Supreme Court of India
DR. K. KRISHNA MURTHY & ORS.versusUNION OF INDIA & ANR.
- Citation
- 2010 INSC 307
- Decided
- 11 May 2010
- Disposal
- Disposed off
- Bench
- K G BALAKRISHNAN
Holding
Articles 243‑O(4), 243‑O(6), 243‑T(4) and 243‑T(6) are constitutionally valid, provided the 50% ceiling on vertical reservations is not breached and challenges to specific state legislation are pursued in the High Courts.
Summary
The petitioners challenged the constitutional validity of Articles 243‑O(4), 243‑O(6), 243‑T(4) and 243‑T(6) inserted by the 73rd and 74th Amendments, arguing that reservations of chairperson posts and of seats for backward classes in Panchayats and Municipalities violated equality, democracy and the basic structure. The Court examined whether these provisions constitute a distinct affirmative‑action scheme for local self‑government, separate from the reservation principles applicable to education and public employment. It held that the nature and purpose of reservations in local bodies are different and that the constitutional provisions are enabling statutes, not violative of the equality clause. The Court upheld the validity of the reservation of chairperson posts and of seats for backward classes, subject to the 50% ceiling for vertical reservations and the requirement that challenges to specific state legislation be brought before the High Courts. Consequently, the writ petitions were dismissed and the constitutional provisions were affirmed.
Issues considered
- Whether Articles 243‑O(6) and 243‑T(6) enabling reservations for backward classes in local self‑government are constitutionally valid.
- Whether Articles 243‑O(4) and 243‑T(4) permitting reservation of chairperson posts in Panchayats and Municipalities are constitutionally valid.
- Whether the 50% ceiling on vertical reservations applies to reservations in local self‑government.
- Whether the identification of "backward classes" under these articles must coincide with SEBCs under Articles 15(4) and 16(4).
- Whether the exclusion of the "creamy layer" is required in the context of local‑body reservations.
Legislation cited
- Constitution (Seventy‑fourth) Amendment Act, 1992
- Constitution (Seventy‑third) Amendment Act, 1992
- Karnataka Panchayati Raj Act, 1993s. 123, s. 138, s. 162, s. 177, s. 44, s. 5
- Representation of the People Act, 1951
- Uttar Pradesh Kshetra Panchayat and Zilla Panchayat Act, 1961s. 18A, s. 19A, s. 6A, s. 7A
- Uttar Pradesh Panchayat Raj Act, 1947s. 11, s. 12
Subjects
reservationlocal self‑governmentPanchayati Rajaffirmative actionconstitutional validitychairperson reservationbackward classes73rd Amendment74th Amendmentequality clause
Judgment
(2010] 6 S.C.R. 972
A DR. K. KRISHNA MURTHY & ORS.
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 356 of 1994)
MAY 11, 2010
B
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN,
D.K: JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ.]
Constitution of India, 1950 - Constitution (Seventy-third)
c Amendment Act, 1992 - Constitution (Seventy-fourth)
Amendment Act, 1992:
Articles 243-0(4) and 243-T(4) - Elected local self-
government institutions - Reservation of Chairperson posts
under - Constitutional validity of - Held: Is constitutionally
0 valid - Said posts cannot be equated with solitary posts in the
context of public employment - Article 243-0(4) provides a
clear constitutional basis for reserving Chairperson positions
in favour of SC and STs (in proportionate manner) and one-
third of all chairperson positions in each tier of the Panchayati
E Raj Institutions in favour of women.
Articles 243-0(6) and 243-T(6) - Reservations in favour
of backward classes for occupying seats and Chairperson
positions in Panchayat and Municipalities - Constitutional
F validity of - Held: Are constitutionally valid - Provisions
merely enable State Legislatures to reserve seats and
chairperson posts in favour of backward classes - They do
not provide guidance on how to identify backward classes and
neither do they specify any principle for quantum of such
G reservations - Concerns about disproportionate reservations
should be raised by way of specific challenges against the
State Legislations - Karnataka Panchayati Raj Act, 1993 -
Uttar Pradesh Panchayat Raj Act, 1947 - Uttar Pradesh
Kshetra Panchayat and Zilla Panchayat Act, 1961.
