S.J.MUKHOPADHAYA, J.

1. The controversy relating to reservation in the matter of education and service, which started since 1951, was ultimately set at rest in the end of 1992, by the Supreme Court in Indra Sawhney V/s. Union of India, AIR 1993 SC 477.Immediately thereafter, by the Constitutions (73rd Amendment) Act, 1992, a new principle of reservation has been laid down under Article 243D of Constitution of India, in the matter of Panchayat election. The Respondent-State of Bihar then came out with Bihar Panchayat Raj Act, 1993 (for short Panchayat Act, 1993). The aforesaid Constitutional Amendment and Panchayat Act, 1993 have now given rise to the new controversy relating to reservation in Panchayat election. By the aforesaid 73rd Amendment of Constitution, followed by Panchayat Act, 1993, a new Provision has been laid down, reserving seats in favour of Scheduled Castes, Scheduled Tribes and Backward class persons, in the matter of Panchayat election. As to whether such reservation of seats in the matter of Panchayat election is permissible or not, is the main issue in the present writ petitions.

2. The petitioners of C.W.J.C. 3351/94 have challenged a part of Article 243D of Constitution, to the extent clause (6) is concerned. They have also challenged Secs. 13, 15 and 36 of Panchayat Act, 1993. The validity of the total constitutional provisions of Article 243D is also under challenge in C.W.J.C. 10716/95. In the said writ petition, other provisions like Secs. 38, 63, 69 and 91 of Panchayat Act, 1993 are also under challenge, apart from other sections. In one of the writ petitions (C.W.J.C. 11414/94), apart from the aforesaid challenges, Schedule-I of Panchayat Act, 1993, has also been challenged. The said Schedule-I contains list of Backward class. A provision relating to formation of Gram Kutchery (Village Court) which has been included under Chapter-VI of Panchayat Act, 1993, is also under challenge in C.W.J.C. 6853/95. In the rest of the writ petitions, one or other aforesaid provisions are under challenge.

3. Before dealing the matter, it is to be taken into note that there is acute paucity of precedence of Supreme Court and High Courts, directly covering the issue, in question. However, from some of the decisions of the Supreme Court, relating to reservation, including the last decision in Indra Sawhney, AIR 1993 SC 477, and a decision of Full Bench of this Court in Janardan Paswan, AIR 1988 Patna 75, it appears that certain similar question have been dealt with therein.

4. Mr. Kanth, Senior Advocate led the argument on behalf of the petitioners, followed by other counsel for the petitioners. It is for the said reason, the main argument which was advanced by Mr. Kanth, reiterated by others, is being taken into account. Some additional argument, which has been advanced by one or other counsel, has also been taken into note.

5. According to the counsel for the petitioners, the provision of Article 243D is ultra vires, as the same suffers from the vice of unconstitutionality and infract Article 14. While giving the background relating to various Constitutional Amendments, it was contended that while the Supreme Court looked into the matter initially in Shankari Prasads case AIR 1951 SC 458 and decided the issue relating to Constitutional Amendment, the matter was finally set at rest in Keshvanda Bhartis case AIR 1973 SC 1461. According to Mr. Kanth, no amendment to any part of the Constitution is permissible, if it violates or disturb or alter the basic structure and basic feature of the Constitution.It was urged that democracy, democratic republic, political justice, equality of status, as well as, opportunity having been made part of preamble of Constitution of India, specifically, they being guided by Articles 14, 15, 40, 325 and 326, they are the basic structure of Indian Constitution. The counsel relied on the definition of basic structure as laid down by Supreme Court in Keshvananda Bhartis case AIR 1973