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Judgment
Ashok B. Hinchigeri, J.—The Petitioners have called into question Karnataka Panchayat Raj (Amendment) Ordinance 2010 (Karnataka Ordinance No. 3/2010) insofar as it imposes 50% ceiling on reservation for persons belonging to Scheduled Castes and Scheduled Tribes and Backward Classes (S. Cs, S. Ts and B. Cs respectively).
Sri Ravivarma Kumar, the learned Senior Counsel appearing on behalf of the Petitioners submits that the cause of social justice would suffer if the upper ceiling of 50% reservation in favour of S. Cs, S. Ts and B. Cs is imposed, as is being done by the impugned Ordinance. He brings to my notice, the provisions contained in Article 243D(1) and (6) of the Constitution of India. They are extracted hereinbelow:
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.
(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.
Sri Ravivarma Kumar brings to my notice the provisions contained in Section 162(1) and (2) of the Karnataka Panchayat Raj Act, 1993 (hereinafter referred to as ''the said Act''). They read as follows:
Reservation of seats.- (1) Seats shall be reserved by the State Election Commission in the Zilla Panchayat,-
(a) for Scheduled Castes; and
(b) for the Scheduled Tribes;
and 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 the Zilla Panchayat as the population of the Scheduled 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 Scheduled Castes and the 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 Sub-section, eighty per cent 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 per cent of the seats shall be reserved by the State Election Commission for the persons falling under category ''B''.
Based on the afore-extracted constitutional and statutory provisions, he submits that the reservation for persons belonging to Scheduled Castes and Scheduled Tribes has to be strictly in proportion to their population percentage in any district. What follows from the constitutional and statutory prescription and the impugned Ordinance is that if in any district, the persons belonging to Scheduled Caste and Scheduled Tribe constitute 50% of the total population of that district, then the B. Cs do not get any reservation. Therefore, he would urge that the imposition of the cap of 50% be struck off.
He brings to my notice the latest Hon''ble Supreme Court''s judgment in the case of K. Krishna Murthy Dr. and Ors. v. Union of India and Anr. (2010) 7 SCC 202 to advance the contention that the nature and purpose of reservation in the election are different from the reservation benefits contemplated by Article 15(4) and 16(4) of the Constitution of India. Social and economic backwardness does not necessarily coincide with the political backwardness, because the barriers to political participation are not of the same character as the barriers which limit excess to education and employment. Politically some B. Cs are more backward than the S. Cs and S. Ts. The total elimination of reservation for B. Cs in the districts having the S.C./S.T. population of 50% or more would entail in an unfortunate situation where the minor and tiny castes would be deprived of the representational opportunities. The exclusion of the minorities could make the governance less participatory, render the Government less accountable to the weaker sections of society.
The last ditch submission of Sri Ravivarma Kumar is that if the reservation in the elections to the Panchayats are to be pegged down to 50%, then the reservation has to be given to the more backward groups amongst the B. Cs. He submits that people belonging to B.C.A (in which category 190 castes are enumerated) are more backward than the persons belonging to B.C.B category (in which category 9 castes are enumerated). This position cannot be disputed with any rate of success, so contends Sri Ravivarma Kumar. He would therefore contend that in the regime of diminished reservation for B. Cs, the reservation be restricted only to B.C.A category. On being asked, Sri Ravivarma Kumar submits that the Petitioners are in a position to furnish, at a short notice, the material particulars as to which B. Cs have been represented and which have not been represented in the Panchayats all these years.
Sri Ashok Haranahalli, the learned Advocate General appearing for the Respondent Nos. 1 and 2 submits that the Ordinance is brought in only to bring the reservation provisions in conformity with the Hon''ble Supreme Court''s decision in K. Krishna Murthy(supra). He submits that when the Apex Court itself has fixed the upper ceiling reservation of 50%, the same cannot be breached by the State Government. He submits that the Apex Court has made the exception only in the case of Scheduled Tribes in the matter of their representation in the Panchayats located in the Scheduled Areas. He further brings to my notice that the Hon''ble Supreme Court''s judgment in the case of K. Krishna Murthy (supra) was ordered to be circulated amongst all the State Governments. The Ordinance issued pursuant to and in compliance with the Hon''ble Supreme Court''s decision cannot be held to be bad.
