K. Krishna Murthy & Ors. v Union of India, 2010
Former C.J.I. K.G. Balakrishnan
Introduction
This
is a landmark case law which is regarding the matter that whether certain
articles in the Constitution of India which are providing reservation of backward class in the
Local-Self Governance institutions are constitutional or not. A writ petition
was filed before the Supreme Court of India against the reservation policy
mentioned in the composition of the elected members of the panchayat and municipalities.
The petitioner challenges the provisions which enable the reservation before
the Hon’ble Court as they are alleged to be violative of principles of Equality
and Democracy, which are now a part of the basic structure doctrine of the Constitution.
Composition
of the Bench
It
was a 5-judge bench consisting of:-
1. Justice
K.G. Balakrishnan,
2. Justice
R.V. Raveendran,
3. Justice
D.K. Jain,
4. Justice
P Sathasivam, and
5. Justice
J.M. Panchal
Area
of Law
The
case is related to the Constitutional law of India, that challenges the
validity of certain article of the Constitution which provide reservation to
the backward class in the Local-Self-governance institutions in India. Constitutional
law
Brief
Facts
As
per the 73 Constitutional Amendment Act, 1992 and 74th
Constitutional Amendment Act, 1992 Part 9 and 9-A got inserted into the
Constitution of India, namely the ‘The Panchayat’ and ‘The Municipalities’
respectively. These contemplated the power, composition and function of the
Local Self Government Institutions. The objective of the amendment was to
democratic decentralised power, greater accountability between public and state
and the empowerment of the weaker sections of the society. Even Article 40 of
the Constitution which is one of the Directive principles says that the
government shall take steps to organise village panchayat with such power which
is necessary for them to function as a unit of self-government.
The
petitioner challenges the Article 243-D(6), 243-D(4), 243-T(6) and 243-D(4) of
the Constitution.
Jurisdiction
A
writ petition (civil) was filed before the Hon’ble Supreme Court. It was a
Civil Original Jurisdiction as provided under article 32 of the Constitution.
Such petition is filed only in the case where there is a breach of the fundamental
right of the citizen of India by any law.
Question
of Law
The
principle of Equality, Democracy, Fraternity which forms part of the basic
structure doctrine is challenged in the court of law. The petitioner challenges
the reservation on the ground that it is discriminatory in nature on the basis
of caste and gender.
Arguments
1. Petitioner
a. The petitioner initially challenged
article 243-D clauses 2 to 6 and article 243-T clauses 2 to 6. He also
challenged the Karnataka Panchayati Raj Act, 1993, which were providing
reservation to SC, ST, Women and Backward classes of about 15%, 3%, 33% and 33%
respectively. Even the chairperson position was reserved in a similar
proportion.
b. He contended that without any proper
guidance or procedure, how come the legislature identified the beneficiaries
and provided them with such quantum of reservation. There are even more chances
that the state government may engage in more vote-bank politics by preferring
one group over another.
c. The provisions inserted by way of the 73rd
and 74th constitutional amendments were unconstitutional as they
were violative of the principles such as, equality, democracy and fraternity,
which forms the part of basic structure doctrine. In the case of I.R. Coelho v
State of Tamil Nadu, 2007 the Supreme Court has made it clear that the Acts
placed even in the 9th Schedule of the Constitution are subject to
Judicial Review if they are violative of Fundamental Rights of the
Constitution.
d. The reservation policy of Karnataka is
providing nearly 84% of reservation seats in Panchayats, which is excessive and
violative of the Equality clause. Even in the case of Indra Sawhney v Union of
India, 1992 and M.R. Balaji v State of Mysore, 1963 the Supreme Court of India
has provided a ceiling of 50% reservation to the government and in no case, it
shall exceed this limit. It was even argued that the reservation policy does
not meet the test of ‘reasonable classification’, as the OBCs are already very
well represented in the political space of the state legislature and hence
falling out of Article 14 of the Constitution.
e. Caste-based reservation as provided by the
abovesaid articles and statutes are not targeting the people backwards in the
economic and social sense as there is ample evidence that shows that people
taking the benefit of reservation are MPs and MLAs as per Chinnappa Reddy
Commission Report 1990. It is even in violation of Article 15 as the
reservation is solely on the basis of caste. OBCs are well represented in the
legislature and there is a high degree of political mobilization among them.
