Supreme Court of India
UNION OF INDIA ETC.versusRAKESH KUMAR AND ORS., ETC.
- Citation
- 2010 INSC 32
- Decided
- 12 January 2010
- Disposal
- Appeal(s) allowed
- Bench
- K G BALAKRISHNAN
Holding
The reservation provisions for Scheduled Tribes in Panchayat chairperson posts and the aggregate reservation up to 80% in Scheduled Areas are constitutionally valid under Article 243‑M(4)(b) as permissible exceptions and modifications.
Summary
The Supreme Court considered writ petitions challenging the constitutional validity of the reservation provisions in the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) and the Jharkhand Panchayat Raj Act, 2001, which reserved 50% of seats for Scheduled Tribes (ST) and all chairperson posts for STs in Panchayats located in Scheduled Areas, and allowed total reservations up to 80% for SCs, STs and OBCs. The High Court had struck down these provisions as violative of Article 14, but the Union appealed. The Court held that Parliament’s power under Article 243‑M(4)(b) to make “exceptions and modifications” for Scheduled Areas makes the reservation scheme constitutionally valid, viewing it as compensatory discrimination aimed at protecting historically disadvantaged tribal communities. It further upheld the provision allowing reservations to exceed 50% (up to 80%) in Scheduled Areas, finding the classification reasonable and proportionate to the legitimate objective of safeguarding tribal interests. The Court rejected the argument that such reservations unreasonably restrict political participation of the general category, emphasizing that electoral franchise is a legal right subject to legislative regulation. Consequently, the appeals were allowed and the impugned provisions were restored.
Issues considered
- The constitutionality of the second proviso to s.4(g) of PESA reserving all chairperson positions for Scheduled Tribes in Scheduled Areas
- The validity of sections of the Jharkhand Panchayat Raj Act that reserve seats for Scheduled Tribes, Scheduled Castes and Other Backward Classes up to 80% of total seats
- Whether such reservations violate Article 14 of the Constitution
- Whether the reservation scheme exceeds the permissible ceiling of 50% under Article 243‑D and related provisions
Legislation cited
- Jharkhand Panchayat Raj Act, 2001s. s.17(8)(2), s. s.21(8), s. s.36(8)(2), s. s.40(8), s. s.51(8)(2), s. s.55(8)
- Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996s. s.4(g) second proviso
Subjects
reservationPanchayatsScheduled AreasArticle 14Article 243‑DArticle 243‑M(4)(b)compensatory discriminationaffirmative actionlocal self‑government
Judgment
[2010) 1 S.C.R. 483
UNION OF INDIA ETC. A
V.
RAKESH KUMAR AND ORS., ETC.
(Civil Appeal Nos. 484-491 of 2006)
JANUARY 12, 2010
B
[K.G. BALAKRISHNAN, CJI, P. SATHASIVAM AND J.M.
PANCHAL, JJ.]
Constitution of India, 1950:
c
Articles 14, 243-D and 243-M(4)(b) - Panchayats in
Scheduled Areas - Section 4(g) of the Provisions of the
Panchayats (Extension to the Scheduled Areas) Act, 1996
and ss. 17(8)(2), 21(8), 36(8)(2), 40(8), 51(8)(2) and 55(8)
of the Jharkhand Panchayat Raj Act,2001 providing for
0
reservation of 50% of total seats in Panchayats and
reservation of posts of Chairpersons at all level in Panchayats
in Scheduled Areas for Scheduled Tribes - HELD:
Constitutionally valid - Reservation of 50% seats in favour
of Scheduled Tribes in Scheduled Areas at all the three tiers
is clearly an example of 'compensatory discrimination' as E
these areas were completely under a separate administrative
scheme as per Fifth Schedule to the Constitution - The
provisions laying down that reservation not to exceed 80% of
total seats in Panchayats in case of reservation provided to
backward class proportionate to their population in Scheduled F
Areas if combined with seats reserved for Scheduled Tribes
and Scheduled Castes, are also constitutionally valid - Total
reservations exceeding 50% of seats in Panchayats in
Scheduled Areas are permissible on account of exceptional
treatment mandated under Article 243-M(4)(b) - This would G
not amount to unreasonable restriction on rights of political
participation of persons belonging to general category -
Besides, rights to exercise electoral franchise are legal rights,
subject to control through legislative means - Provisions of
483 H
484 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A the Panchayats (Extension to the Scheduled Areas) Act, 1996
- s.4(g) - Jharkhand Panchayat Raj Act,2001 - ss. 17(8)(2),
21(8), 36(8)(2), 40(8), 51(8)(2) and 55(8) - Committees -
Bhuria Committee Report - Social Justice - Election Law.
Writ petitions were filed before the High Court
8 challenging the constitutional validity of s.4(g) of the
Provisions of the Panchayats (Extension to the
Scheduled Areas) Act, 1996 and the provisions of the
.Jharkhand Panchayat Raj Act, 2001. The High Court
struck down the second proviso to s.4(g) of PESA and
C ss. 21(8), 40(8) and 55(8) of JPRA which provided for
reservation for Scheduled Tribes, of posts of
Chairpersons at all levels in Panchayats in Scheduled
Areas. It also struck down ss.17(8)(2), 36(8)(2) and
51(8)(2) of JPRA, which provided for reservation upto the
D extent 80% of seats in Panchayats in Scheduled Areas
for Scheduled Tribes, Scheduled Castes and backward
class, combined together. Aggrieved, the Union of India
and others filed the appeals.
Allowing the appeals, the Court
E
HELD: 1.1. The second proviso to s.4(g) of the
Provisions of the Panchayats (Extension to the
Scheduled Areas) Act, 1996, and ss. 21(8), 40(8) and
55(8) of the Jharkhand Panchayat Raj Act, 2001 are
F constitutionally valid. In Panchayats located in Scheduled
Areas, the exclusive representation of Scheduled Tribes
in the Chairperson positions of the same bodies is
constitutionally permissible. This is so beeause Article
243-M(4)(b) of the Constitution of India expressly
G empowers Parliament to provide for 'exceptions and
modifications' in the application of Part IX of the
Constitution to Scheduled Areas. The provisos to s. 4(g)
of the PESA contemplate certain exceptions to the norm
of 'proportionate representation' and the same
H exceptional treatment was incorporated in the impugned
UNION OF INDIA ETC. v, RAKESH KUMAR AND 485
ORS., ETC.
provisions of the JPRA. [Para 23 and 44] [531-E; 510-8- A
D]
Janardhan Paswan v. State of Bihar, AIR 1988 Pat 75,
distinguished.
1.2. The Panchayati Raj system in Scheduled Areas 8
is a fit case that warrants exceptional treatment with
regard to reservation. The principles of reservation which
are applicable for public employment and for admission
to educational institutions cannot be readily applied in
respect of the reservation policy made by the legislature C
to protect the interests of the Scheduled Tribes by
assuring them of majority reservation as well as the
occupancy of Chairperson positions in Panchayats
located in Scheduled Areas. This policy broadly
corresponds with the past practice wherein the o
Scheduled Areas were administered as per the provisions
of the Fifth Schedule to the Constitution and the same
was expected to adhere to the advice of the Tribes
Advisory Councils, which were predominantly controlled
by Scheduled Tribes. By extending the Panchayati Raj E
system to these areas, Scheduled Tribes should not be
put in a relatively disadvantageous position. In the
Panchayati Raj system contemplated by Part IX of the
Constitution, the Scheduled Tribes should have an
effective say in the administration. That is why the Bhuria
F
Committee recommended that all Chairperson positions
should be reserved in favour of Scheduled Tribes. The
Parliament has conferred such special reservation on
account of the pivotal role of the Chairperson in a
Panchayat. [Para 15, 18 and 34] [510-D-E; 511-G-H; 512- G
A-8; 523-F]
Vinayakrao Gangaramji Deshmukh v. P.C. Agrawal &
Ors., AIR 1999 Born 142;- and Indra Sawhney v. Union of
India, 1992 (2) Suppl. SCR 454 = (1992) Suppl. (3) SCC 217,
referred to. H
486 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A 2.1. Sections 17(8)(2), 36(8)(2) and 55(8)(2) of the
Jharkhand Panchayat Reservation Act, 2001 are also
constitutionally valid provisions. The legislative intent
behind the provisions of the JPRA is primarily that of
safeguarding the interests of persons belonging to the
B Scheduled Tribes category. Therefore, 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)
of thE~ Constitution. (Para 42 and 44] [530-H; 531-A-8-E]
c MR. Balaji v. State of Mysore, 1963 Suppl. SCR 439 =
AIR 1!)63 SC 649 and Indra Sawhneyv. Union of India (1992)
Supp 3 SCC 217; Krishna Kumar Mishra v. State of Bihar,
AIR 1996 Pat. 112, referred to.
D 2.2. Under Article 243-D of the Constitution, there is
a clear mandate for the State Legislature to reserve seats
for SCs and STs 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
E by direct election in that Panchayat as the population of
the SCs or the STs in that Panchayat area bears to the
total pc,pulation of the area under consideration. In view
of Article 243-0(6), a State Legislature can make provision
for reservation of seats in any Panchayat or offices of
F ChairpE!rsons in the Panchayats at any level in favour of
backward class of citizens. Under the PESA, 50% of the
seats in Gram Panchayats, Panchayat Samitis and Zilla
Parishads should be reserved in favour of Schedule
Tribes and the ceiling is fixed to the extent that this
reservation put together shall not exceed 80% of the total
G seats. It may be noticed that this reservation policy is
exclusively applicable to Scheduled Areas which had
hitherto been the subject of a separate administrative
scheme under the Fifth Schedule of the Constitution.