The learned Advocate General submits that as per the definition contained in 2(2) of the said Act, backward classes mean such class or classes of citizens as may be classified as cateogry "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. Going by this definition, the submission urged on behalf of the Petitioners that the people belonging to B.C.A category are more backward than those belonging to B.C.B category cannot be accepted on its face value, that too in the absence of the collection of the data, so contends the learned Advocate General.
The learned Advocate General submits that providing reservation for the B. Cs is only an enabling provision. The same cannot be equated with the mandatory requirement of giving reservation to S.C/S. Ts. Deciding as to which are the backward classes and which amongst them is more backward are all to be taken by the Government. They fall within the policy formation realm of the Government. The Petitioners cannot claim as a matter of right that some castes be considered as B. Cs or claim to be more backward.
The learned Advocate General submits that there are no pleadings and no prayers in the writ petition for giving reservation to the more backward castes/classes. He has relied on the Apex Court judgment in the case of Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another, , wherein it is held that Courts are not authorised to make the disembodied pronouncements on serious and cloudy issues of constitutional policy without the battle lines being properly drawn. No important point of law should be decided without a proper lis between the parties properly ranged on either side and a crossing of the swords.
The learned Advocate General submits that in some States like Kerala and Tamil Nadu, there is no reservation for the B. Cs whatsoever. In Gujarat, the reservation for backward classes in local bodies is only 10%.
The learned Advocate General further submits that if the elections are postponed, then the administrator has to be appointed as soon as the present elected bodies complete their term. Whenever administrators are appointed, the Central Government refuses to give the funds to the local bodies. He also submits that the elections to the Zilla Panchyats and Taluk Panchayats cannot be put off to next year as the holding of the elections cannot clash with the census work scheduled to commence in January 2011.
Sri K.N. Phanindra, the learned Counsel for the Respondent No. 3 submits that under Article 243E(3)(a) of the Constitution of India, the election to the Panchayat are to be completed before the expiry of its duration. He submits that the tenure of the present elected bodies is coming to an end on different dates in January 2011.
Sri Phanindra submits that the Ordinance has the force of law and that therefore the Petitioners have no vested right to challenge the same. He submits that the third Respondent State Election Commission has made all the preparations for holding the elections. The electoral roils are prepared, funds are released to the Deputy Commissioners towards the expenses for conducting elections and the Electronic Voting Machines (EV Ms) are secured. It has also borrowed some of the machines from the Election Commission of India. If the elections are put off on the B.C issue or any other issue, the 3rd Respondent has to send back the EV Ms incurring enormous transportation costs. He relies on the Apex Court''s judgment in the case of Kishansing Tomar Vs. Municipal Corporation of the City of Amedabad and Others, , wherein it is held that the State Election Commission is duty-bound to carry out the mandate contained under Article 243E of the Constitution of India to conduct the elections to the Panchayat before the expiry of the term of the existing bodies.
Sri Phanindra takes exception to the omnibus prayer of the Petitioners for quashing the reservation notifications in respect of all the Zilla Panchayats, as if this is a public interest litigation.
He submits that the demand for 33% reservation for B. Cs is not traceable to any provision of the Constitution or of any statute. He submits, with reference to the Average Percentage Chart [Annexure R-3(U), that in actuality there is not much of a decline in the reservation for the B. Cs.
On the Court asking Sri Phanindra as to what is the prevailing scenario in other States, he has filed a memo. The same reads as follows:
It is submitted that the 3rd Respondent has secured telephonically, the information in respect of the percentage of Reservation for Backward Classes in Panchayats, existing in 4 different States in the Country. The same are set out hereunder:
Andhra Pradesh : 1/3rd of Seats (33%)
Bihar : 20% for Very Low BC (Ann ''2'')
Note: Superior BC (Ann ''1'')
Does not have any Reservation
Gujarat : 10% of Seats.
Delhi and Chandigarh : No Reservation for BC.
It is prayed that the memo may kindly be taken on record in the above writ petition, in the interest of justice and equity.
On hearing the learned advocates, I formulate the following questions for my consideration:
(a) Whether the impugned Ordinance imposing the upper ceiling limit of 50% on reservation in Panchayats is sustainable?
(b) What relief can be given to the Petitioners?
To answer the first question, it is necessary to refer to the operative portion of the Hon''ble Supreme Court''s judgment in the case of K. Krishna Murthy (supra), which is contained in para-82. It is extracted hereinbelow:
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, Article 243D and Article 243T 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 of corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter.