Economic backwardness should not be conflated with political backwardness. Even
under Article 340 of the Constitution, there were no findings that showed that
OBCs had suffered a comparable degree of disadvantage.
f. Even the concept of ‘creamy layer’ was
excluded from Article 243-D(6) and 246-T(6) in a manner as prescribed for
reservation for higher education in Article 15(4)and(5). Hence it is itself
frustrating the objective reservation policy as the intended disadvantageous
group of people would not be able to receive the benefit.
g. The chairperson position of Panchayat is
an executive position and reserving such a position would set a dangerous
precedent that could lead to reservation of executive post in the higher level
of governance as well. By allowing this, the reserved chairperson is more
likely to carter narrower interest of their own community rather than working
for the welfare of the community as a
whole.
h. The court shall strive for a balance
between the justice to the backward, equity for the forward and efficiency for
the entire system [M. Nagaraj v Union of India, 2006]. Undoubtedly reservation
in elected local bodies do put a restriction upon the political participation
of the people who do not belong to the reserved category and hence the court
shall check the reasonableness of this restriction with respect to the free and
fair election objective as laid down in Indira Gandhi v Raj Narain, 1975.
i. Reverse discrimination takes place while
applying the reservation policy is of a higher degree than what transpired in the
case of education and employment. Instead of recruiting a meritorious
candidate, recruiting a reserved candidate would certainly lead to a decline in
efficiency and progress of the system altogether. Reservation policy not only
snatches the right of general category people but also frustrate the pursuit of
democratic decentralization.
2. Respondent
a. The respondent contended that the nature and
purpose of the reservation policy in the local self-government were different
from that of education and employment, it is concerned with the idea of
substantive equal political representation rather than formal equality, at the
grass-root level. The test of reasonable classification shall not be made
mechanically but due regard shall be made to the objective of democratic
decentralisation such as empowerment of the weaker sections, fair
representation of social diversity and more accountability between voters and
elected members. The reservation policy is in consonance with abovesaid
objectives.
b. The principles of equality shall not be
applied with the straight jacket policy but also account for ‘equality of
expectations’ and ‘equality of outcomes. The equality lies only amongst the
equals, but the unequal class of people shall be treated unequally in order to
achieve equality. Here we are dealing with horizontal equality in a political
sense. Owning to the complex pattern of inequality, there shall not be the adoption
of formal equality standards, but rather affirmative actions are required to be
taken.
c. Though there was no guidance for quantum
and beneficiaries of reservation, the same is a subject matter of policymaking
and the state government is empowered to investigate at its own level and
confer reservation accordingly. The phrase backward class is co-extensive with
‘Socially and Educationally Backward Classes’ (SEBCs), contemplated with
Article 15(4) and(5).
d. The judicial decision regarding the
ceiling of 50% reservation is only regarding the educational and employment
matter. Whereas the reservation provided under the impugned provisions is regarding
the political representation at the grass-root levels only. The reservation in
excess of 50% is supported by the 5th and 6th schedule of
the Constitution and even Legislative Assemblies of some states also exceeds
this ceiling of 50%. The women reservation is a vertical reservation that
intersects with the vertical reservation, which shall not be taken into account
while computing the 50% ceiling limit.
e. The reservation of the post of chairperson
is of the nature of protective discrimination. The reservation of the post of the
chairperson shall be done on a rotational basis. And the argument that such
reservation would be a precursor for reservation at a higher level is invalid
as both the level are very different from each other. At the local level, the
pattern of discrimination and disempowerment is more persuasive, and this would
make it difficult for the weaker to have a say in the governance and hence it
is important to have a reservation of chairperson.
f. Substantive equality shall be the idea
that should be followed as it is itself a part of basic structure. It was
further contended that the reservation policy in favour of the weaker section
was present in India even before 73rd and 74th Amendment
in 1993. It could be traced even back in the pre-constitutional period to the post-independence
period. Various committees like Balwant Rai Mehta Committee, 1957 and Ashok
Mehta Committee, 1978 had given the emphasis on the adequate reservation policy
in the Local Self-Government for a marginalized group.