H 972
DR. K. KRISHNA MURTHY & ORS. Ii. UNION OF
INDIA &ANR.· .
973 .
Articles 243-0(6) and 243-T(6) - Reservations for OBCs A
under the State Legislations - Claims as regard overbreadth
in quantum of reservation - Held: Cannot be examined since
there is no contemporaneous empirical data - Onus is on
executive to conduct rigorous investigation into the patterns
of backwardness that act as barriers to political participation B
- Aggrieved party can challenge any State legislation enacted
in pursuance to Articles 243-0(6) and 243-T(6) before High
Court.
Articles 243-0(6) and 243-T(6) - Upper ceiling - 50 %
vertical reservations in favour of SC!ST!OBCs - Held: Not to C
be breached in context of local self-government - Exceptions
can only be made in order to safeguard the interests of
Scheduled Tribes in the matter of their representation in
Panchayats located in Scheduled Areas.
D
Articles 243-0(6) and 243-T(6) - Reservations in favour
of backward classes - 'Backward classes' in Articles 243-0(6)
and 243-T(6}, whether co-extensive with the 'socially and
educationally backward classes' (SEBCs) contemplated
under Articles 15(4) and 15(5) or with under-represented E
backward classes as contemplated under Article 16(4)- Held:
Identification of 'backward classes' under Articles 243-0(6)
and 243-T(6) should be distinct from the identification of
SEBCs for the purpose of Article 15(4) and that of backward
classes for the purpose of Article 16 (4) - Social and F
economic backwardness does not necessarily coincide with
political backwardness.
Articles 243-0 and 243-T - Reservations in elected local
self government - Nature and purpose of - Held: Is
considerably different from that of higher education and G
public employment, as contemplated under Articles 15(4) and
16(4) - Articles 243-0 and 243-T form a distinct and
independent constitutional basis for affirmative action and
principles that have been evolved in relation to reservation
H
97 4 SUPREME COURT REPORTS [201 O] 6 S.C.R.
, A policies enabled by Articles 15(4) and 16(4) cannot be readily
applied in the context of local self-government.
A1ticles 243-0 and 243-T - Reservations in local self-
government - Exclusion of 'creamy layer' - Held: There
8 cannot be exclusion of creamy layer in the context of local
self-government - Reservations in local self-government are
intended to directly benefit the community as a whole, 1ather
than just the elected representatives - Exclusion of 'creamy
layer' may be feasible as well as desirable in the context of
C reservations for education and employment.
Right to vote and contest elections - Nature of - Held:
Does not have the status of fundamental rights - They are in
the nature of legal rights which can be controlled through
legislative means - Constitution empowers the Election
D Commission to prepare electoral rolls for identifying the
eligible voters in elections for Lok Sabha and Vidhan Sabha
- Right to vote is not an inherent right and cannot be claimed
in an abstract sense -1951 Act includes grounds that render
persons ineligible from contesting elections - Thus, there is
E no inherent right to contest elections since there are explicit
legislative controls over the same - Representation of the
PEwple Act, 1951.
8y way of the 73rd and 74th Amendments to the
F CC)nstitution of India, 1950, Articles 243-0(4) and 243-T(4)
as well as Articles 243-0(6) and 243-T(6), were inserted.
In the instant writ petition, the petitioner has challenged
the constitutional validity of Article 243-0(6) and Article
243-T(6) of the Constitution of India, 1950 since they
enable reservations in favour of backward classes for the
G purpose of occupying seats and chairperson positions
in Panchayats and Municipalities respectively, and also
Article 243-0(4) and Article 243-T(4) since they enable the
reservation of chairperson positions in Panchayats and
Municipalities respectively.
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 975
INDIA & ANR.
