Reservation in an Elected Office is Constitutionally Valid
Asmita Kuvalekar | Government Law College Mumbai | 25th April 2020.
DR. K. KRISHNA MURTHY AND ORS VS. UNION OF INDIA AND ANR (WRIT PETITION (CIVIL) NO 356 OF 1994 WITH W.P (C) NOS 245 OF 1995 AND 517 OF 2005)
FACTS OF THE CASE:
On the question of basic principles of democracy and equality that form part of the Basic Structure Doctrine of the Indian Constitution, the Petitioners challenged the validity of certain Constitutional provisions. They assailed Article 243-D (6), Article 243-T (6), Article 243-D (4) and Article 243-T (4) on the grounds of discrimination and violation of the democratic ideal of equality. The impugned Articles of the Indian Constitution create reservations in elected offices of the Panchayats and Municipalities for SC/ST/OBC and women, not only as members but also as chairpersons.
The Apex Court in this case, evaluates the legal tenability of reservations for public offices in great detail while simultaneously highlighting the intrinsic objective of reservation policies in a democracy.
ISSUE:
- Whether Article 243-D (6) and Article 243-T (6) are constitutionally valid?
- Whether Article 243-D (4) and Article 243-T (4) are constitutionally valid?
JUDGEMENT:
The Court first and foremost, took notice of the principal contention raised against the Articles. The commonality of all petitions was that 234-D (6) and 243- T (6) are vague as they do not offer any uniform means of selecting beneficiaries. Similarly, across all petitions, the complaint against Article 243-D (4) and Article 243-T (4) was that they were unconstitutional because they provide reservations in the post of Chairperson of Panchayats or Municipalities. Further, it was also pointed out that OBCs across several states perform well in the political sphere and are already adequately represented, creamy layer included.
Several decisions were cited in the petitioners’ favour wherein the Apex Court had struck down reservation in single post offices for being violative of Article 16 (4). Overwhelmingly, it was contended that the Court should address the “reverse discrimination” against unreserved categories in politics as it is far greater than the discrimination and injustice faced by unreserved classes in education and jobs. In the latter, unreserved categories at least have other options available to them. However, that is not the case when it comes to running for elected office. The Petitioners therefore alleged that this form of discrimination not only takes away fundamental rights of the general category, but it also undermines the aim of democratic decentralization sought to be achieved through Panchayats and Municipalities.
On hearing the rebuttal from Shri Rajeev Dhavan appearing for the State of Bihar, whose arguments were more or less echoed by all the Respondents, the Supreme Court agreed that reservations in elected offices have a different constitutional basis. This was supported by the understanding that the purpose behind reservation in education and jobs and reservation in elected offices is different. Therefore, the same constitutional values cannot be applied mechanically. Recourse was taken to Bombay High Court’s decision in Vinayakrao Gangaramji Deshmukh v P .C Agrawal and Ors1 in which it upheld reservation for a Chairperson post in electoral office with the explanation that Article 16 (4) governs public employment, a constitutional value separate and distinguishable from reservation in local governing bodies as envisaged by Article 243-D.
At the same time, the Court empathised with the Petitioners’ position that social backwardness does not necessarily mean political backwardness. It also concurred on the fact that disadvantages faced by unreserved categories in politics are far greater than the disadvantages faced in academic and professional sectors. However, it pointed out that universal success of socially backward classes in politics would be an incorrect and potentially dangerous presumption. Often, social relegation and subjugation determine political performance as well and social bias makes people less likely to vote for backward class candidates. Therefore, social backwardness can be a satisfactory criterion for reserving seats in politics too.
With respect to the question of democratic ideals being overturned, the Court elucidated that reservation in politics is a more immediate measure of upliftment as compared to the gradual progress and empowerment seen through educational and professional reservations. Democracy is not achieved only by decentralization of power but by ensuring that such decentralization is inclusive and diverse in nature. In an ideal democratic structure, it is important to hear everybody and to do so, the Constitution empowers the Government to give underprivileged voices a platform. Seen this way, it becomes evident that political reservations benefit and represent entire communities rather than just the reserved candidate.