[Para 27] [518-E-H; 519-A-8]
H
UNION OF INDIA ETC. v.. RAKESH KUMAR AND 487
ORS., ETC.
2.3. It is a well-accepted premise in our legal system A
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 B
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. While
examining the validity of affirmative action measures, the c
enquiry should be governed by the 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. D
social and economic conditions. Reservation of seats in
Panchayats is one such affirmative action measure
enabled by Part IX of the Constitution. (Para 28) (519-C-
E]
2.4. The principle of 'one-man, one-vote' cannot be E
applied in an absolute sense in the context of Panchayat
elections in Scheduled Areas. However, it is the
responsibility of the executive to identify territorial
constituencies which have a certain degree of parity in
their population levels. It is of course important to re-draw F
these constituencies from time to time, in keeping with
the demographic shifts in the area concerned. [Para 20)
[513-D-F]
2.5. Reservation of 50% seats in favour of the STs in
Panchayats at all the three tiers is clearly an example of G
'compensatory discrimination' especially in view of the
fact that the scheduled areas under consideration were
completely under a separate admini~trative scheme as
per the Fifth Schedule to the Constitution. There is of
course a rational basis for departing from the norms of H
488 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A 'adequate representation' as well as 'proportionate
representation' in the case of Scheduled Tribes. 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
B hence vulnerable to exploitation. [Para 31and 37 ] (521-
G-H; 525-E]
Ashok Kumar Tripathi v. Union of India 2000 (2) MPHT
193, approved.
c 2.6. Article 243-D is a distinct and independent
constitutional basis for reservation in Panchayat Raj
Institutions. This reservation cannot be readily compared
•
to the affirmative action measures enabled by Articles
15(4) and 16(4) of the Constitution; especially analogy
0 between Article 16(4) and Article 243-D is unviable. [Para
32) [522-B-D)
Vinayakrao Gangaramji Deshmukh v. P.C. Agrawal &
Ors., AIR 1999 Born 142, approved.
E 3.1. The reservation policy in question is applicable
only to Scheduled Areas which were hitherto covered by
the Fifth Schedule to the Constitution, and merit such
exceptional treatment. The Scheduled Areas under
consideration are restricted only to certain Districts in the
F State of Jharkhand. In some Districts where STs are not
predominantly in occupation, only certain blocks have
been notified as Scheduled Areas by themselves. On
account of migration of non-tribal people in some areas,
there may be a relatively lesser proportion of tribal
population but historically these areas were occupied
G almost exclusively by Tribal people. It is quite clear that
the exceptional treatment for Scheduled Tribes will be
confined to the blocks that have been notified as
Scheduled Areas. This means that in the Districts where
only some of the blocks have been notified as Scheduled
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 489
ORS., ETC.
Areas, the provisions of the JPRA will be applicable at the A
level of Panchayat Samitis within the notified area but not
at the level of the Zilla Parishad for the whole district.
[Para 19 and 21) [512-D-G; 513-G-H; 514-A)
Ashok Kumar Tripathi v. Union of India 2000 (2) MPHT
8
193; and R.C Poudyal v. Union of India_ 1993 (1) SCR 891 =
(1994) Supp. 1 SCC 324, referred to.
3.2. The identificatioi:i of Scheduled Areas is an
executive function and courts do not possess the
expertise needed to scrutinize the empirical basis of the C
same. The data submitted before the Court indicates that
while the Scheduled Tribes are indeed in a majority in
some Scheduled Areas, the same is not true for some
other Scheduled Areas. This disparity is understandable
keeping in mind that there has been a considerable influx o
of non-tribal population in some of the Scheduled Areas.
In this regard, the Bhuria Committee's recommendation
must be emphasized which says that persons belonging
to the Scheduled Tribes should occupy at least half of the
seats in Panchayats located in Scheduled Areas, E
irrespective of whether the ST population was in a relative
minority in the concerned area. This recommendation is
in line with the larger objective of safeguarding the
interests of Scheduled Tribes. [Para 38) [528-D-G)
4.1. As regards the plea that reservation of 80% of the F
seats in Panchayats in Scheduled Areas amounts to an
unreasonable limitation on the rights of political
participation of persons belonging to the general
category, it is significant to note that the rights of political
participation broadly include the right of a citizen to vote G
for a candidate of his/her choice and right of citizens to
contest elections for a public office. 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 H
490 SUPREME COURT REPORTS [2010] 1 S.C.R.
A rights and are instead legal rights which are controlled
through legislative means 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) [529-
8-F]
B N.P. Ponnuswami vs. Returning Officer Namakkal
Constituency Namakkal Salem Dist. 1952 SCR
218= 1952 AIR 64, referred to.
4.2. In the context of reservations in Panchayats, the
c limitation placed on the choices available to voters is an
incid~ntal 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
0 the competing interest in not curtailing the choices
available to voters. [Para 40) [529-G-H; 530-A]
Case Law Reference:
AIR 1988 Pat 75 referred to Para 13
E 1912 (2) Suppl. SCR 454 referred to Para 17
(1st3)1 SCC 439 referred to Para 17
1993 ( 1 ) SCR 891 referred to Para 20
F 2000 (2) MPHT 193 relied on Para 22
AIR 1996 Pat. 112 referred to Para 24
AIR 1999 Bom 142 referred to Para 32
2000 (2) MPHT 193 approved Para 37
G
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
484-491 of 2006.
From the Judgment & Order dated 02.09.2005 of the High
H Court of Jharkhand in W.P. (PIL) No. 2728 of 2002, W.P. (PIL)
UNION OF INDIA ETC. v. RAKESH KUMAR AND 491
ORS., ETC.
No. 3877/2002, W.P. (PIL) No. 747/2001, W.P. (PIL) No. 1585 A
of 2002, W.P. (PIL) No. 849 of 2002, CWJC No. 3591/1997
(R), CWJC No. 2148 of 2001, W.P. (C) No. 2097 of 2002.
WITH
C.A.Nos.209,210-211,212,213,214,215,216,217,of2010 B
Gopal Subramanium, ASG, Dr. Rajeev Dhawan (N.P.),
P.S. Mishra, (N.P.), S.S. Upadhyay (N.P.), M.N. Krishnamani
(N.P.), Nagendra Rai, (N.P.), Tapesh Kr. Singh, Balaji (for 8.
Krishna Prasad), Amlan Kumar Ghosh, Prashant Bhushan, c
Bhupender Yadav, Vikramjit Banerjee, R.C. Kohli, Saket Singh,
Niranjana Singh, Vikram, Braj Kishore Mishra, Ujjwal K.Jha,
Arup Banerjee, Kshatrashal Raj, Braj K. Mishra, T.T.K. Deepak
& Co., (NP), Nikhil Nayyar, T.V.S. Raghavendra Sreyas,
Sumeet Gagodra, Amboj Agrawal, Dr. M.P. Raju, Mary Scaria, D
P. George Giri, Y. Kalivi Zhimomi, Ashwani Bhardwaj, Santosh
Mishra, Rajesh Ranjan Dubey, Dhruv Kumar Jha, Jayesh
Gaurav, Shiv Mangal Sharma, Upendra Mishra, Pawan
Upadhyay, Sharmila Upadhyaya, Chinmoy Khaladkar,
Shailendra Narayan Singh, Neelam Kalsi, Vimal Chandra S.
Dave, Sanjay R. Hegde, Anil Kr. Mishra, A. Rohen Singh, Amit E
Kr. Chawla, Vikrant Yadav, R. Venkataraman, Manish Kumar
Saran, Nirmal Kumar Ambastha, Delip Jerath, Ruchira Gupta,
Bhawesh Kumar, (for Ashok Mathur), Kumud Lata Das, D.N.
Goburdhan, (NP), Ajit Kumar Sinha, (NP), for the appearing
parties. F
\
The Judgment of the Court was delivered by
K.G. BALAKRISHNAN, CJI. 1. Leave granted.
2. For a considerable period during the British Rule, G
special laws were made applicable to certain 'backward areas'
in India that were predominantly occupied by tribal people.
These backward regions covered an area of more than
1,20,000 square miles. However, the characteristics of these
H
492 SUPREME COURT REPORTS [2010] 1 S.C.R.
A areas and their populations varied widely. By Act XIV of 1874,
Santhal Parganas and Chutia Nagpur Division (now known as
Chhotanagpur Division) were created and in these 'Scheduled
districts', tribal communities were accorded a certain degree
of autonomy to regulate their affairs on the basis of their own
B conventions and traditions. Many of these communities chose
their leaders through an informal consensus among other
customary methods for selection. When the Constitution was
enacted, these areas were designated as 'Scheduled Areas'.
Article 244 of the Constitution explicitly states that the provisions
c of the Fifth Schedule shall apply in respect of the administration
and control of the Scheduled Areas in any State othe; than the
States of Assam, Meghalaya, Tripura and Mizoram. The
provi!Sions of the Sixth Schedule guide the administration of
tribal areas in those states.
