2010 Supreme(SC) 50

2010 (1) Supreme
SUPREME COURT OF INDIA
K.G. Balakrishnan, CJI., P. Sathasivam and J.M. Panchal, JJ.
Union of India, etc. — Appellant
versus
Rakes Kumar and Ors., etc — Respondents
Civil appeal nos. 484-491 of 2006
Decided on : 12-01-2010

IMPORTANT POINT
While the exercise of electoral franchise is an essential component of a liberal democracy, it is a well-settled principle in Indian law that such rights do not have the status of fundamental rights and are instead legal rights which are controlled through legislative means.

Headnote:The Panchayats (Extension to the Scheduled Areas) Act, 1996- Writ petitions filed By petitioners Challenging constitutional validity of second proviso to Section 4(g) of Act, 1996 whereby all the seats of Chairpersons of Panchayats at all three tiers in Scheduled Areas are to be reserved in favour of Scheduled Tribes-Case of petitioners that since every eligible individual has a right to vote and the right to contest elections for the seats and Chairperson positions in Panchayats, the cent per cent reservation of Chairperson positions in favour of STs would curtail the rights of candidates other than those belonging to the ST category- High Court held that second proviso to Section 4(g) of Act, 1996 reserving all the seats of Chairpersons of Panchayats in favour of Scheduled Tribes was Unconstitutional-Appeal-Held High Court of Jharkhand erred in striking down Sections 21(B), 40(B) and 55(B) of the Jharkhand Panchayat Raj Act which give effect to the second proviso of Section 4(g) of Act, 1996-This is because in Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible- Article 243-M(4)(b) expressly empowers Parliament to provide for exceptions and modifications in the application of Part IX to Scheduled Areas- The provisos to Section 4(g) of the PESA contemplate certain exceptions to the norm of proportionate representation and same exceptional treatment was incorporated in the impugned provisions of the JPRA- Appeals filed by Union of India allowed and the proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and 55(B) of Jharkhand Panchayat Reservation Act, 2001 held to be constitutionally valid. (Para-23, 44) Equal protection before the law-Guarantee of -It is a well-accepted premise in Indian legal system that ideas such as substantive equality and distributive justice are at the heart of our understanding of the guarantee of equal protection before the law-The State can treat unequals differently with the objective of creating a level-playing field in the social, economic and political spheres- The question is whether ‘Reasonable Classification’ has been made on the basis of intelligible differentia and whether the same criteria bears a direct nexus with a legitimate governmental objective- When examining the validity of affirmative action measures, the enquiry should be governed by standard of proportionality rather than the standard of strict scrutiny - Of course, these affirmative action measures should be periodically reviewed and various measures are modified or adapted from time to time in keeping with the changing social and economic conditions- Reservation of seats in Panchayats is one such affirmative action measure enabled by Part IX of Constitution(para28) The Panchayats (Extension to the Scheduled Areas) Act, 1996- Proportionate representation-Writ petitions filed by petitioners challenging constitutional validity of second proviso to Section 4(g) of Act, 1996 whereby all the seats of Chairpersons of Panchayats at all three tiers in Scheduled Areas are to be reserved in favour of Scheduled Tribes-Case of petitioners that since every eligible individual has a right to vote and the right to contest elections for the seats and Chairperson positions in panchayats, the cent per cent reservation of Chairperson positions in favour of STs would curtail the rights of candidates other than those belonging to the ST Category- High Court held that second proviso to Section 4(g) of Act, 1996 reserving all the seats of Chairpersons of Panchayats in favour of Scheduled Tribes was Unconstitutional-Appeal-There is of course a rational basis for departing from the norms of `adequate representation’ as well as `proportionate representation’ in instant case-This was necessary because it was found that even in the areas where Scheduled Tribes are in a relative majority, they are under-represented in the government machinery and hence vulnerable to exploitation-Even in areas where persons belonging to Scheduled Tribes held public positions, it is a distinct possibility that the non-tribal population will come to dominate the affairs-The relatively weaker position of the Scheduled Tribes is also manifested through problems such as land-grabbing by non-tribals, displacement on account of private as well as governmental developmental activities and the destruction of environmental resources- In order to tackle such social realities, the legislature thought it fit to depart from the norm of `proportional representation’ (Para 37)