This is in stark contrast to the more individualistic boost given by a job reservation or a seat in a school/college. Additionally, this viewpoint explains why the creamy layer cannot be excluded in political reservations. The Apex Court was of the opinion that there are always going to be income discrepancies within a reserved class community; some are going to be better-off than others. But to serve the democratic spirit and in interest of an entire community’s representation, it is best to not allow financial betterment to be an impediment for reservation in elected office. In fact, it is possible that the creamy layer has better and more effective means to represent their backward community. Thus, they must not be stripped of the benefit of reservation on the mere fact of improvement in financial standing.
On the question of Constitutional validity of the impugned Articles 243-D (6) and 243-T (6), the Respondents’ submission that these are nothing more than enabling provisions was promptly agreed to by the judges. It noted that the challenge to these Articles on grounds of violation of Article 14 was unfounded. The judges conceded that the provisions specify neither a process of selection, nor a maximum limit for reservation but highlighted the State Governments’ discretion in that regard. Recognizing that the main grievance raised by the Petitioners’ was the overbreadth in handing out reservations to the already well-represented OBCs in various States, it was held that Courts can be approached to look into excessive reservation but that does not justify the total nullification of the reservation provisions under the impugned Articles. Additionally, the Court underlined the Executive’s duty to review State reservations from time to time so as to steer clear of excessive and unreasonable reservation.
Leaving the Petitioners free to challenge specific State legislations on empirical data regarding OBC backwardness and their requirement of reservation, the judges voiced the need for new policy-making that would consider the discrepancies between social and political status of a given community. Lamenting the absence of a clear quantum of reservation in the Constitution, the Supreme Court nevertheless reiterated that the 50% mark in vertical reservation should not be breached. To that effect, the Petitioners’ miscalculation of women’s reserved seats as vertical reservation was brought to light and dismissed with the explanation that seats reserved for general category women should not be counted while verifying the breach of the 50% mark as it is incorporated horizontally into the scheme by culling out a sub-ratio of already reserved seats. However, adopting the stand taken in the landmark judgement of Indra Sawhney2, it was clarified that the 50% maximum limit for reservation may be modified if a special case is made out. Accordingly, greater reservation in North Eastern States and Fifth-Schedule areas was declared to be just and within legal considerations. If such a special case is not made out, more than 50% reservation in “general areas” would be illegal and the Court directed States to look into necessary legislative measures to remedy the same.
Lastly, on the criticism of cent-per-cent reservation in solitary posts like Chairperson for Panchayats or Municipalities, the Supreme Court once again drew the Petitioners’ attention to the difference between Article 16(4) and Article 243. Under Article 16 (4), reservations cannot be made out for single posts in public employment but owing to the distinct character of Article 243, such reservations are permissible in the latter. Going a step further, the Court rejected the characterization of the post of Chairperson as a single post, reminding the Petitioners that based on the population of SC/ST in an entire State, some Panchayat Chairperson seats and not all are reserved. It is clearly proportional in nature and therefore should not be seen as singular. Thus, both Article 243-D (4) and Article 243-T (4) were held to be reasonable provisions and thereby, valid.
On the final and more widely popularized criticism of ‘‘reverse discrimination’’ against unreserved classes raised by the Petitioners here, the Court reinforced the well-settled principle that the right to vote and electoral participation rights are not considered to be fundamental rights in India. They are legal rights, subject to control and modification by the Legislature. Thus, the judges refused to view the case from the point of view of violation of Fundamental Rights, holding that the case being an affirmative action dispute, the correct mode of analysis is whether challenged reservation policies are proportional in nature. Reservation in the post of Chairperson does restrict the chances of unreserved categories but that is a collateral effect of ensuring empowerment and adequate representation of weaker sections in leadership of self-government institutions. The aim behind reservation policies is substantive equality over empty, formal equality and the impugned Articles of the Constitution seek to alleviate these intrinsic differences in population at the local level where discrimination is all-pervasive and the resources to overcome the same are scarce as compared to State/Union level politics.
With respect to the real-life efficacy or lack thereof of reservation, the Apex Court acknowledged both the successful and unsuccessful outcomes in various regions but emphasized that it is not for the Courts to second-guess the benefits of social welfare measure brought into force by a Constitutional amendment.
Therefore, the challenge to Article 243-D (6), Article 243-T (6), Article 243-D (4) and Article 243-T (4) was dismissed. The provisions were declared to be constitutionally valid.
- AIR 1999 Bom 142
- 1992 Supp (3) SCC 217
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