D 3. Paragraph (4) of the Fifth Schedule states that there
shall be in each State having a "Schedule Area", a 'Tribes
Advisory Council' consisting of not more than twenty members
of whom, as nearly as may be, three-fourths shall be the
representatives of the Scheduled Tribes in the Legislative
E Assembly of the State. It was the duty of the 'Tribes Advisory
Council' to advise on matters pertaining to the welfare and
advancement of the Scheduled Tribes in the State. Paragraph
(5) of the Fifth Schedule states that the Governor of the State
may by public notification direct that any particular Act of
F Parliament or the LegislatL:re of the State shall not apply to a
Scheduled Area or would apply subject to such exceptions and
modifications as he may specify. The Governor of the State may
also make regulations for the peace and good government of
any area in a State which is for the time being a Scheduled
G Area. The Governor of the State has also been given the power
to repeal or amend any existing Act of Parliament or of the
Legislature of the State which is for the time being applicable
to the area in question.
4. Hence, it is evident that the framers' intent bel1ind
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 493
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
including the Fifth Schedule was that of a separate A
administrative scheme for Scheduled Areas in order to address
the special needs of tribal communities. During the debates on
the floor of the Constituent Assembly, some members had
criticized such differential treatment for Scheduled Tribes. In
response to such criticisms, Shri K.M. Munshi had said that B
'Adivasis' or tribes were many in number belonging to different
"ethnic, religious and social groups" and he explained the object
of the Drafting Committee's proposals in the following words:
"We want that the Scheduled Tribes in the whole country C
should be protected from the destructive impact of races
possessing a higher and more aggressive culture and
should be encouraged to develop their own autonomous
life; at the same time we want them to take a larger part
in the life of the country adopted. They should not be
isolated communities or little republics to be perpetuated D
for ever..... object is to maintain them as little unconnected
communities which might develop into different groups
from the rest of the country ..... and that these tribes should
be absorbed in the national life of the country."
E
5. In exercise of the powers conferred by paragraph 6(i)
of the Fifth Schedule to the Constitution of India, the President
of India made an Order known as The Scheduled Area (Part
A States) Order, 1950. With respect to the then combined
State of Bihar, this Order was applied to Ranchi district, F
Singhbhum district (excluding Dalbhum sub-division) and
Santhal Pargana district. The following table shows the
chronology of the governmental measures which have identified
Scheduled Areas in the territories that lie in the present-day
State of Jharkhand:
G
H
494 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A 874 Scheduled Districts Act, Declared the Santhal
1874 (Act XIV of 1874) Parganas and the Chutia
passed during the colonia NagpurDivision (now
period known as 'Chhotanagpur
Division') as 'scheduled
B districts' in the erstwhile
province of Bengal. These
areas now come within
the territory of the State of
Jharkhand.
C 950 After independence, The In pursuance of this Order,
President of India had Ranchi district,
made an order known as Singhbhum district
The Scheduled Area (Part (excluding Dalbhum
A States) Order, sub- Santhal P a r g a n a
D division), 1950 in exercise district (excluding Godda
of the powers conferred by· and Deoghar sub-
Paragraph 6(ii) of the Fifth divisions) and Latehar
Schedule to the sub-division of Palamau
Constitution of India. district were declared to
E be Scheduled areas.
977 The 1950 Order was By the said Order, Ranchi
rescinded and replaced by district, Singhbhum
the Scheduled Areas district, Latehar sub-
(States of Bihar, Gujarat, division and Bhandaria
F Madhya Pradesh and block of Garhwa sub-
Orissa) Order, 1977 division in Palamau
district, Dumka; Pakur;
Rajmahal and Jamatra
sub-divisions and
Sundarpahari and
G
Boarijor blocks of Godda
sub-divisions in Santhal
Pargana district were
shown as scheduled areas
of the then combined
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 495
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
State of Bihar, all of A
which now fall within the
territory of Jharkhand.
2003 Subsequent to the Under the 2003 order,
formation of the States of the following areas in the B
Jharkhand and State of Jharkhand have
Chhattisgarh, The been declared as
Scheduled Areas (States Scheduled Areas:
of Chhattisgarh,
1. Burhmu, Mandar,
Jharkhand and Madhya
Pradesh) Order, 2003
Chan ho, Bero, c
Lapung, Namkom,
was passed to replace the Kanke, Ormanjhi,
1977 order Angara, Silli,
Sonahatu, Tamar,
Bundu, Arki, Khunti, D
Murhu, Karra, Torpa
and Raniya blocks in
Ranchi District.
2. Kisko, Kuru,
Lohardaga, Bhadra
E
and Senha blocks in
Lohardaga district
3. Bishanpur, Ghaghra,
Chainpur, Dumri,
Raic.iih, Gumla, Sisai,
Kagdara, Basiya and F
Palkot blocks in Gumla
District
4. Simdega, Kolebira,
I
Ba no, Jaldega,
Thethetangar, Kurdeng G
and Bolba blocks
within Simdega
District.
5. Barwadih, Manika,
H
496 SUPREME COURT REPORTS [2010] 1 S.C.R
A Balumath, Chandwa,
Latehar, Garu and
Mahuadaran blocks
within Latehar District
6. Bhandariya block within
B Garhwa District
7. Bandgaon,
Chakradharpur,
Sonuwa, Goyalkera,
Mahoharpur,
c Noamundi,
Jagannathpur,
Manghgaon,
Kumardungi, Manjhari,
Tatnagar, Jhinkpani,
D Tonto, Khutpani and
Chaibasa blocks within
the West Singhbum
District
8. Govindpur (Rajnagar),
Adityapur (Ghamariya),
E Seraikela, Kharsaan,
Kuchai, Chand ii,
lchagarh and Nimdih
blocks within Seraikella
Kharsawan District
F 9.Golmuri-Jugslia,
Patmada, Petka,
Dumariya, Musabani,
Ghatsila,
Dhalbhumgarh,
G Chakuliya and
Bahragora blocks within
East Singhbhum District
10.Sariyahat, Jarmundi,
Jama, Ramagarh,
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 497
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
A
Gopikandar,
Kathikund, Dumka,
Sikripara,
Raneshwar and
Masaliya blocks
B
within Dumka
District.
11. Kundhit, Nala,
Jamtara and
Narayanpur blocks
within Jamtara c
District
12. Sahebganj, Boriyo,
Taljhari, Rajmahal,
Barharwa, Pathna
and Barhet blocks D
within Sahebganj
District.
13. Littipara, Amrapara,
Hiranpur, Pakur,
Maheshpur and E
Pakuriya blocks
within Pakur District
14. Borijore and
. Sundarpahari blocks
within Godda District. F
2007 Subsequent to the
impugned judgment of the
Jharkhand High Court, the
Government of Jharkhand
G
passed the Scheduled
Areas (State of
Jharkhand) Order, 2007
and the same is presently
in force.
H
498 SUPREME COURT REPORTS [2010] 1 S.C.R.
A Hence, Tribes Advisory Councils had been constituted for these
Scheduled areas since the Panchayati Raj System had not
been extended to them.
6. By way of the Constitution (Seventy-Third Amendment)
B Act, 1992, Part IX was inserted in the Constitution of India.
Article 243B of Part IX of the Constitution mandated that there
shall be Panchayats at the village, intermediate and district
levels in accordance with the provisions of this Part. Article 243-
C provides that the Legislature of a State may, by law, make
C provisions with respect to the composition of Panchayats.
Detailed provisions were made under Article 243-D enabling
the reservation of seats for Scheduled Castes, Scheduled
Tribes, women and other backward classes. Article 243-M
stated that nothing in this Part shall apply to the Scheduled
Amas referred to in clause (1 ), and the tribal areas referred to
D in clause (2), of article 244.
7. Two years after the ?3rd Amendment Act, the Union
Government had appointed a Committee of Members of
Parliament (MPs) and experts under the Chairmanship of Sh.
E Dilip Singh Bhuria to undertake a detailed study and make
recommendations about whether the Panchayati raj system
should be extended to the Schedules Areas, as contemplated
by Article 243-M(4)(b) of the Constitution. The Committee
submitted its report on 17.1.1995 and favoured democratic
F decentralization in scheduled areas. It will be instructive to refer
to the following observations in the Bhuria Committee Report
(at Para. 10):-
'Tribal life and economy, in the not too distant past, bore
a harmonious relationship with nature and its endowment.
G It was an example of sustainable development. But with the
influx of outside population, it suffered grievous blows. The
colonial system was established on the basis of
expropriation of the natural and economic resources of
tribal and other areas in the country. Although, theoretically,
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 499
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
there has been difference in the approach after the A
departure of the colonial masters from Tribal areas, in
practice, the principles enunciated in Article 39 and other
Directive Principles of State Policy have to be followed
more rigorously. On account of their simplicity arid
ignorance, over the decades the tribals have been B
dispossessed of their natural and economic resources like
land, forest, water, air, etc .. The dispossession has not
been confined to that through private parties. For the
purpose of promotion of general economic development
projects, the State also has been depriving them of the c
basis means of livelihood. These processes have been
operative since a long time causing human misery and
socio-economic damage. No reliable picture is yet
available, for instance, we are not seized on the total
quantum of land alienated from the tribals both on private
0
and State account nor the number of families, clans or
Tribes involved. This has compelled some to perceive
development as an agent of destruction. But since planned
development has been an article of faith with us, it has to
be ensured that implementation of the policies and
programmes drawn up in tribal interest are implemented E
in tribal interest. Since, by and large, the politico-
bureaucratic apparatus has failed in its endeavor, powers
should be developed on the people so that they can
formulate programmed which suit them and implement
them for their own benefits." F
It was further observed, at Para. 30:
"The group was further of the view that notwithstanding the
fact that the areas under consideration i.e. Scheduled G
Areas are expected to have majority of tribal population, it
is necessary to stipulate that the Panchayats therein will
have a majority of Scheduled Tribes members. The
reason is that the Scheduled Areas were notified as such
on account of majority of Scheduled Tribe population, H
500 SUPREME COURT REPORTS [2010] 1 S.C.R.
A contiguity etc. In course of time, on account of influx of
non-ST population, in a few Scheduled Areas, the status
of the ST population might have been reduced to a
minority. That should not be regarded as having altered
the overall character of the Scheduled Areas. The
B chairmen and vice-chairmen should belong to the
Scheduled Tribes. One-third of the seats should be
reserved for women."