Reliance
on Relevant
1. Statue
· Constitution
of India, 1949
· Karnataka
Panchayati Raj Act, 1993
2. Decided
Cases
· I.R.
Coelho v State of Tamil Nadu, 2007
· Indra
Sawhney v Union of India, 1992
· M.R.
Balaji v State of Mysore, 1963
· M.
Nagaraj v Union of India, 2006
· Indira
Gandhi v Raj Narain, 1975
· Vinayakrao
Gangaramji Deshmukh v P.C. Agrawal & Ors, 1999
3.
Committees report
· Chinnappa
Reddy Commission Report, 1990
· Balwant
Rai Mehta Committee, 1957
· Ashok
Mehta Committee, 1978
Nature
of Issues
The
issue before the Court is that whether Article 243-D(6), 243-D(4), 243-T(6) and
243-D(4) of the Constitution are constitutionally valid or not. Since they
enable reservation to the backward class of people in Panchayat and
Municipalities. The issue altogether deals with the Constitutional law and
Karnataka Panchayati Raj Act, 1993.
Opinion
of the Hon’ble Supreme Court of India
I. I. The Supreme Court of India was of the opinion that the reservation policy as under article 243-D and 243-T is distinct from that of reservation policies under article 15 (4) and 16(4) as the earlier ones are of the objective and purpose of reservation in Local Self-Government whereas the former is for improving the educational and public employment opportunities for the backward class citizen. The Court invalidated the petitioner analogy of linking article 16(4) to 243-D and relied on the judgement in the case of Vinayakrao Gangaramji Deshmukh v P.C. Agrawal & Ors, 1999 of the Bombay High Court, where the court said that after the 73rd and 74th constitutional amendment the reservation policy in the Panchayat and Municipalities for the marginalised people shall be such as the state legislature by law provides and is not governed by the Article 16(4) of the constitution, which only speaks about reservation in public employment.
II. The
backwardness in the socio and economic sense does not imply political
backwardness. In determining that who would get access to the education and
employment due regards shall be given to the merit and efficiency and since educationally
and economically backward class people competing in any such competition are at
a disadvantage, they are provided with reservation. But in the case of Local Self-government,
it is difficult to determine the parameters that who will get elected as a
representative. The voters are not influenced by merit but rather his/her
ability to canvass support, ideologies, affiliation to any group and past
records of achievements. Though SC/ST/OBCs can possibly achieve the above said
subjective criteria’s but the same cannot be presumed in all situations.
Backwardness in the social and economic parameter can act as a barrier for the
backward people to have effective political participation.
III. Reservation
in the Local Self-Government is a more effective tool to achieve empowerment of
the weaker section of the society. The democratic decentralisation not only
brings governance closer but also make governance more participatory,
accountable and inclusive to the weaker section. Hence such reservation would
benefit the society as a whole and not only any particular community.
IV. The
exclusion of the creamy layer concept in the reservation policy of Local
Self-Government may not be feasible like that of u/a 15(4) and 16(4). As at the
level of Panchayat and Municipality, the objective of representation is only to
put forward the interest of weaker sections and hence it would be
counter-intuitive to exclude better off reserved category people from the representation.
The objective is to make the composition more diverse of local bodies and it is
more probable that better-off people of the reserved category are more able to
protect the interest of their community.
V. The
Chinnappa Reddy Commission Report, 1990 is a 20-year-old report which was made in
the absence of empirical data. As per the mandate of Article 340, the
commission shall conduct a rigorous empirical inquiry. Hence it is impossible
for the court to decide that whether the report is very relevant in the present
context or not for determining the status of OBCs.
