Ashok Kumar Tripathi vs The Union Of India And Others, 2000 (2) MPHT 193
Before Madhya Pradesh High Court
Bench: D Dharmadhikari, S Kulshrestha
Author of the Judgement: D Dharmadhikari
Decided on: 17 December 1999
|SR. No||Titles||Relevant Section/s.|
|1||Constitution of India||Article 243M (b)(4), Article 14|
|2||Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996||Section 4|
Deriving powers from Article 243M Sub-clause (b) of Clause (4) the Parliament passed Act No. 40 of 1996 named the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996. Section 4 contains the Exceptions and Modifications to Part IX of the Constitution applicable to the Scheduled Areas. The relevant part of Section 4 which is for consideration before us reads thus :–
- “The reservation of seats in the Scheduled 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 Part-IX of the Constitution
- Provided that the reservation for Scheduled Tribes shall not be less than one-half of the total number of seats :
- Provided further that all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes.”
The Madhya Pradesh government made some reservations according to the PESA provisions.The reservation was to be limited to 50% of total seats. However, for Janpad Panchayat Anuppur it is pointed out that it works out to 82% and hence a claim was made to the court regarding the validity of election process in panchayats.
- Alleged reservation of seats for election to Panchayats in excess of 50% for Scheduled Castes, Tribes, Women and Backward Classes and 100% reservation of seats of Chairpersons in the Panchayats in scheduled areas of Madhya Pradesh for the ensuing elections to be held as per the programme notified under the provisions of M.P. Panchayat Raj Adhiniyam, 1993 have been challenged. Whether such an election should be held?
- Is such kind of reservation valid although it negates the 50% reservation?
- Has not such arbitrary and excessive reservation resulted in creating a rule of a minority in Local Self Government Institutions over majority which is not countenanced by Rule of Equality under Article 14 of the Constitution of India which is fundamental to the governance country?
At the Bar, it was argued that such excess policy of reservation is bound to create a bad blood between the two classes and would be a serious deterrent to bringing such oppressed classes into the mainstream of democratic life.
The reservation in various walks of life made in their favor for the last 50 years of the independence has not been successful in improving their socio-economic condition and have not made them an effective participant in the democratic process.
The argument that the policy of reservation 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-equipped to deal with the subject.
For the aforesaid reason, keeping into consideration the self-imposed limitations in exercise of powers for interfering in election matters, this Court rejects the preliminary objection and would proceed to examine the merits of the Writ Petitions as to whether any of the grounds urged make out a strong case for interference by us at a stage when the election process is already in the offing.
- Article 14, does not envisage equal treatment of unequal. The Constitution itself has recognized the necessity of special treatment and protection to the socially and the educationally Backward Classes or citizens like Scheduled Tribes, Scheduled Castes and Socially Economically Backward citizens. Article 14 of the Constitution permits, therefore, protective treatment to deprived classes of citizens vis-a-vis the forward and advanced classes of the Society.
- The main object and purpose behind such reservations based on population, even in excess of 50% is 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 advanced sections of the Society they can never have any share to participate in Self-Governance.
- The Fifth Schedule of the Constitution provides for administration and control of Scheduled Areas and of Scheduled Tribes. These provisions also moderate, modify and indeed curtail many of the provisions in the Constitution. It is important to note that these special provisions have been made because of the peculiar features of the Scheduled Areas, the foremost of which are the traditions of the people and their vulnerability vis-a-vis non-tribes within Scheduled Areas as well as the inhabitants of non-Schedule V Areas.
- It is this realization which restrained the 73rd Amendment of the Constitution from being applied in toto in the Scheduled Areas and in making special provisions in Act, 40 of 1996.
- So far as the high percentage of reservation exceeding 50% for members and 100% reservation for Chairpersons in Scheduled Areas is concerned, it is supportable even on the touchstone of Article 14 of the Constitution. It is a protective discrimination permissible on a reasonable classification of different sections of the 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 democratic life at par with the advanced and the forward sections of the society justifies such classification.
Such cent per cent reservation can be held to be valid as it is based on positive and protective discrimination and the unequal are being treated unequally. It is valid as it is a protective and uplifting measure.Ergo, it is not violative of Article 14 of Indian constitution.
(This brief was prepared and submitted to LawBriefs.in by Pratiti Desai, Student at Gujarat National Law University.)