution of India would be breached if the directions issued by the learned single Judge on 19.11.2010 were to be complied with. Based on the acknowledged factual position, the aforesaid dead line would be breached only if the electoral process transgressed beyond 16.01.2011. The directions issued by the learned Single Judge, however, leaves sufficient room for the electoral process to be completed before the end of the year. In our considered opinion, the fact that the State government would have to incur a financial loss on the electronic voting machines requisitioned from the Central government, is nothing but a lame excuse One must understand, that the actual process of voting would take only a day (or at the most a couple of days), if that is so, it is also futile to contend, that the population census work, would be adversely affected, by any delay in the election process. We are accordingly satisfied, that these objections deserve to be rejected summarily.

It is also unacceptable to permit any entity including a State government, to raise any technicality plea, so as to avoid governance within the frame work of the provisions of the Constitution of India, and/or the law declared at the hands of the Supreme Court of India. While acknowledging the constitutional mandate providing for reservation, on the basis of "political backwardness", in the matter of Panchayat election, the technical pleas advanced on behalf of the State government seem to suggest, that the State government is desirous of violating the constitutional mandate this time, but hopes to comply with the same for the next election. Could it be, that the responsibility is sought to be transferred by those in power this time, to those who may be in power, the next time? We are left with the feeling, that the instant submissions came to be advanced, without evaluating the full and true effect/implication thereof. We are of the view, that State government was not unaware of the directions contained in the judgment rendered by the Supreme Court in K. Krishna Murthy''s case (supra). The said judgment was rendered on 11.05.2010. In fact the very purpose of issuing the Ordinance dated 04.10.2010, was to give effect to the aforesaid judgment. However, while giving effect to the aforesaid judgment, the State government selectively chose to put a cap on the maximum reservation, so as to, limit reservations to 50%; without giving effect to the law also declared therein, that reservation for purpose of Panchayat elections were to be based on "political backwardness". We are afraid, it will not be possible for us to accept any technical plea, raised to defeat the mandates of the provisions of the Constitution of India.

Although there can be no two opinions to the submissions advanced at the hands "of the learned Advocate General, that policy decisions have to be rendered by the State government, without any interference (at the hands of a Court), but then, is it open to the State government to drag its feet for the said purpose? Is it open to the State government to justify governance, in violation of the provisions of the Constitution of India? Is it open to the State government, to conduct itself in a manner contrary to the law declared by the Supreme Court? We are afraid, not. The report of the Karnataka Third Backward Class Commission, Annexure-D, as also, the detailed representation made by Respondents 1 to 6, have been summarily rejected by the State government, it seems, without due application of mind, on the very next day after the representation was made, even though two weeks time was granted by the learned Single Judge to the State government. We wish to cast no aspersions, nor should we be taken to be casting any aspersions. All that we desire to record is, that if the State government had the will, it would have found a way. And even if full effect could not be given to the judgment in K. Krishna Murthy''s case (supra) a genuine and legitimate beginning could have been ventured. This could be done, by excluding reservation from the list of Backward Classes at least for those castes which are recognized by all, as "politically advanced" castes in the State of Karnataka.

It is wholly misconceived for the State government to contend, that the exercise under reference has to be carried out in its entirety, or that, piece-meal action would not satisfy the requirements of anyone. We are afraid, that the instant impression is wholly misplaced. It seems, that no one in the State of Karnataka, will have any difficulty in arriving at the conclusion, that some of the castes declared as Backward Classes in the State of Karnataka, are certainly not "politically backward". As a first step, it would be legitimate for the State government, to exclude all the known, accepted and acclaimed "politically advanced" castes from the lists of Backward Classes, for the purpose of reservation in the ensuing Panchayat elections. It is not for us to point out the castes, for that, as the learned Advocate General asserts, falls in the realm of the jurisdiction vested in the State government. It is difficult to understand, what restrains the State government, if a few "politically advanced" castes, which are beyond the pale of any doubt, are excluded from the list of Backward Classes. Could it be, that the castes holding the reigns of power in the State of Karnataka, desire the benefit of reservation to continue, for members of their own caste? We refrain from venturing any answer to the aforesaid question. We would rather leave it to the conscience of those who govern, to take the call. If in their wisdom, the occasion for a decision has arisen, and if, they have the will to take the democratic process forward, it is up to them to act now. For by removing, some of the "politically advanced" castes from the list of Backward Classes, will itself ameliorate the aspirations of the truly "politically backward" castes. The exercise, can be directed at removing the castes which are most definitely "politically advanced" from the list of Backward Classes. This exercise, can most definitely be carried out within the time frame expressed by the learned Single Judge. The instant initiative can be carried out without extensive deliberations. If the political governance in the State, however, desires to ignore the constitutional mandate, it can obviously shield itself, through various technical objections and excuses.

It is also futile to contend, that no challenge has been raised to the provisions providing for reservation under the Panchayat Raj Act. Or that, the two lists of castes, falling in list of Backward Classes, have not been assailed by Respondent No''s 1 and 6, in the writ petition filed by them. Since the instant issue has now been raised, even according to the observations recorded by the Supreme Court in Indra Sawhney''s case (supra) it should be clearly understood, that judicial review, would be permissible at the hands of affected individuals, to assail the election of those who have been returned against seats reserved for Backward Classes, on the ground that the castes to which they belong, were actually not "politically backward". Accordingly, we are satisfied that those who are engaged in policy making, to reexamine the matter inspite of the order passed on 23.11.2010, "Annexure-B", so as to exclude such of the castes from the lists of Backward Classes which are known and accepted to be "politically advanced", as this would also avoid unnecessary and unwanted litigation after the election process is over.

Democracy being one of the basic structures of the Constitution of India, cannot be allowed to be faultered, so as to suit one or the other, including those who presently rule the State. We therefore hereby direct the State government to examine the issue afresh, and before the calendar of events for the Panchayat elections is issued, to exclude at least those castes which are pre-dominantly "political advanced" from the lists of Backward Classes. In issuing the instant direction, we have refrained to transgress into the territory, not within the domain of the judiciary, yet we have required those responsible to take the first positive steps in the direction (even if it is not the whole step) so that the provisions of the Constitution of India and the judgment rendered by the Supreme Court in K. Krishna Murthy''s case (supra) are given due effect.

If still the State government feels some inability in the matter, so as to prevent it from even taking the first step suggested by us, within the time frame drawn by the learned single Judge, we would permit the Appellant ie., the Karnataka State Election Commission, without saying anything further, to commence the electoral process (for the Panchayat elections) in terms of the directions recorded by the learned single Judge, so that the results can be announced before 16.01.2011, and the deadline can be met.

Disposed of accordingly.