Disposing of the Writ Petition, the Court A
HELD: 1.1 The nature and purpose of reservations
in the context of local self-government is considerably'
diflerent from that of higher education and public
employment. Article 243-D and Article 243-T of the B
Constitution of India, 1950 form a distinct and
independent constitutional basis for affirmative action
and the principles that have been evolved in relation to
the reservation policies enabled by Articles 15(4) and
16(4) cannot be readily applied in the context of local self- C
government. Even when made, they need not be for a
period corresponding to the period of reservation for
purposes of Articles 15(4) and 16(4), but can be much
shorter. [Para 48] [1026-D-G]
1.2. Article 243-D(6) and Article 243-T(6) are D
constitutionally valid since they are in the nature of
provisions which merely enable State Legislatures to
reserve seats and chairperson posts in favour of
backward classes and it would be quite improper to strike
them down as violative of the equality clause. Concerns E
about disproportionate reservations should be raised by
way of specific challenges against the State Legislations.
[Para 48] [1026-G-H; 1027-A]
1.3. The claims about overbreadth in the quantum of
reservations provided for OBCs under the impugned F
State Legislations cannot be examined since there is no
contemporaneous empirical data. The onus is on the
executive to conduct a rigorous investigation into the
patterns of backwardness that act as barriers to political
participation which are indeed quite different from the G
patterns of disadvantages in the matter of access to
education and employment. It will be open to the
petitioners or any aggrieved party to challenge any State
legislation enacted in pursuance of Articles 243-D(6) and
243-T(S) before the High Court. The identification of H
976 SUPREME COURT REPORTS [2010) 6 S.C.R.
A 'backward classes' under Articles 243-0(6) ;tnd 243-T(6)
should be distinct from the identification of 'socially and
eJ ..,cationally backward classes'-SEBCs for the purpose
of Article 15(4) and that of backward classes for the
purpose of Article 16 (4). [Para 48) [1027-B-E]
B
1.4. The upper ceiling of 50% vertical reservations in
favc•1r of SC/ST/OBCs should not be breached in the
ctmtext of local self-government. Exceptions can only be
made in order to safeguard the interests of STs in the
matter of their representation in Panchayats located in the
C Scheduled Areas. [Para 48) [1027-E-F]
1.5. The reservation of chairperson posts in the
m:t11ner contemplated by Articles 243-0(4) and 243-T(4)
is constitutionally valid. These chairperson posts cannot
D be equated with solitary posts in the context of public
employment. [Para 48] [1027-F-G]
2.1. The principles that have been evolved for
conferring the reservation benefits contemplated by
E Articles 15(4) and 16(4) cannot be mechanically applied
in the context of reservations enabled by Articles 243-0
and 243-T. Articles 243-D and 243-T form a distinct and
inffependent constitutional basis for reservations in local
self-government institutions, the nature and purpose of
wluch is different from the reservation policies designed
F to improve access to higher education and public
employment, as contemplated under Articles 15(4) and
1:i(4) respectively. [Para 30) [1013-C-E]
Vinayakrao Gangaramji Deshmukh v. P. C. Agrawal &
G Ors, AIR 1999 Born 142, approved.
2.2. It is partly accepted that the nature of
disadv<.rtages which restrict access to education and
empkyment cannot be readily equated with
H disadva'1tages in the realm of political representation. To
DR. K. KRISHNA MLJRTHY & ORS. v. UNION OF 977
INDIA & ANR.
be sure, backwardness in the social and economic s~nse A
does not necessarily imply political backwardness.
However, the petitioner's emphasis on the distinction
between 'selection' (in case of education and
employment) and 'election' (in case of political
representation) does not adequately reflect the, B
complexities involved. It is undeniable that in determining
who can get access to educatio11 and employment, due
regard must be given to considerations of merit and
efficiency which can be measured in an objective manner.
Hence, admissions to educational institutions anci i~1e c
recruitment to government jobs is ordinarily done through
methods such as examinations, interviews or
assessment of past performance. Since it is felt that
applicants belonging to the SC/ST/OBC catego:-it!S
among others are at a disadvantage when they comµ9t~ D
through these methods, a level-playihg field is sougir(i.o
be created by way of conferring reservation benefits.