(Emphasis supplied)
C 8. Evidently, the Committee made three specific
recommendations, namely, (a) Panchayats in scheduled areas
must have a majority of scheduled tribes members, (b)
Chairmen and Vice-Chairmen should belong to scheduled
tribes, and (c) one-third of the seats should be reserved for
D women. The Committee felt that certain provisions in Part IX
which pertained to Panchayati Raj Institutions (PRls) were
wholesome and should be incorporated in the law to be passed
by the Parliament under Article 243-M(4)(b) with due regard for
the unique characteristics of tribal societies residing in the
E Scheduled Areas. It was considered especially important to
protE~ct the interests of many tribal societies which have their
own customary laws, traditional practices and community ethos.
The Committee was also of the view that since the Scheduled
Areas and Tribal Areas are expected to have a majority of tribal
F population, the Panchayats at different tiers should have a
majority of members who belong to the Scheduled Tribes
(Hereinafter 'STs'). Furthermore, it was suggested that both the
chairman and vice-chairman should belong to this category as
well. The Committee also made recommendations in respect
G of the various functions to be discharged by the Gram Sabhas
in Tribal areas. They pertained to safeguards for the rights of
the tribal communities in matters relating to land, water, forest
and minor forest produce; enforcement of customary rights such
as grazing, fuel, fodder, minor forest produce, building
H materials; mobilization for community welfare programmes and
UNION OF INDIA ETC. v. RAKESH KUMAR AND 501
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
organising voluntary labour for community works; promotion of A
solidarity and harmony among all sections of people;
consideration of the report on the audit of accounts of the Gram
Panchayat; women and child development; identification of the
beneficiaries for poverty alleviation and other programmes and
host of other welfare measures such as drinking water supply, B
sanitation, conservancy and drainage; public health measures;
village roads and streets; small tanks; maintenance of public
properties and community assets. The Committee gave
detailed suggestions with regard to the powers, functions and
procedures of the Panchayati Raj Institutions. c
9. Based on these recommendations, The Panchayats
(Extension to the Scheduled Areas) Act, 1996 [hereinafter
'PESA'] was passed by the Parliament in 1996. The statement
of Objects and Reasons of the PESA Act reads as follows:
D
"There have been persistent demands from prominent
leaders of the Scheduled Areas for extending the
provisions of Part IX of the Constitution to these Areas so
that Panchayat Raj Institutions may be established there.
Accordingly, it is proposed to introduce a Bill to provide E
for the extension of the provisions of Part IX of the
Constitution to the Schedule Areas with certain
modifications providing that, among other things, the State
Legislations that may be made shall be· in consonance
with the customary law, social and religious practices and F
traditional management practices of community resources;
.... The offices of the Chairpersons in the Panchayats at
all levels shall be reserved for the Scheduled Tribes; the
reservations of seats at every Panchayat for the Scheduled
Tribes shall not be less than one-third of the total number G
of seats."
10. The provision of the PESA Act which merits
consideration in the present case is Section 4 which reads as
follows:-
H
502 SUPREME COURT REPORTS [2010) 1 S.C.R.
A 4. f-..Jotwithstanding anything contained under Part IX
of the Constitution, the Legislature of a State shall
not make any law under that Part which is
inconsistent with any of the following features,
namely:-
B
(a) a State legislation on the Panchayats that
may be made shall be in consonance with the
customary law, social and religious practices
and traditional management practices of
community resources;
c
(b) a village shall ordinarily consist of a
habitation or a group of habitations or a
hamlet or a group of hamlets comprising a
community and managing its affairs in
D accordance with traditions and customs;
(c) every village shall have a Gram Sabha
consisting of persons whose names are
included in the electoral rolls for the
Panchayat at the village level;
E
Declared the Santhal Parganas and the
Chutia Nagpur Division (now known as
'Chhotanagpur Division') as 'scheduled
districts' in the erstwhile province of Bengal.
F These areas now come within the territory of
the State of Jharkhand.
(d) every Gram Sabha shall be competent to
safeguard and preserve the traditions and
G customs of the people, their cultural identity,
community resources and the customary
mode of dispute resolution;
(e) every Gram Sabha shall -
H (i) approve the plans, programmes and projects
UNION OF INDIA ETC. v. RAKESH KUMAR AND 503
ORS., ETC. [K.G BALAKRISHNAN, CJI.]
for social and economic development before A
such plans, programmes and projects are
taken up for implementation by the
Panchayat at the village level;
(ii) be responsible for the identification or
8
selection of persons as beneficiaries under
the poverty alleviation and other
programmes;
(f) every Panchayat at the village level shall be
required to obtain from the Gram Sabha a C
certification of utilization of funds by that
Panchayat for the plans, programmes and
projects referred to in clause (e);
(g) the reservation of seats in the Scheduled
0
Areas at every Panchayat shall be in
proportion to the population of the
communities in that Panchayat for whom
reservation is sought to be given under Patt
IX of the Constitution;
E
Provided that the reservation for the
Scheduled Tribes shall not be less than one-
half of the total number of seats:
Provided further that all seats of F
Chairpersons of Panchayats at all levels shall
be reserved for the Scheduled Tribes;
(h) the State Government may nominate persons
belonging to such Schedule Tribes as have
no representation in the Panchayat at the G
intermediate level or the Panchayat at the
district level:
Provided that such nomination shall not
exceed one-tenth of tile total members to be H
504 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A elected in that Panchayat;
(i) the Gram Sabha or the Panchayats at the
appropriate level shall be consulted before
making the acquisition of land in the
Scheduled Areas for development projects
B and before re-settling or rehabilitating
persons affected by such projects in the
Scheduled Areas; the actual planning and
implementation of the projects in the
Scheduled Areas shall be coordinated at the
c State level;
0) planning and management of minor water
bodies in the Scheduled Areas shall be
entrusted to Panchayats at the appropriate
D level;
(k) the recommendations of the Gram Sabha or
the Panchayats at the appropriate level shall
be made mandatory prior to grant of
prospecting licence or mining lease for minor
E minerals in the Scheduled Areas:
'.-:r (I) the prior recommendation of the Gram
Sabha or the Panchayats at the appropriate
level shall be made mandatory for grant of
F concession for the exploitation of minor
minerals by auction;
(m) while endowing Panchayats in the Scheduled
Areas with such powers and authority as may
<I
be necessary to enable them to function as
G
institutions of self-government, a State
Legislature shall ensure that the Panchayats
at the appropriate level and the Gram Sabha
are endowed specifically with -
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 505
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
(i) the power to enforce prohibition or to A
regulate or restrict the sale and consumption
of any intoxicant;
(ii) the ownership of minor forest produce;
(iii) the power to prevent alienation of land in B
the Scheduled Areas and to take appropriate
action to restore any unlawfully alienated
land of a Scheduled Tribe;
(iv) the power to manage village markets by c
whatever name called;
(v) the power to exercise control over money
lending to the Scheduled Tribes;
(vi) the power to exercise control over D
institutions and functionaries in all social
sectors;
(vii) the power to control over local plans and
resources for such plans including tribal sub- E
plans;
(n) the State legislations that may endow
Panchayats with powers and authority as
may be necessary to enable them to function
as institutions or self-government shall F
contain safeguards to ensure that
Panchayats at the higher level do not assume
the powers and authority of any Panchayat at
the lower level or of the Gram Sabha;
G
(o) the State Legislature shall endeavour to
follow the pattern of the Sixth Schedule to the
Constitution while designing the
administrative arrangements in the
H
506 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A Panchayats at district levels in the Scheduled
Areas.
[emphasis supplied)
11. To give effect to the provisions of PESA Act, the State
B Legislature of Jharkhand had passed the Jharkhand Panchayat
Raj Act, 2001 [Hereinafter 'JPRA'] which included the following
provisions:-
Section 17(8). Reservation of seats in Gram Panchayat.-
c (B) For the members of the Gram Panchayat (in
Scheduled Area). -
(1) In scheduled areas, in every Gram Panchayat,
reservation of seats in favour of Scheduled Castes and
D Scheduled Tribes shall be made, proportionate to their
respective population in that Gram Panchayat:
Provided that the seats reserved for Scheduled
Tribes shall not be less than half of the total number.
E (2) In the scheduled areas, in Gram Panchayat, seats shall
<be reserved in such number in favour of persons of
,t·ackward class, proportionate to their population, which,
if combined with the seats reserved for Scheduled Castes
and Scheduled tribes, if any, shall not exceed more than
F Eighty per cent of total seats of that Gram Panchayat.
