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IN THE HIGH COURT OF KERALA
A Muhamed Mustaque, J.
Aboobacker Kanniyan – Petitioner
Versus
Kerala State Election Commission – Respondent
W.P.(C). No. 24044, 24048, 24064, 24082, 24127, 24147, 24156, 24181, 24202, 24253, 24235, 24340, 24440, 24503, 24582, 24694, 24726, 24798, 24893, 24906 of 2020
Decided On : 20-08-2020
Reservation - Local Body Elections - Article 243-D(4), Kerala Panchayat Raj Act, 1994, Kerala Municipality Act, 1994 - The court examined the legality of consecutive reservation for the office of Chairpersons and Presidents in local bodies. The court found that the consecutive reservation without following rotation violated Article 243-D(4) of the Constitution of India. The court emphasized the need to balance statutory provisions with constitutional directives and directed the Election Commission to recast the reservation of the offices of Presidents and Chairpersons, strictly complying with the constitutional directives under the third proviso to Article 243-D(4), following the principles of rotation.
Fact of the Case:
The writ petitions raised a question on the legality of consecutive reservation for the office of Chairpersons and Presidents in the local bodies in the forthcoming general election. The challenge was based on the violation of Article 243-D(4) read with Article 14 of the Constitution of India.
Finding of the Court:
The court found that the consecutive reservation without following rotation violated Article 243-D(4) of the Constitution of India. The court emphasized the need to balance statutory provisions with constitutional directives and directed the Election Commission to recast the reservation of the offices of Presidents and Chairpersons, strictly complying with the constitutional directives under the third proviso to Article 243-D(4), following the principles of rotation.
Issues: The issues involved the legality of consecutive reservation for the office of Chairpersons and Presidents in local bodies, the balance between statutory provisions and constitutional directives, and the compliance with the principles of rotation.
Ratio Decidendi: The court held that the consecutive reservation without following rotation violated Article 243-D(4) of the Constitution of India. The court emphasized the need to balance statutory provisions with constitutional directives and directed the Election Commission to recast the reservation of the offices of Presidents and Chairpersons, strictly complying with the constitutional directives under the third proviso to Article 243-D(4), following the principles of rotation.
Final Decision: The court allowed the writ petitions and directed the Election Commission to recast the reservation of the offices of Presidents and Chairpersons, strictly complying with the constitutional directives under the third proviso to Article 243-D(4), following the principles of rotation.
JUDGMENT :
A Muhamed Mustaque, J.
1. These writ petitions raise a question on the legality of the consecutive or successive reservation for the office of Chairpersons and Presidents in the local bodies in the forthcoming general election.
2. The State Election Commission issued a notification on 3/3/2020 reserving the post of Chairpersons and Presidents of local authorities for SC/ST and women. The general election to the local authorities was announced on 6/11/2020 and notified by the Election Commission on 12/11/2020. The election has to be completed in different phases. The declaration of election is scheduled on 16/12/2020. The challenge made in all these writ petitions is that consecutive or successive reservation of office of Chairperson of the local body without following rotation is violative of Article 243-D(4) read with Article 14 of the Constitution of India.
3. There is no dispute to the fact that the Election Commission was constrained to reserve the post of Chairpersons consecutively on account of implementation of the statutory provisions under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994. The implementation of the statutory provisions necessarily would result in a consecutive reservation for the reason that the statutory provisions contemplate combined reservation for SC/ST and women beyond 50%. However, in the Constitution, the reservation was contemplated for not less than 30%.
4. This Court in these writ petitions is called upon to carry out an exercise under the statutory provisions within the constitutional mandate of providing reservation of not less than one third to SC/ST and women. It is apposite to refer Article 243-D of the Constitution which reads thus:
(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.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in
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