[Para 31) [1014-C-G]
2.3. In the domain of political participation, there can
be no objective parameters to determine who is more E
likely to get e.lected tot;~ r.esenta1~lv~ inst·i.tu. . !!<>ns ~t ~ny
level. The choices of vo · s are not guided by'an obJet;tlve
assessment of a candi ate's merit and efficiency. lnstel\!d,
. they are shaped by subjective factors such as the
' candidate's ability to canvass support, past service F
record, professed ideology and affiliations to organised
groups among others. It is quite possible that candidates
belonging to the SC/ST/OBC categories could
demonstrate these subjective qualities and win elections
against candidates from the relatively better-off groups. G
However, such a scenario cannot be presumed in all
circumstances. It is quite conceivable that in some
localized· settings, ·backwardness in th-e social and
economic sense can also act as a barrier to effective
political participation and representation. When it comes H
978 SUPREME COURT REPORTS [2010] 6 S.C.R.
A to creating a level-playing field for the purpose of
elections to local bodies, backwardness in the social and
economic sense can indeed be one of the criteria for
conferring reservation benefits. [Para 32) [1014-H;
1015-A-D]
B
2.4. There is an inherent difference between the
nature of benefits that accrue from access to education
and employment on one hand and political
representation at the grassroots level on the other hand.
While access to higher education and public employment
C increases the likelihood of the socio-economic upliftment
of the individual beneficiaries, participation in local-self
government is intended as a more immediate measure of
empowerment for the community that the elected
representative belongs to. The objectives of democratic
D decentralisation are not only to bring governance closer
to the people, but also to make it more participatory,
inclusive and accountable to the weaker sections of
society. In this sense, reservations in local self-
ge1vernment are intended to directly benefit the
E community as a whole, rather than just the elected
representatives. Thus, there cannot be an exclusion of
the 'creamy layer' in the context of political representation.
There are bound to be disparities in the socio-economic
status of persons within the groups that are the intended
F beneficiaries of reservation policies. While the exclusion
of the 'creamy layer' may be feasible as well as desirable
in the context of reservations for education and
employment, the same principle cannot be extended to
the context of local self-government. At the level of
G panchayats, the empowerment of the elected individual
is only a means for pursuing the larger end of advancing
the interests of weaker sections. Hence, it would be
counter-intuitive to exclude the relatively better-off
persons among the intended beneficiaries from the
H reservation benefits that are designed to ensure diversity
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 979
INDIA & ANR.
in the composition of local bodies. It is quite likely that A
such persons may be better equipped to represent and
protect the interests of their respective communities.
[Para 33] (1015-0-H; 1016-A-C]
3.1. Articles 243-0(6) and 243-T(6) do not provide
B
guidance on how to identify the backward classes and
neither do they specify any principle for the quantum of
such reservations. Instead, discretion has been conferred
on State Legislatures to design and confer reservation
benefits in favour of backward classes. It is but 'latural
that questions will arise in respect of the exerc!se \lf a C
discretionary power. [Para 34] (1016-E-F]
3.2. There is no doubt that excessive and
disproportionate reservations provided by State
legislations can indeed be the subject-matter of specific D
challenges before the Courts. However, the same does
not justify the striking down of Articles 243-0(6) and 243-
T(6) which are Constitutional provisions that enable
reservations in favour of backward classes in the first
place. As far as the challenge against the various State E
legislations is concerned, no adequate materials is
provided nor argumentation that could help to make a
decision about the same. The identification of backw:.rd
classes for the purpose of reservations is an executive
function and as per the mandate of Article 340, dedicated F
commissions need to be appointed to conduct a rigorous
empirical inquiry into the nature and implications of
' backwardness. It is also incumbent upon the executive
to ensure that reservation policies are reviewed from time
to time so as to guard against overbreadth. In respect of G
the objections against the Karnataka Panchayati Raj Act,
1993, the Chinnappa Reddy_ Commission Report (1990)