VI. The
socio and economic backwardness do not necessarily coincide with political
backwardness. Hence the reservation policies for a political backward class
shall not necessarily coterminous with Socially and Educationally Backward
Class (SEBC). The barrier that leads to backwardness in political participation
shall not be of the same character which leads to difficulty in access to
education and employment and therefore fresh thinking and policy is the
requirement of the time in order to achieve the objective.
VII. The
reservation may exceed the 50% ceiling in certain case of political
representation, for e.g., in legislative assemblies of North-Easter states.
Even in the recent case of Union of India v Rakesh Kumar, the Supreme Court has
explained that how important it is to exceed the reservation above 50% of
Panchayat located in Scheduled areas. Even the petitioner has not taken into
account the difference of the horizontal reservation for women, which shall not
be added with the vertical reservation while cumulating the total reservation.
VIII. The
chairperson of Panchayat shall not be seen as a seat of solitary alone but
rather reference shall be taken of the entire pool of chairperson in each tier
of three levels of Panchayati Raj Institutions in a state. And the reservation
is provided in the proportion of the population of people belonging to these
reserved communities and the population of the entire state. The court said
that by the bare reading of Article 243-D(4), the meaning would be quite clear.
And the analogy of comparing the chairperson with the seat of a higher level of
governance misplaced. The legislature intended that the weaker section not only
get a chance for political representation but shall also get the chance to play
leadership roles.
IX. The
court because is dealing with affirmative action’s measure therefore it would
be better to take a test of proportionality rather than a test of reasonable
classification for exercising judicial review powers. As the test of reasonable
classification met the object of the legislature to safeguard the interest of
weaker sections by ensuring repetition and empowering Local Self-Government.
Methodology
of Judging the Issue Involved
The Supreme Court of India has applied the literal rule of interpretation while interpreting the Articles of the Constitution. The Karnataka Panchayat Raj Act, 1993 is a remedial statute for the protection of the rights of weaker sections. The only duty of the court is to give effect to the language of the statutes and the Constitution, which the directly elected government makes. The intentions of the legislatures while enacting the law was expressed by words and thus the courts should be interested in rules of grammar.
New Principles/Guidelines
1. The
concept of ‘creamy layer will not be applicable in the reservation policies
intended for the political representation of the weaker sections of the
society.
2. The
reservation protected u/a 15(4) and 16(4) is different to that of reservation
protected u/a 243-D and 243-T.
3. While
deciding the ceiling of 50% of the reservation, the horizontal reservation
shall not be included while aggregating the total reservation.
4. In
certain cases, it is permissible by the Supreme Court that to exceed the
ceiling of 50%, while giving reservation to the weaker sections for the
political representation of Scheduled Tribes in Scheduled Areas.
5. The
reservation of chairperson post in Panchayat is constitutionally valid if
contemplated by article 243-D(4) and 243-T(4) and the same cannot be equated
with the solitary post in public employment.
Aim
of Majority Ruling
The
aim of the majority ruling was to enhance the political representation of the
weaker section and thereby contributing to their welfare in the long run. To
increase the diversity in the composition of the local bodies of Panchayat and
Municipality. Letting the better off reserved category people represent their
communities’ interest and have political representation under the reserved
category.
[
Remarks
Generally,
the country has witnessed a tussle between the government and the judiciary
over reservation matters. Where on the one hand the government is inclined to
provide more reservation to the people, on the other hand, the Supreme Court
and other High Courts were more reluctant to increase the sphere of reservation
and tried to hold on to a narrower perspective in order to foster merit-based
selection. But in this case, where the question of the reservation is not for education
and employment but rather on the political representation, the Supreme Court
has upheld the state legislature and allowed the reservation for the weaker
section of the society. This is a welcoming move of the Supreme Court and it
was rightly observed by the Court that both the reservation policies as
provided u/a 16(4) and u/a 243-D are different altogether and hence needed to
be treated differently. These reservation policies will foster a more diverse
composition of local bodies which I believe is the demand of a diverse country
like India, in order to maintain peace and brotherhood along with the
upliftment of the weaker sections of the society.
Also Read - How did the Reservation System Started in India- The Truth Behind
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