       2000 (2) MPHT 193, relied upon

        Reservations in Scheduled area panchayats –Validity of –Writ Petition filed by Petitioners contending that reservations amounting to 80% of the seats in Scheduled area panchayats would have the effect of limiting the choices available to voters and effectively discourage persons belonging to the general category from contesting these elections- While the exercise of electoral franchise is an essential component of a liberal democracy, it is a well-settled principle in Indian law that such rights do not have the status of fundamental rights and are instead legal rights which are controlled through legislative means-Constitution empowers the Election Commission of India to prepare electoral rolls for the purpose of identifying the eligible voters in elections for the Lok Sabha and the Vidhan Sabhas.- Furthermore, Representation of People Act, 1951 gives effect to the Constitutional guidance on the eligibility of persons to contest these elections- This includes grounds that render persons ineligible from contesting elections such as that of a person not being a citizen of India, a person being of unsound mind, insolvency and the holding of an ‘office of profit’ under the executive among others- It will suffice to say that there is no inherent right to contest elections since there are explicit legislative controls over the same. (Para 39)

       (AIR 1952 SC 64), referred

        Reservations in Panchayats- Validity-In the context of reservations in Panchayats, it can be reasoned that the limitation placed on the choices available to voters is an incidental consequence of the reservation policy. In this case, the compelling state interest in safeguarding the interests of weaker sections by ensuring their representation in local self-government clearly outweighs competing interest in not curtailing the choices available to voters- 50% reservations in favour of STs as contemplated by the first proviso to Section 4(g) of the PESA were not struck down in the impugned judgment- Even though it was argued before this Court that this provision makes a departure from the norm of ‘proportionate representation’ contemplated by Art. 243-D (1), however Art. 243-M(4)(b) permits ‘exceptions and modifications’ in the application of Part IX to Scheduled Areas- Sections 17(B)(1), 36(B)(1) and 51(B)(1) of the JPRA merely give effect to exceptional treatment that is mandated by the PESA- However, in addition to the 50% reservations in favour of Scheduled Tribes, the State of Jharkhand is also under an obligation to account for the interests of Scheduled Castes and Other Backward Classes-The same has been contemplated in Sections 17(B)(2), 36(B)(2) and 51(B)(2) of the JPRA which incorporate the standard of ‘proportionate representation’ for Scheduled Castes and Backward Classes in such a manner that the total reservations do not exceed 80%. -This does not mean that reservations will reach the 80% ceiling in all the Scheduled Areas-Since the allocation of seats in favour of Scheduled Castes and Backward Classes has to follow the principle of proportionality, the extent of total reservations is likely to vary across the different territorial constituencies identified for the purpose of elections to the panchayats-Depending on the demographic profile of a particular constituency, it is possible that the total reservations could well fall short of the 80% upper ceiling- However, in Scheduled Areas where the extent of the population belonging to the Scheduled Castes and Backward Classes exceeds 30% of the total population, the upper ceiling of 80% will become operative- Irrespective of such permutations, the legislative intent behind impugned provisions of the JPRA is primarily that of safeguarding interests of persons belonging to the Scheduled Tribes category- Hence held that total reservations exceeding 50% of the seats in Panchayats located in Scheduled Areas are permissible on account of the exceptional treatment mandated under Article 243-M(4)(b)-Appeals allowed. (Paras 40 to 43)

       Facts of the Case :

        Writ petitions were filed By petitioners herein in the instant case Challenging constitutional validity of second proviso to Section 4(g) of Act, 1996 whereby all the seats of Chairpersons of Panchayats at all three tiers in Scheduled Areas are to be reserved in favour of Scheduled Tribes.Case of petitioners that since every eligible individual has a right to vote and the right to contest elections for the seats and Chairperson positions in panchayats, the cent per cent reservation of Chairperson positions in favour of STs would curtail the rights of candidates other than those belonging to the ST category. High Court held that second provisoto Section 4(g) of Act, 1996 reserving all the seats of Chairpersons of Panchayats in favour of Scheduled Tribes was Unconstitutional.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        High Court of Jharkhand erred in striking down Sections 21(B),40(B) and 55(B) of the Jharkhand Panchayat Raj Act which give effect to the second proviso of Section 4(g) of Act, 1996.This is because in Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible. Article 243-M(4)(b) expressly empowers Parliament to provide for ‘exceptions and modifications’ in the application of Part IX to Scheduled Areas.The provisos to Section 4(g) of the PESA contemplate certain exceptions to the norm of ‘proportionate representation’ and same exceptional treatment was incorporated in the impugned provisions of the JPRA. Appeals filed by Union of India were allowed and the proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and 55(B) of Jharkhand Panchayat Reservation Act, 2001 were held to be constitutionally valid.

       Result : Appeals allowed