is referred to which reflects the position as it existed
twenty years ago. In the absence of updated empirical
data, it is well nigh impossible for the Courts to decide
H
980 SUPREME COURT REPORTS [2010) 6 S.C.R.
A whether the reservations in favour of OBC groups are
proportionate are not. Similarly, in the case .of the State
of Uttar Pradesh, the claims about the extent of the OBC
population are based on the 1991 census. The petitioners
are at liberty to raise specific challenges against the State
B legislations if they can point out flaws in the identification
of backward classes with the help of updated empirical
data. [Para 35] [1017-B-H]
3.3. The social and economic backwardness does
not necessarily coincide with political backwardness. In
C the said respect, the State Governments are well advised
to reconfigure their reservation policies, wherein the
beneficiaries under Articles 243-0(6) and 243-T(6) need
not necessarily be co-terminus with the Socially and
Educationally Backward Classes (SEBCs) [for the
D purpose of Article 15(4)] or even the Backward .classes
that are under-represented in government jobs [for the
purpose of Article 16(4)]. It would be safe to say that not
all of the groups which have been given reservation
benefits in the domain of education and employment
E need reservations in the sphere of local self-government.
This is because the barriers to political participation are
not of the same character as barriers that limit access to
education and employment. This calls for some fresh
thinking and policy-making with regard to reservations in
F local self-government. [Para 36] [1018-A-D]
3.4. In the absence of explicit constitutional guidance
as to the quantum of reservation in favour of backward
classes in local self-government, the rule of thumb is that
of proportionate reservation. However, stress must be
G laid on the fact that the upper ceiling of 50% (quantitative
limitation) with respect to vertical reservations in favour
of SC/ST/OBCs should not be breached. On the question
of breaching this upper ceiling, the arguments made by
the petitioners were a little misconceived since they had
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 981
INDIA &ANR.
accounted for vertical reservations in favour of SC/ST/ A
OBCs as well as horizontal reservations in favour of
women to assert that the 50% ceiling had been breached
in some of the States. This was clearly a
misunderstanding of the position since the horizontal
reservations in favour of women are meant to intersect B
with the vertical reservations in favour of SC/ST/OBC,
since one-third of the seats reserved for the latter
categories are to be reserved for women belonging to the
same. This means that seats earmarked for women
belonging to the general category are not accounted for c
if one has to gauge whether the upper ceiling of 50% has
been breached. [Para 37] [1018-D-H]
Indra Sawhney v. Union of India 1992 Supp 3 SCC 217,
referred to.
D
3.5. Reservations in excess of 50% does exist in
some exceptional cases, when it comes to the domain of
political representation. The Legislative Assemblies of the
States of Arunachal Pradesh, Nagaland, Meghalaya,
Mizoram and Sikkim have reservations that are far in E
excess of the 50% limit. However, such a position is the
outcome of exceptional considerations in relation to
these areas. Similarly, vertical reservations in excess of
50% are permissible in the composition of local self-
government institutions located in the Fifth Schedule
F
Areas. However, such exceptional considerations cannot
be invoked when the quantum of reservations is
examined in favour of backward classes for the purpose
of local bodies located in general areas. In such
circumstances, the vertical reservations in favour of SC/ G
STIOBCs cannot exceed the upper limit of 50% when
taken together. It is obvious that in order to adhere to this ·
upper ceiling, some of the States may have to modify
their legislations so as to reduce the quantum of the
existing quotas in favour of OBCs. [Para 39] [1019-f=-H;
1020-A-C] . H
982 SUPREME COURT REPORTS [2010) 6 S.C.R.
A Union of India v. Rakesh Kumar (2010) 1 SCALE 281,
referred to.
4.1. Article 243-0(4) provides a clear Constitutional
basis for reserving the Chairperson positions in favour
of SC and STs (in a proportionate manner) while also
8
providing that one-third of all chairperson positions in
each tier of the Panchayati Raj Institutions would be
reserved in favour of women. The considerations behind
the provisions of Article 243-0 cannot be readily
C compared with those of Article 16(4) which is the basis
for reservations in public employment. In the domain of
service law that single posts cannot be reserved under
the scheme of Article 16(4). The Chairperson position
should not be viewed as solitary seats by themselves for
the purpose of reservation. Instead, the frame of
D reference is the entire pool of Chairperson position in
each tier of the three levels of Panchayati Raj Institutions
in the entire State. Out of this pool of seats which is
computed across panchayats in the whole state, the
number of offices that are to be reserved in favour of
E Scheduled Castes and Scheduled Tribes is to be
determined on the basis of the proportion between the
population belonging to these categories and the total
population of the State. This interpretation is clearly
supported by a bare reading of the first proviso to Article
F 243-0(4). [Para 40) [1020-E-H; 1021-A-C)
Janardhan Paswan v. State of Bihar, AIR 1988 Pat 75;
Krishna Kumar Mishra v. State of Bihar AIR 1996 Pat 112,
referred to.
