Union of India etc. v. Rakesh Kumar and Others: A Case Comment

Unionof India etc. v. Rakesh Kumar and Others

This is a case relating to Reservation in Panchayati Raj in Tribal Areas. I won't go into the facts. This case is very important as it protected the interests and rights of people in the Tribal Areas. It laid down following propositions:

1.      The court upheld cent percent reservation constitutional in case of seats of Chairpersons of Panchayats in Scheduled Areas. The Court said that this pattern of reservation has been designed only for Scheduled Areas which merit such exceptional treatment. It relied on a MP High Court Judgment (Ashok Kumar Tripathi v. Union of India) which said that:

“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 touch stone 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. 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 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 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 category so that he is in a position to effectively function without inhibition and threat of no confidence motion against him to remove him from his office.”

2.      The Court also upheld the reservation exceeding 50% limit in Panchayati Raj Institutions. It cited various reasons for it:

a.       Article 243-M(4)(b) permits `exceptions and modifications' in the application of Part IX to Scheduled Areas.

b.      The Court cited Indra Sawhney’s case:

“809. From the above discussion, the irresistible conclusion that follows is that the reservations 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 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 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.”

c.       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 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.

d.      The inherent difference between the nature of benefits 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 individual as well as the community that he/she belongs to.

e.       Lastly, the court cited Ashok Kumar Tripathi v. Union of India:

“At the Bar it was argued that such excess policy of 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 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 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 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 effective participant in the democratic process. The necessity is still felt by the legislators in making special 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 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.”

3.      The Court also upheld that aggregate reservation amounting to 80% of the seats in Panchayats located in Scheduled Areas does not amount to an unreasonable limitation on the rights of political participation of persons belonging to the general category.

The court said that 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 controlled through legislative means (N.P. Ponnuswami's Case). In the context of reservations in Panchayats, it can be 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 interest in not curtailing the choices available to voters.

Observations: 

In this case, all the issues were thoroughly discussed by the Court. With regards to the first issue, I agree with the court that Socio-economic equality and political equality are not the same thing and protective discrimination is permissible under Article 14. The whole purpose of political equality is to give voice and representation to the weaker sections of the society. It has no relation with the economic status of a person. This is especially needed in case of Tribal areas because Tribal Areas are pretty secluded from the rest of the population and most of the times, there voice and demands don’t even reach the state since they are not adequately represented in the political machinery of the state.

With respect to 50% reservation ceiling, the court rightly differentiated Indra Sawhney’s case with the present case and laid that it is Article 243M(4)(b) which empowers Parliament to go for such kind of reservation. Also, Ashok Kumar’s case was very relevant since it rightly lays down that Legislature represents the true will of the people and its wisdom cannot be questioned by the Court for the Court is ill-equipped in this area.

However, I am not very sure about the third issue. Without even discussing the concept of election and voting, the court out rightly rejected this issue on the ground that since Right to vote or contest in an election is not a fundamental right and is merely a statutory right, the question of unreasonable limitation does not arise. I think this issue needs a more careful study and more sound reasons should have been provided by the Court if it thinks so. This has been the attitude of the Apex Court in all the cases which talk about Right to Vote. However, a larger bench of the Supreme Court is discussing on this issue specifically in relation to negative voting. Still, every case is to be decided on its own merits. Hence, the court should have given reasons in this case as well as to rights of political participation of persons belonging to the general category. Just because right to vote is a creature of a statute, it does not mean that the whole political participation of a class of persons can be neglected.

Overall, I feel that it is a very sound and a much needed judgment since Tribal Areas are being exploited badly in our country and this judgment must have given them a breath of relief.