Section 21(8) - Reservation of Posts of Mukhia and Up-
Mukhia in Gram Panchayat (In Scheduled area) -
Post of Mukhia and Up-Mukhia of the Gram Panchayats
G
in the scheduled areas shall be reserved for the scheduled
tribes;
Provided also that the Gram Panchayats, in the scheduled
areas, wherein there is no population of scheduled tribes,
H shall be duly excluded from allotment of reserved posts of
UNION OF INDIA ETC. v. RAKESH KUMAR AND 507
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
Mukhia and Up-Mukhia of scheduled tribes. A
Section 36(8)- Reservation of seats of Panchayat Samiti
(in Schedule Area) -
(1) In scheduled areas, in every Panchayat Samiti,
reservation of seats in favour of Scheduled Castes and B
Scheduled Tribes shall be made, proportionate to their
respective population in that Panchayat Samiti:
Provided that the seats reserved for Scheduled
Tribes shall not be less than half of the total number. c
(2) In the scheduled areas, in Panchayat Samiti, seats shall
be reserved in such number in favour of persons of
backward class, proportionate to their population, which,
if combined with the seats reserved for Scheduled Castes
and Scheduled tribes, if any, shall not exceed more than D
Eighty per cent of total seats of that Panchayat Samiti.
Section 40(8) - Reservation of Posts of Pramukh and Up- E
Pramukh in Panchayat Samiti (In the scheduled area) -
Posts of Pramukh and Up-Pramukh in Panchayat Samitis
in the scheduled areas shall be reserved for the members
belonging to the scheduled tribes.
F
Section 51 (8). Reservation of seats of Zila Parishad (in
Scheduled Area) -
(1) In scheduled areas, in every Zila Parishad, reservation
of seats in favour of Scheduled Castes and Scheduled G
Tribes shall be made, proportionate to their respective
population in that Zila Parishad:
Provided that the seats reserved for Scheduled
Tribes shall not be less than half of the total number.
H
508 SUPREME COURT REPORTS [2010] 1 S.C.R.
A (2) In the scheduled areas, in Zila Parishad, seats shall be
reserved in such number in favour of persons of backward
class, proportionate to their population, which, if combined
with the seats reserved for Scheduled Castes and
Scheduled tribes, if any, shall not exceed more than Eighty
B per cent of total seats of that Zila Parishad.
Section 55(8) - Reservation for Posts of Adhyaksha and
Upadhakshya in Zila Parishad (In scheduled area) -
The post of Adhyaksha and Zila Parishads in scheduled
C areas shall be reserved for the members of the scheduled
tribes.
12. In the High Court of Jharkhand, several writ petitions
were filed to challenge the constitutional validity of the PESA
0 Act, 1996 and certain other provisions of the Jharkhand
Panchayati Raj Act, 2001. With regard to the PESA, the main
challenge was directed against the second proviso to Section
4(g) whereby all the seats of Chairpersons of Panchayats at
all three tiers in Scheduled Areas are to be reserved in favour
E of Scheduled Tribes. The petitioners before the High Court had
contended 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 c:::itegory.
F •
13. It was also argued that the cent per cent reservation
of Chairperson positions was excessive and hence violative of
Article 14 of the Constitution. Some of the petitioners had urged
that the office of a Chairperson should be treated as a solitary
G post and hence reservation of such office was not permissible.
In support of this contention, they had relied on an earlier
Judgment of the Patna High Court in the case of Janardhan
Paswan v. State of Bihar, AIR 1988 Pat 75. This case was
distinguished by the High Court keeping in mind that it was
H decided before the commencement of the Seventy-Third
UNION OF INDIA ETC. v. RAKESH KUMAR AND 509
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
Amendment and that Article 243-D in Part IX of the Constitution A
had contemplated the said reservation policy. However, the
High Court held that the second proviso to Section 4(g) of the
PESA Act, 1996 reserving all the seats of Chairpersons of
Panchayats in favour of Scheduled Tribes was unconstitutional.
The relevant portion of the High Court Judgment reads as B
follows:-
".. So far as 2nd proviso to clause (g) of Section 4 of
PESA Act, 1996 is concerned, by such provision of the
seats of Chairpersons of Panchayats at all levels in the C
scheduled areas have been reserved for the Scheduled
Tribes. In view of the aforesaid proviso to clause (g) of
Section 4 of PESA Act, 1996, the State Government while
enacted Jharkhand Panchayat Raj Act, 2001 in regard to
the scheduled areas, all seats of Chairpersons of
Panchayats at all levels have been reserved for Scheduled D
Tribes vide Section 21 (B), Section 40(8) and Section 55
(B) of the Act, 2001. It has already been held that cent-
percent reservation of the offices and seats of
Chairpersons cannot be made, being excessive,
unreasonable and against the principles of equality i.e. E
violative of Article 14 of the Constitution of India. By the
aforesaid provisions cent-percent reservation of seats of
Chairpersons of Panchayats at all levels in scheduled
areas having been made, they cannot be upheld, being
unconstitutional. Accordingly, the 2nd proviso to clause (g) F
of Section 4 of PESA Act, 1996, Section 21 (B), Section
40 (B) and Section 55 (B) of Jharkhand Panchayat Raj Act,
2001 so far cent percent reservation of seats of
Chairpersons of Panchayats at all levels in favour of
Scheduled Tribes is concerned, are hereby declared G
unconstitutional and ultra-vires."
The above-mentioned finding of the High Court has been
challenged before this Court by the Union of India (appellant).
14. In the course of the proceedings before this Court, we H
510 SUPREME COURT REPORTS [2010] 1 S.C.R.
A heard Mr. Gopal Subramanium, Additional Solicitor General
[now Solicitor General of India] and Mr. M.P. Raju, on behalf of
the appellant. Mr. P.S. Mishra, Mr. M.N. Krishnamani, Sr. Adv.,
Mr. R. Venkataraman, Mr. Nagender Rai and Mr. Delip Jerath,
learned counsels made oral submissions on behalf of the
B respondents.
15. It should be kept in mind that apart from relying on the
earlier decision, the High Court did not state any specific
reason for striking down the second proviso to Section 4(g) of
the PESA Act, 1996 as well as Sections 21 (B), 40 (B) and
C 55 (B) of the JPRA Act, 2001 by holding these provisions to
be unconstitutional. The only reason given by the High Court
was that cent per cent reservation of the offices of Chairpersons
is excessive, unreasonable and against the principles of
equality. It may also be noted that the Bhuria Committee Report
D had recommended that the Chairman and Vice-Chairman of
Panchayats should belong to Scheduled Tribes. This
recommendation was accepted by the Union Government and
the PESA Act, 1996 was enacted to give effect to the same.
The Parliament has conferred such special reservation on
E account of the pivotal role of the Chairperson in a Panchayat.
It must have been felt that if the Chairperson positions are
occ:upied by non-tribal persons in Scheduled Areas, there is
no guarantee that such persons will account for the special
interests of the Scheduled Tribes.
F
16. While enacting the Fifth Schedule, the Constituent
Assembly was of the view that the subjection to normal laws
would have exposed the tribal communities to two dangers in
pa11icular. Both arose out of the fact that they were primitive
G people, simple, unsophisticated and frequently improvident.
Firstly, there was a risk of their agricultural land being usurped
by the more civilized section of the population. This would
threaten their livelihood and sustenance since the occupation
of the tribals was for the most part agricultural. Secondly they
were more likely to be victimized by the 'wiles of the
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 511
ORS., ETC. [K.G. 8ALAKRISHNAN, CJI.]
moneylender'. The primary aim of the government policy then A
was to protect the tribal communities from these two dangers
and to preserve their customs. This objective was pursued by
incorporating special provisions that were to be made
applicable to these backward areas. The main contention made
by the counsels for the respondents is that it is not justifiable 8
to reserve all Chairperson positions in Panchayats located in
Scheduled Areas in favour of persons belonging to the ST
category. At this juncture, we must clarify that Sections 21 (8),
40(8) and 55(8) of the JPRA have since been amended to
confine reservation to the office of Mukhiya (at Gram Panchayat c
level), Pramukh (at Panchayat Samithi level) and Adhyaksh (at
Zila Parishad level).
17. The counsel for the respondent had contended that the
constitutional intention behind Article 243-D is not that of 100
per cent reservation but only proportionate reservation and it D
speaks of rotation of the reserved seats. However, we must
emphasize that Article 243-M(4)(b) permits 'exceptions and
modifications' in the application of Part IX to Scheduled Areas.
The respondents have also argued that the maximum
reservation which is legally permissible is only up to 50 per cent E
and reliance was placed on the decisions of this Court in Indra
Sawhney v. Union of India, (1992) Suppl. (3) SCC 217 and
MR. Balaji v. State of Mysore, (1963) 1 SCC 439. However,
it should be kept in mind that both of these decisions were
given in respect of reservation measures enabled by Article 16 F'
(4) of the Constitution.
18. At the outset, we are of the view that the principles of
reservation which are applicable for public employment and for
admission to educational institutions cannot be readily applied G
in respect of a reservation policy made by the legislature to
protect the interests of the Scheduled Tribes by assuring them
of majority reservation as well as the occupancy of Chairperson
positions in Panchayats located in Scheduled Areas. This
policy broadly corresponds with the past practice wherein the H
512 SUPREME COURT REPORTS [2010] 1 S.C.R.
A Scheduled Areas were administered as per the provisions of
the Fifth Schedule to the Constitution and the same was
expected to adhere to the advice of the Tribes Advisory
Councils, which were predominantly controlled by Scheduled
Tribes. By extending the Panchayati Raj system to these areas,
B Scheduled Tribes should not be put in a relatively
disadvantageous position. In the Panchayati Raj system
contemplated by Part IX, the Scheduled Tribes should have an
effective say in the administration. That is why the Bhuria
Committee recommended that all Chairperson positions should
c be reserved in favour of Scheduled Tribes.