(ii) Article 243D(6) and Article 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 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 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 "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 purpose 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 representative in panchayats located in the Scheduled Areas.
(v) The reservation of chairperson posts in the manner contemplated by Articles 243D(4) and 243T(4) is constitutionally valid. These chairpersons posts cannot be equated with solitary posts in the context of public employment.
In view of conclusion No. (iv) extracted hereinabove, the imposition of the cap of 50% reservation does not require any quashing or modification. The Respondents 1 and 2 have only acted to bring the reservation provision in conformity with the Apex Court''s judgment. Article 144 of the Constitution of India states that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. Under Article 141, the law declared by the Supreme Court shall be binding on all the Courts within the territory of India.
Therefore, I cannot but answer the first question in the affirmative. The challenge to the impugned Ordinance stands negatived. Consequently, the prayer for a writ of mandamus not to impose 50% ceiling stands rejected.
However, the failure of the Petitioners to persuade this Court to quash the impugned Ordinance does not mean that they are not entitled to any relief. The reliefs are required to be moulded.
If the reservation for B. Cs is going to be reduced by virtue of the impugned Ordinance, it is necessary and just that the State Government identifies the more backward classes. The ends of justice require that, if all the castes or classes, considered and classified as backward, cannot be given the benefit of reservation, it is incumbent upon the State Government to undertake the excise of identifying the more backward castes among the B. Cs. In this situation, the difference has to be not one of kind but of degree.
In Krishna Murthy''s case (supra), the Hon''ble Supreme Court has put the onus on the Government to examine the patterns of backwardness. It is held therein that the concerns about disproportionate reservations should be raised by way of specific challenges against the State legislations.
This Court has no doubt that the Government is also keen on doing justice to the cause of the B. Cs. But it is not forthcoming as to what investigation into the patterns of political backwardness is made by the Government, from May 2010 [in which month the Hon''ble Supreme Court has passed the judgment in K. Krishna Murthy''s case (supra)]. The State Government has to examine who (which particular backward class or caste) has gone unrepresented; it has to provide for the reservation for such categories. To make the system more participatory and to ensure the inclusive political growth, the more backward among the backward ones only are to be given the representational opportunities by providing the reservation to them.
The Petitioners are directed to submit, within 3 days from today, a representation to the Government furnishing the material particulars as to which of the 190 castes in category B.C.A and 9 castes in B.C.B have gone unrepresentated in the Panchayats hitherto. Thereafter the Respondent Nos. 1 and/or 2 shall verify the correctness of the information furnished and claims made and take a decision in the matter of providing reservation to the more backward amongst the backward ones.
The Respondent No. 1 and/or 2 shall take a decision in the matter within two weeks from the date of receipt of representation from the Petitioners.
What should be the barometers to determine the politically backward caste? Which castes ere more backward than others? These are all the matters, which have to be left to the Government. Needless to observe that the Government may consult such persons, organizations and ascertain the views of the cross-sections of the people as it deems fit before taking a decision in the matter. It is for the State Government to make the comparative analysis of the prevailing scenario in other States. Prima facie it appears that the Petitioners'' request for providing the reservation to the more backward castes is on the lines of the Bihar model.
It is made clear that the elections shall not be put off. I am informed at the bar that the Respondent No. 3 has not yet issued the declaration on the issuance of which the Deputy Commissioners of the respective districts would be publishing the calendar of events. I am also informed that this whole process would take the time from 23 days to 30 days. If the representation is filed within 3 days from today and if the same is considered within two weeks thereafter, then also the process of holding the elections can commence around 10th of December; and the process can be completed within 5th of January, well before the term of the existing elected bodies comes to an end. The chart at Annexure R-3(A) shows that the terms of the existing elected bodies of Zilla Panchayats and Taluk Pachayats is expiring around and after 15.01.2011.
The State Government shall do everything that is humanly possible to consider doing full justice to the more politically backward classes/castes, even if it means racing against the clock. All the constitutional functionaries are oath-bound and duty-bound to secure to all the citizens of India, soda! economic and political justice.
On doing everything possible also, if the State Government finds it impossible to redraw the reservation arrangement, the elections may take place based on the existing reservation arrangement. We may fail inspite of the efforts, but let us not fail for want of efforts. No system can be said to be perfect for all time to come. In the process of improving the system, the imperfections are going to be lessened.
With these directions and observations, these petitions are disposed of. No order as to costs.