G 4.2. When the frame of reference is the entire pool of
chairperson positions computed across each tier of
Panchayati Raj institutions in the entire state, the
possibility of cent-per-cent reservation does not arise. For
this purpose, a loose analogy can be drawn with
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 983
INDIA & ANR.
reservations in favour of Scheduled Castes and A
Scheduled Tribes for the purpose of elections to the Lok
Sabha and the respective Vidhan Sabhas. Before
elections to these bodies, the Election Commission
earmarks some electoral constituencies as those which
are reserved for candidates belonging to the SC/ST B
categories. For the purpose of these reservations, the
frame of reference is the total number of Lok Sabha or
Vidhan Sabha seats in a State and not the single position
of an MP or MLA respectively. Regarding the Chairperson
positions in Panchayats, it is therefore permissible to c
reserve a certain number of these offices in favour of
Scheduled Castes, Scheduled Tribes and women,
provided that the same is done in accordance with the
provisos to Article 243-0(4). [Para 41) [1021-H; 1022-A-D]
4.3. In the case of urban local bodies, Article 243-T(4) D
also enables reservation of chairperson posts in favour
of Scheduled Castes, Scheduled Tribes and women.
However, there are no further specifications to guide the
reservation of chairperson positions in urban areas.
While it is not possible to ascertain the legislative intent E
behind the same, one can perhaps theorise that there
was an assumption that the intended beneficiaries are in
a relatively better-off position to overcome barriers to
political participation in urban local bodies, when
compared with rural local bodies. [Para 42) [1022-E-F] F
4.4. It was also submitted that since chairpersons of
Panchayats and Municipalities are entrusted with
executive powers, reserving these posts could prove to
be the precursor for reservations of executive offices at G
higher levels of government. It was even suggested that
the reservation of chairperson posts was akin to
reserving the posts of Chief Minister and Prime Minister
at the State an_d National level, respectively. This analogy
with the higher levels of government is misplaced. The H
984 SUPREME COURT REPORTS [2010] 6 S.C.R.
A offices of chairpersons in Panchayats and Municipalities
are reserved as a measure of protective discrimination,
so as to enable the weaker sections to assert their voice
against entrenched interests at the local level. The
patterns of disadvantage and discrimination faced by
B persons belonging to the weaker sections are more
pervasive at the local level. Unlike elected representatives
in the Lok Sabha and the Vidhan Sabha who can fall
back on the support of mainstream political parties as
well as media scrutiny as a safeguard against
c marginalization and unjust discrimination, elected
representatives from the disadvantaged sections may
have no such support-structures at the local level. In the
said respect, the Union Parliament thought it fit to enable
reservations of Chairperson positions in order to ensure
that not only are the weaker sections adequately
0
represented in the domain of local self-government, but
that they also get a chance to play leadership roles. [Para
43) [1022-G-H; 1023-A-D]
4.5. While the exercise of electoral franchise is an
E essential component of a liberal democracy, it is a well-
settled principle in Indian law, that the right to vote and
contest elections does not have the status of
fundamental rights. Instead, they are in the nature of legal
rights which can be controlled through legislative means.
F The Constitution empowers the Election Commission of
India to prepare electoral rol!s for the purpose of
identifying the eligible voters in elections for the Lok
Sabha and the Vidhan Sabha. This suggests that the
right to vote is not an inherent right and it cannot be
G claimed in an abstract sense. Furthermore, the
Representation of People Act, 1951 gives effect to the
Constitutional guidance on the eligibility of persons to
contest elections. This includes grounds that render
persons ineligible from contesting elections such as that
H of a person not being a citizen of India, a person being
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 985
INDIA & ANR.
of unsound mind, insolvency and the holding of an 'office A
of profit' under the executive among others. Thus, there
is no inherent right to contest elections since there are
explicit legislative controls over the same. [Para 45] [1024-
G-H; 1025-A-B]
B
Mohan Lal Tripathi v. District Magistrate, Rai Bareil/y,
(1992) 4 sec 80, referred to
4.6. It cannot be accepted that in view of the standard
of reasonableness, .fairness and non-discrimination
required of governmental action under Article 21 of the C
Constitution, there is a case for invalidating the
restrictions placed on the rights of political participation
as a consequence of reservations in local self-
government. In the instant case, an affirmative action
measure and hence the test of proportionality is a far D
more appropriate standard for exercising judicial review.