19. The Counsel for the respondents also contended that
the exclusive reservation in favour of Scheduled Tribes unfairly
limits the scope of political participation for others and since
all the offices of Chairpersons are reserved, there is no scope
D for rotation of seats as contemplated by the third proviso to
Article 243-D(4) of the Constitution. It was also pointed out that
in some of the Districts notified as Scheduled Areas, the
Scheduled Tribes are not in a majority. First of all, it is to be
remembered that the impugned reservation policy is applicable
E only to Scheduled Areas which were hitherto covered by the
Fifth Schedule to the Constitution. We must make it abundantly
clear that this pattern of reservation has been designed only
for Scheduled Areas which merit such exceptional treatment.
In the present case, it should be noted that the Scheduled Areas
F under consideration are restricted only to certain Districts in the
State of Jharkhand. In some Districts where STs are not
predominantly in occupation, only certain blocks have been
notified as Scheduled Areas by themselves. On account of
migration of non-tribal people in some areas, there may be a
G relatively lesser proportion of tribal population but historically
these areas were occupied almost exclusively by Tribal people.
20. In the course of the proceedings, our attention was also
drawn to a Constitution Bench decision reported as R. C.
Poudya/ v. Union of India (1994) Supp. 1 SCC 324, wherein
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 513
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
the majority had upheld the reservation of some seats in the A
favour of the Bhutia and Lepcha communities in the Sikkim
Legislative Assembly. In that case the majority had held that
even though legislative seats could not be ordinarily reserved
on the basis of ethnic and religious identity, an exception could
be made in this case on account of the particular historical B
factors that led to the integration of Sikkim with the Union of
India. The judgment in that case does not directly aid the case
of either side in the present litigation. However, the opinions
delivered in that case did touch on the importance of the 'one-
man, one-vote' principle that should be followed in liberal c
democracies. While this principle entails that there should be
parity between the weightage given to the votes cast by
individuals, the same cannot be enforced to an absolute
standard. This is because territorial constituencies are of
varying sizes with regard to the number of voters residing in D
them. This means that there is bound to be some disparity in
the weightage accorded to the votes cast by individuals across
different constituencies. This problem exists in all electoral
formats where representatives are chosen from territorial
constituencies. Needless to say the principle of 'one-man, one- E
vote' cannot be applied in an absolute sense in the context of
Panchayat elections in Scheduled Areas. However, it is the
responsibility of the executive to identify territorial constituencies
which have a certain degree of parity in their population levels.
It is of course important to re-draw these constituencies from
time to time, in keeping with the demographic shifts in the F
concerned area.
21. Concerns were also raised that in some instances the
notified Scheduled Areas include certain blocks in particular
districts but do not include the remaining blocks of the same G
districts. This is not a serious hurdle because it is quite clear
that the exceptional treatment for Scheduled Tribes will be
confined to the blocks that have been notified as Scheduled
Areas. This means that in the Districts where only some of the
blocks have been notified as Scheduled Areas, the impugned H
514 SUPREME COURT REPORTS [2010] 1 S.C.R.
A provisions of the JPRA will be applicable at the level of
Panchayat Samitis within the notified area but not at the level
of the Zilla Parishad for the whole district.
22. A comparable reservation policy contained in the
8 Madhya Pradesh Panchayati Raj Act was challenged in Ashok
Kumar Tripathi v. Union of India, 2000 (2) MPHT 193 and the
High Court upheld the provision. The High Court of Madhya
Pradesh held that:
"45. So far as the high percentage of reservation
c exceeding 50% for members and 100% reservation for
Chairpersons in Scheduled Areas is concerned, it is
supportable even on the touch stone of Article 14 of the
Constitution. It is a protective discrimination permissible
on a reasonable classification of different sections of the
D society into more oppressed-backwards and the forwards.
The peculiar situation of the inhabitants of the Scheduled
Areas whose conditions have to be improved to educate
them in the local Government, a step towards an effort to
achieve their assimilation in the normal stream of
E democratic life at par with the advanced and the forward
sections of the society justifies such classification. In the
Scheduled Areas in reality if an aboriginal has to contest
an election against a member of the forward section of the
society, the contest would be totally unequal as of a weak
F and ignorant against wealthy and powerful. In a contest of
this nature the weak and ignorant hardly can get a chance
to become a member and in any case it would be
impossible for him to reach to the helm of the institution
as Chairperson. If he by chance becomes a Chairperson
in the Panchayat consisting of elected members from
G
advanced sections of the society and the members are in
majority, it would be well nigh impossible for the
Chairperson of the reserved category to effectively function
and to save his elected status. The necessity, therefore,
is that the Chairperson should be from the reserved
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 515
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
category so that he is in a position to effectively function A
without inhibition and threat of no confidence motion
against him to remove him from his office .... "
23. In light of these observations, it is our considered
opinion that the High Court of Jharkhand had erred in striking
8
down Sections 21 (B), 40(8) and 55(8) of the Jharkhand
Panchayat Raj Act which give effect to the second proviso of
Section 4(g) of the Panchayats (Extension to Scheduled Areas)
Act, 1996. We hold that in Panchayats located in Scheduled
Areas, the exclusive representation of Scheduled Tribes in the
Chairperson positions of the same bodies is constitutionally C
permissible. This is so because 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 the D
same exceptional treatment was incorporated in the impugned
provisions of the JPRA.
24. The next point that arises for consideration is whether
it is constitutionally permissible to provide reservations in favour E
of Scheduled Castes (SC), Scheduled Tribes (ST) and Other
Backward Classes (OBC) that together amount to eighty
percent of the seats in the Panchayati Raj Institutions located
in Scheduled Areas of the State of Jharkhand? The High Court
had struck down Sections 17(8)(2), 36(8)(2) and 51 (8)(2) of F
the JPRA as unconstitutional by virtue of reasoning that
reservations to the extent of 80% of the seats in panchayats
were excessive, arbitrary and disproportionate, thereby
violating Article 14 of the Constitution. The Counsels for the
respondent had referred to the observations of this Court in G
M.R. Balaji v. State of Mysore, AIR 1963 SC 649 and Indra
Sawhney v. Union of India (1992) Supp 3 SCC 217 which had
prescribed an upper ceiling of 50% for reservation of posts in
public employment. Reference was also made to a decision
of the Patna High Court in the case of Krishna Kumar Mishra H
516 SUPREME COURT REPORTS [2010] 1 S.C.R.
A v. State of Bihar, AIR 1996 Pat. 112, wherein a similar view
had been adopted.
25. Sections 17(B)(1), 36(B)(1) and 51 (B)(1) of the JPRA
are in conformity with the first proviso to Section 4(g) of the
PESA Act as 50% of the seats in Panchayats located in
B scheduled areas are reserved in favour of ST candidates. The
High Court has not struck down these provisions. These
provisions contemplate that in Gram Panchayats, Panchayat
Samitis and Zila Parishads located in Scheduled Areas, the
reservation of seats for the Scheduled Castes and Scheduled
C Tribes shall be made on the basis of the proportion of their
respective population, provided that reservation for the
scheduled tribes shall not be less than half of the total number
of seats. In addition to this, Sections 17(B)(2), 36(B)(2) and
51 (B)(2) of the JPRA provide that in Gram Panchayats,
D Panchayat Samitis and Zila Parishads located in Scheduled
Areas, seats are to be reserved in favour of persons belonging
to backward classes in proportion to their population, so that
the aggregate reservations shall not exceed 80% of the total
number of seats available. By the impugned judgment, Section
E 17(B)(2), 36(B)(2) and 51(B)(~) have been held to be
unc:onstitutional mainly on the ground that they permit
'excessive reservation' which violates Article 14 .of the
Constitution. This finding of the High Court has also been
contested before us.
F
26. Before adverting to the contentions advanced by the
appellants' counsel, it is useful to refer to the pattern of
reservations set out in Part IX of the Constitution. Article 243-
D is reproduced below:-
G "Article 243-D. Reservation of Seats. - (1) Seats shall be
reserved for -
(a) The Scheduled Castes; and
(b) The Scheduled Tribes,
H
UNION OF INDIA ETC. v. RAKESH KUMAR AND 517
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
in every Panchayat and the number of seats so reserved A
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 B
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 c
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 D
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 E
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 F
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 G
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 H
518 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A 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
8 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 office of Chairpersons (other than the
reservation for women) under clause (4) shall cease to
c have effect on the expiration of the period specified in
Article 334.
(6) Nothing in this Part shall prevent the Legislature of a
State from making any provision for reservation of seats
D in any Panchayat or offices of Chairpersons in the
Panchayats at any level in favour of backward class of
citizens."
27. It may be noted that under Article 243-D there is a clear
mandate for the State Legislature to reserve seats for SCs and
E STs 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 SCs or Qf the STs in that Panchayat
area bears to the total population of the area under
F consideration. Article 243-0(6) further states that nothing in this
Part shall prevent a State Legislature 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. There was no contention on behalf
G of the petitioners before the High Court that the members of
backward class were not entitled to get reservation in the
scheduled area. With respect to scheduled castes, the State
was bound to provide reservation to them even in the
Scheduled Areas. As already noticed, under the PESA 50%
H of the seats in Gram Panchayats, Panchayat Samitis and Zila
UNION OF INDIA ETC. v. RAKESH KUMAR AND 519
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
Parishads should be reserved in favour of schedule tribes and A
the ceiling is fixed to the extent that this reservation put together
shall not exceed 80% of the total seats. The contention of the
respondents is that this policy will lead to reverse discrimination
against persons who are not eligible for such reservation
benefits. It may be noticed that this reservation policy is B
exclusively applicable to scheduled areas which had hitherto
been the subject of a separate administrative scheme under
the Fifth Schedule of the Constitution.
28. It is a well-accepted premise in our legal system that
ideas such as 'substantive equality' and 'distributive justice' are C
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 D
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 the standard of proportionality
rather than the standard of 'strict scrutiny'. Of course, these E
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 the F
Constitution.
29. The Statement of Objects and Reasons appended to
the Constitution (Seventy Second Amendment) Bill, 1991 which
was enacted as the Constitution (Seventy Third Amendment) G
Act, 1992 reads as follows :-
"Though the Panchayat Raj Institutions have been in
existence for a long time, it has been observed that these
institutions have not been able to acquire the status and
dignity of viable and responsive people's bodies due to a H
520 SUPREME COURT REPORTS [2010] 1 S.C.R.
A number of reasons including absence of regular elections,
prolonged supercessions, insufficient representation of
weaker sections like Schedule Castes, Scheduled Tribes
and women, inadequate devolution of powers and lack of
financial resources.
B (2) Article 40 of the Constitution which enshrines one of
the Directive Principles of State Policy lays down that the
State shall take steps to organize village panchayats and
endow them with such powers and authority as may be
necessary to enable them to function as units of self-
c government. In the light of the experience in the last forty
years and in view of the short-comings which have been
observed, it is considered that there is an imperative need
to enshrine in the Constitution certain basic and essential
features of Panchayat Raj Institutions to impart certainty,
D continuity and strength to them.
(3) Accordingly, it is proposed to add a new Part relating
to Panchayats in the .Constitution to provide for among
other things, Gram Sabha in a village or group of villages;
constitution of Panchayats at village and other level or
E
levels; direct elections to all seats in Panchayats at the
village and intermediate level, if any, and to the offices of
Chairpersons of Panchayats at such levels; reservations
of seats for the Scheduled Castes and Schedule Tribes
in proportion to their population for membership of
F Panchayats and office of Chairpersons in Panchayats at
each level; reservation of not less than one-third of the
seats for women; fixing tenure of 5 years for Panchayats
and holding elections within a period of 6 months in the
event of supercession of any Panchayat; disqualifications
G for membership of Panchayats; devolution by the State
Legislature of powers and responsibilities upon the
Panchayats with respect to the preparation of plans for
economic developments and social justice and for the
implementation of development schemes; sound finance
H of the Panchayats by securing authorization from State
UNION OF INDIA ETC. v. RAKESH KUMAR AND 521
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
Legislature for grants-in-aid to the Panchayats from the A
Consolidated Fund of the State, as also assignments to,
or appropriation by, the Panchayats of the revenues of
designated taxes, duties, tolls and fees; setting up of a
Finance Commission within one year of the proposed
amendment and thereafter every 5 years to; review the B
financial position of Panchayats; auditing of accounts of
the Panchayats; powers of State Legislatures to make
provisions with respect to elections to Panchayats under
the superintendence, direction and control of the chief
electoral officer of the State; application of the provisions c
of the said Part to Union territories; excluding certain State
and areas from the application of the provisions of the said
Part; continuance of existing laws and Panchayats until one
year from the commencement of the proposed amendment
and barring interference by courts in electoral matters 0
relating to Panchayats;
(4) The Bill seeks to achieve the aforesaid objectives."
30. Article 2430 of the Constitution, as stated earlier,
clearly ident.ifies the intended beneficiaries in the form of E
persons belonging to scheduled castes, scheduled tribes,
women and other backward class of citizens. While introducing
the 73rd Amendment Act, the Statement of Objects and
Reasons clearly contemplated democratic decentralization to
pursue the legitimate governmental objective of ensuring that F
the traditionally marginalized groups should progressively gain
a foothold in local self government. It is in this background that
'reasonable classification' is to be viewed.
31. 50% of reservation in favour of the STs in Panchayats
at all the three tiers is clearly an example of 'compensatory G
discrimination' especially in view of the fact that the scheduled
areas under consideration were completely under a separate
administrative scheme as per the Fifth Schedule to the
Constitution. In fact, 50% of reservation in favour of the
scheduled tribes by itself was not challenged before the High H
522 SUPREME COURT REPORTS [2010] 1 S.C.R.
A Court. Therefore, the question that now remains is whether
reservation should be made in favour of the scheduled castes
and backward class for the purpose of scheduled areas. The
Constitutional mandate is that the scheduled castes should be
given reservation at all the three tiers of Panchayats, with regard
B to the principle of proportionate representation.
32. The Division Bench of the High Court has relied on the
precedents relating to Article 15(4) and Article 16(4) by drawing
an analogy with the limits placed on reservations in higher
education and public employment. We must emphasize that
C Article 243-D is a distinct and independent constitutional basis
for reservation in Panchayat Raj Institutions. -:-his reservation
cannot be readily compared to the affirmative action measures
enabled by Articles 15(4) and 16(4) of the Constitution.
Especially on the unviability of the analogy between Article
D 16(4) and Article 243-D, we are in agreement with a decision
of the Bombay High Court, reported as Vinayakrao
Gangaramji Deshmukh v. P.C. Agrawal & Ors., AIR 1999 Born
142. That case involved a fact-situation where the chairperson
position in a Panchayat was reserved in favour of a Scheduled
E Caste Woman. In the course of upholding this reservation, it
was held:
" ... Now, after the seventy-third and seventy-fourth
Constitutional amendments, the constitution of local has
F been granted a constitutional protection and Article 2430
mandates that a seat be reserved for the Scheduled Caste
and Scheduled Tribe in every Panchayat and Sub-article
(4) of the said Article 2430 also directs that the offices of
the Chairpersons in the panchayats at the village or any
other level shall be reserved for the Scheduled Castes, the
G
Scheduled Tribes and women in such manner as the
Legislature of a State may, by law, provide. Therefore, the
reservation in the local bodies like the Village Panchayat
is not governed by Article 16(4), which speaks about the
reservation in the public employment, but a separate
H constitutional power which directs the reservation in such
UNION OF INDIA ETC. v. RAKESH KUMAR AND 523
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
local bodies .... " A
33. For the sake of argument, even if an analogy between
Article 243-D and Article 16(4) was viable, a close reading of
the Indra Sawhney decision will reveal that even though an
upper limit of 50% was prescribed for reservations in public
8
employment, the said decision did recognise the need for
exceptional treatment in some circumstances. This is evident
from the following words (at Paras. 809, 810):
"809. From the above discussion, the irresistible
conclusion that follows is that the reservations C
contemplated in Clause (4) of Article 16 should not
exceed 50%.
810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations D
inherent in the great diversity of this country and the people.
It might happen that in far-flung and remote areas the
population inhabiting those areas might, on account of their
being put of the mainstream of national life and in view of
conditions peculiar to and characteristical to them, need E
to be treated in a different way, some relaxation in this strict
rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out."
34. We believe that the case of Panchayats in Scheduled
Areas is a fit case that warrants exceptional treatment with F
regard to reservations. The rationale behind imposing an upper
ceiling of 50% in reservations for higher education and public
employment cannot be readily extended to the domain of
political representation at the Panchayat-level in Scheduled
Areas. With respect to education and employment, parity is G
maintained between the total number of reserved and
unreserved seats in order to maintain a pragmatic balance
between the affirmative action measures and considerations
of merit. Under Article 15(4) and 16(4) the reservation of seats
in favour of socially and educationally backward classes H
524 SUPREME COURT REPORTS [2010] 1 S.C.R.
A (SEBC) is ordinarily done on the basis of proportionate
representation and an upper ceiling of 50% allows for
considerable flexibility in distributing the benefits of higher
education and public employment among a wide range of
intended beneficiaries such as the Scheduled Castes (SC),
B Scheduled Tribes (ST), Women and Other Backward Classes
(OBC). However, the same approach of providing proportionate
representation is likely to be less effective in the context of
reservations for panchayats in scheduled areas. One reason
for this is the inherent difference between the nature of benefits
c that accrue from access to education and employment on one
hand and political participation on the other hand. While access
to higher education and public employment increases the
likelihood of gradual socio-economic empowerment of the
individual beneficiaries, involvement in local-self government is
intended as a more immediate measure of protection for the
0
individual as well as the community that he/she belongs to.
Especially in the context of Scheduled Areas, there is a
compelling need to safeguard the interests of tribal
communities with immediate effect by giving them an effective
voice in local self-government. The Bhuria Committee Report
E had clearly outlined the problems faced by Scheduled Tribes
and urged the importance of democratic decentralisation which
would empower them to protect their own interests.