It cannot be denied that the reservation of chairperson
posts in favour of candidates belonging to the Scheduled
Castes, Scheduled Tribes and women does restrict the
rights of political participation of persons from the E
unreserved categories to a certain extent. However, the
test of reasonable classification is met in view of the
legitimate governmental objective of safeguarding the
interests of weaker sections by ensuring their adequate
representation as well as empowerment in local self- F
government institutions. The asymmetries of power
require that the Chairperson should belong to the
disadvantaged community so that the agenda of such
Panchayats is not hijacked for majoritarian reasons. [Para
46] [1025-C-G]
G
4.7. Irrespective of the concerns about the efficacy
of reservations in local self-government, it is not proper
for the judiciary to second-guess a social welfare
measure that has been incorporated by way of a
constitutio.r:ial amendment. [Para 47] [1026-C] l;i
986 SUPREME COURT REPORTS [2010] 6 S.C.R.
A l.R. Coelho v. State Tamil Nadu (2007) 2 SCC 1; His
Holiness Kesavananda Bharati Sripadagalvaru v. State of
Kera/a and Anr. (1973) 4 SCC 225; M.R. Balaji v. State of
Mysore AIR 1963 SC 649; Indra Sawhney v. Union of India
1992 Supp 3 SCC 217; Post Graduate Institute of Medical
B Education and Research v. K.L. Narasimhan (1997) 6 SCC
283; Janardhan Paswan v. State of Bihar AIR 1988 Pat 75;
Krishna Kumar Mishra v. State of Bihar AIR 1996 Pat. 112;
M. Nagaraj v. Union of India (2006) 8 SCC 212; N.P.
Ponnuswamy v. Returning Officer 1952 SCR 218; Jyoti Basu
C v. Debi Ghosal (1982) 1 SCC 691; Mohan Lal Tripathi v.
District Magistrate, Rai Bareilly (1992) 4 SCC 80; Rama Kant
Pandey v. Union of India (1992) 2 SCC 438; Ku/dip Nayar v.
Union of India (2006) 7 SCC 1; Indira Gandhi vs. Raj Narain
1975 Supp SCC 1, referred to.
D Case Law Reference:
(2007) 2 sec 1 Referred to. Para 9
(1973) 4 sec 225 Referred to Para 9
E AIR 1963 SC 649 Referred to Para 13
1992 supp 3 sec 211 Referred to Para 13,26, 38
(1997) 6 sec 283 Referred to. Para 14
AIR 1988 Pat 75 Referred to. Para 19, 40
F
AIR 1996 Pat. 112 Referred to. Para 19, 40
c2oos) a sec 212 Referred to. Para 21
1952 SCR 218 Referred to. Para 21
G Para 21
(1982) 1 sec 691 Referred to.
(1992) 4 sec 80 Referred to. Para 21
(1992) 2 sec 438 Referred to. Para 21
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 987
INDIA & ANR.
(2oos) 1 sec 1 Referred to. Para 21 A
1975 Supp sec 1 Referred to. Para 21
AIR 1999 Born 142 Approved. Para 30
(2010) 1 SCALE 281 Referred to. Para 39 B
(1992) 4 sec 80 Referred to Para 45
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
356 of 1994.