35. By reserving at least half of the seats in panchayats
F located in Scheduled Areas in favour of STs, the legislature has
adopted a standard of compensatory discrimination which goes
beyond the ordinary standards of 'adequate representation'
and 'proportionate representation'. The standard of 'adequate
representation' comes into play when it is found that a particular
G community is under-represented in a certain domain and a
specific threshold is provided in order to ensure that the
beneficiary group comes to be adequately represented with the
passage of time. For instance in Part IX of the Constitution, the
reservation in favour of women which amounts to one-third of
H all the seats in Panchayats is an embodiment of the 'adequate
UNION OF INDIA ETC. v. RAKESH KUMAR f.ND 525
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
representation' standard. A
36. However, in instances where the Constitution does not
specify the quantum of reservations, the idea of 'proportionate
representation' is the rule of thumb. As mentioned earlier,
proportionate representation has been the controlling idea 8
behind reservations in the context of education and
employment which have a basis in Article 15(4) and 16(4)
respectively. Even in the context of Panchayati Raj Institutions,
Article 243-M( 1) and Article 243-M(6) explicitly refer to
'proportionate representation' as the controlling idea behind C
reservations in favour of SCs, STs and Backward Classes
respectively. With respect to the panchayats located in
Scheduled Areas, the flexibility provided by Article 243-M(4)(b)
has led to the enactment of the PESA which specifies
'proportional representation' as the norm for reservations in
favour of the intended beneficiaries, but makes a departure D
from this standard in order to protect the interests of Scheduled
Tribes in particular.
37. There is of course a rational basis for departing from
the norms of 'adequate representation' as well as E
'proportionate representation' in the present 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 F
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 G
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'. In this sense, it is not our job to
second-guess such policy-choices. A similar position was also H
526 SUPREME COURT REPORTS [2010] 1 S.C.R.
A adopted by the Madhya Pradesh High Court in Ashok Kumar
Tripathi v. Union of India, 2000 (2) MPHT 193, where
Dharmadhikari, J. made the following observations (extracted
from Para. 36, 37):
''. .. To safeguard interests of Scheduled Tribes living in
B
remote or hilly areas or forests with primitive culture of their
own, the Constitution envisages formation of Scheduled
Areas for them, and application of laws to them with
'exceptions and modifications', so that they are able to
preserve their culture and occupation and are not exposed
c to exploitation by forWard classes of Urban Population. The
protective discrimination ih favour of such deprived section
of the Society can go to the extent of complete exclusion,
if the circumstances so justify, of advanced classes in
Local Self Governance of Scheduled areas. The main
D object and purpose behind such reservations based on
population, even in excess of 50% is with a view that the
exclusive participation of deprived and oppressed sections
of the Society in Local Self-Government bodies in their
areas is ensured because in open competition with the
E advanced sections of the Society they can never have any
share to participate in Self-Governance. A close and
careful examination of the provisions of the Central and
State Act, in the light of Constitutional provisions, shows
that principle of proportionate representation based on the
F population of the reserved categories has been adhered
to but only departure has been made from it in giving them
larger share of self-governance by reserving seats for them
as member and in the Scheduled Areas a monopoly of
seats of Chairpersons has been created for them so that
G they conserve their culture and way of living .... For taking
a decision on the policy of reservation as to whether it is
reasonable or unreasonable, the Court has to examine the
overall Scheme of the Constitution as envisaged in Part
IX and IX A and the corresponding Central and State
H Legislation brought to implement it. The aim and object of
UNION OF INDIA ETC. v. RAKESH KUMAR AND 527
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
the reservation policy
I
contained in Part IX and IX A is that A
the Backward and oppressed sections of the Society have
to be encouraged in the democratic process by giving
them a share of governance which hither-to was denied
to them since the times of British India and after
independence. The other object at the same time is to B
protect them from urban influences so that they may be
able to conserve their culture and way of life and are not
exposed to exploitation by the advanced or socially and
economically powerful sections of the society.
At the Bar it was argued that such excess policy of C
reservation is bound to create bad blood between the two
classes and would be a serious deterrent to bring such
oppressed classes into the mainstream of democratic life.
There are arguments for and against this. In the matters
of policy the best judges are the Legislators who are closer D
to the society and represent them. They have a study of
the society and have advantage of reports based on
sociological surveys made by experts. They better
understand the needs of the society and the various
sections forming it. It is not for this Court to enter into this E
forbidden arena and lay down a policy of reservation. The
argument advanced on behalf of the petitioners only shows
that the attitude of the members of the advanced sections
of the society towards castes and tribes continues to be
more of competition than compassion. The reservation in F
various walks of life made in their fa·v'our for the last 50
years of the independence has not been successful in
improving their socio-economic condition and have not
made them effective participant in the democratic process.
The necessity is still felt by the legislators in making special G
provisions for them in the Constitution and the laws to
ensure their effective participation at least in the local self
Government institutions as a first step to give them due
share of governance in the Assemblies of the States and
the Parliament. The argument that the policy of reservation H
528 SUPREME COURT REPORTS [2010] 1 S.C.R.
A would segregate them rather than assimilate them with the
common stream is one for the legislator to consider on the
basis of existing social situation. In the matters of policy,
wisdom of legislature cannot be questioned or the policy
laid down cannot be upset by the Court which is ill
8 equipped to deal with the subject."
38. Even though there are cogent reasons for the
exceptional treatment accorded to Scheduled Tribes, there are
some other concerns that merit consideration. One such
concern is with the very identification of Scheduled Areas in the
C first place. It is a common refrain that the efficacy as well as
legitimacy of affirmative action measures can be questioned if
they are not targeted properly. In the present case, it was
pointed out that the identification of Scheduled Areas is done
on the basis of census data and the same is collected after
D intervals of 10 years. It was urged that the identification of
Scheduled Areas may not be accurate if it was based on
outdated data. Even though we were shown data describing
the distribution of the population belonging to the Scheduled
Tribes category in the various districts of Jharkhand (As per the
E 2001 census), it will suffice to say that the identification of
Scheduled Areas is an executive function and we do not
possess the expertise needed to scrutinize the empirical basis
of the same. The data submitted before us indicates that while
the Scheduled Tribes are indeed in a majority in some
F Scheduled Areas, the same is not true for some other
Scheduled Areas. This disparity is understandable keeping in
mind that there has been a considerable influx of non-tribal
population in some of the Scheduled Areas. In this regard, we
must re-emphasize the Bhuria Committee's recommendation
G that persons belonging to the Scheduled Tribes should occupy
at least half of the seats in Panchayats located in Scheduled
Areas, irrespective of whether the ST population was in a
relative minority in the concerned area. This recommendation
is in line with the larger objective of safeguarding the interests
H of Scheduled Tribes.
UNION OF INDIA ETC. v. RAKESH KUMAR AND 529
ORS., ETC. [K.G. BALAKRISHNAN, CJI.]
39. The other significant criticism of aggregate reservation A
amounting to 80% of the seats in Panchayats located in
Scheduled Areas is that it amounts to an unreasonable
limitation on the rights of political participation of persons
belonging to the general category. The rights of political
participation broadly include the right of a citizen to vote for a · B
candidate of his/her choice and right of citizens to contest
elections for a public office. In the present case, it was urged
that reservations amounting to 80% of the seats in Scheduled
area panchayats will have the effect of limiting the choices
available to voters and effectively discourage persons c
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 0
controlled through legislative means (See N.P. Ponnuswami's
case, AIR 1952 SC 64). For instance, the 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, the Representation of People Act, 1951 gives E
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 F
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.
40. In _the context of reservations in Panchayats, it can be 1 G
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 the competing H
~i30 SUPREME COURT REPORTS [2010] 1 S.C.R.
A interest in not curtailing the choices available to voters. It must
also be reiterated here that the 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
B a departure from the norm of 'proportionate representation'
·contemplated by Art. 243-0(1), we have already explained how
Art. 243-M(4)(b) permits 'exceptions and modifications' in the
application of Part IX to Scheduled Areas. Sections 17(8)(1),
36(8)(1) and 51(8)(1) of the JPRA merely give effect to the
c exceptional treatment that is mandated by the PESA.
41. 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
D in Sections 17(8)(2), 36(8)(2) and 51(8)(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
E 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.
F 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
G total population, the upper ceiling of 80% will become
operative.
42. Irrespective of such permutations, the legislative intent
behind the impugned provisions of the JPRA is primarily that
H of safeguarding the interests of persons belonging to the
UNION OF INDIA ETC. v. RAKESH KUMAR AND 531
ORS., ETC. [K.G. 8ALAKRISHNAN, CJI.]
Scheduled Tribes category. In light of the preceding discussion, A
it is our considered view that total reservations exceeding 50%
of the seats in Panchayats located in Schedule.d Areas are
permissible on account of the exceptional treatment mandated
under Article 243-M(4)(b). Therefore, we agree with the
appellants and overturn the ruling of the High Court of 8
Jharkhand on this limited point.
43. Dr. M.P. Raju, learned counsel appearing for one of
the Respondents, contended that Jharkhand Panchayat
Reservation Act should not have been extended to the
'Scheduled Area' as the Scheduled Tribes were enjoying more C
powers under the Fifth Schedule to the Constitution. The
learned Counsel contended that if those provisions are held to .
be unconstitutional as held by the High Court, it would be better
to revert to the system of Tribes Advisory Councils under the
Fifth Schedule. We do not find much force in the contention and D
it is only to be rejected.
44. In the result, the appeals filed by the Union of India are
allowed and the proviso to Section 4(g) of PESA Act and
Sections 21 (8), 40(8) and 55(8) of Jharkhand Panchayat E
Reservation Act, 2001 are held to be constitutionally valid. We
also hold that Sections 17(8)(2), 36(8)(2) and 51 (8)(2) of the
Jharkhand Panchayat Reservation Act, 2001 are constitutionally
valid provisions.
45. The other appeals are also disposed of accordingly F
and the State Election Commission of the State of Jharkhand
is directed to conduct elections for the Panchayati Raj
Institutions (PRls) as early as possible.
R.P. Appeals allowed. G
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