Petition Under Article 32 of the Constitution of India.
c
WITH
W.P. (C) No. 245 of 1995
W.P. (C) No. 517 of 2005
D
Gopal Subramanium, ASG, Uday Holla, Rama Jois,
Salman Khurshid, Rakesh K. Khanna, K. Radhakrishnan,
A.Mariarputharn, R. Shanmugasundaram, Dinesh Dwivedi,
Hetu Arora, Anita Abrahim Dr. Rajeev Dhavan, Shail Kr. E
Dwivedi, AAG, Naveen R. Nath, Lalit Mohini Bhat, Govind
Goyal, lmtiaz Ahmed, Naghma lmtiaz, Dr. Rashmi Khanna, Faizi
Ahmed Sayed, Vinay Kumar Garg, Rekha Pandey,
S.W.A.Qadri, Aman Ahluwalia, D.S. Mahra, B. Krishna Prasad,
Sushma Suri, B.V. Bairam Das, Anil Katiyar, Prashant F
Bhushan, Meenakshi Arora, Jayshree Anand, K.K. Mahalik,
Ajay Pal, A.Subhashini, Vishwajit Singh, Ashok K. Mahajan,
Pramod Dayal, Sumita Hazarika, T. Harish Kumar, R. Ayyam
Perumal, Dinesh Kumar Garg, Aruneshwar Gupta, Anis
Suhrawardy, Hemantika Wahi, Pinky, K. Enatoli Serna, G
Somnath, Janaranjan Das, Swetaketu Mishra, Kamini Jaiswal,
Naresh K. Sharma, Tara Chandra Sharma, Neelam Sharma,
Ajay Sharma, Kishan Datta, Rajeev Sharma, Rupesh Kumar,
S. Thananjayan, Aruna Mathur, Akhilesh Kumar (for Arputham,
Aruna & Co.), Ranjan Mukherjee, V.G. Pragasam, S.J. Aristotle,
H.
988 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Prabhu Ramasubramanian, Sanjay R. Hegde, Vikrant Yadav,
A. Rohen Singh, Amit Kr. Chawla, Riku Sarma, Krishna
Sharma (for Corporate Law Group) Vibha Datta Makhija, P.V.
Dinesh, Niranjana Singh, Abhishek Chaudhary, Prateek
Dwivedi, Manish Srivastava, (for Kamlendra Mishra), Kh. Nobin
B Singh, K.N. Madhusoodhanan, R. Sathish, 8.S. Banthia, Vikas
Upadhyay, Suparna Srivastava (NP), Neeraj Gupta, Ram
Swarup Sharma, Rajesh Srivastava, Manish Kumar Saran,
Nirmal Kumar Ambastha, Gopal Singh, Manish Kumar, Pallavi
for the appearing parties.
c The Judgment of the Court was delivered by
K.G; BALAKRISHNAN, CJI. 1. In these writ petitions, we
are required to examine the constitutional validity of some
aspects of the reservation policy prescribed for the composition
D of elected local self-government institutions. In particular, the
contentions have concentrated on the provisions that enable
reservations in favour of backward classes and those which
contemplate the reservation of chairperson positions in the
elected local self-government institutions. These provisions
E have been challenged as being violative of principles such as
equality and democracy, which are considered to be part of the
'basic structure' doctrine.
2. The Constitution (Seventy-third) Amendment Act, 1992
F [hereinafter '73rd Amendment'] and the Constitution (Seventy-
fourth) Amendment Act, 1992 [hereinafter '74th Amendment']
had inserted Part IX and Part IX-A into the constitutional text
thereby contemplating the powers, composition and functions
of local self-government institutions, i.e. the Panchayats (for rural
areas) and Municipalities (for urban areas). In pursuance of
G objectives such as democratic decentralization, greater
accountability between citizens and the state apparatus as well
as the empowerment of weaker sections, these constitutional
amendments contemplated a hierarchical structure of elected
local bodies. With respect to rural areas, Part IX contemplates
H three tiers of Panchayats, namely those of 'Gram Panchayats' ·
DR K. KRl$HNA MURTHY & ORS. v. UNION OF 989
JNDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
(for each village, or group of small villages), 'Panchayat Samitis' A
(at the block level) and the 'Zilla Parishads' (at the District level).
For urban areas, Part IX-A prescribed the constitution of 'Nagar
Panchayats' (for areas in transition from a rural area to an urban
area), 'Municipal Councils' (for smaller urban areas) and
'Municipal Corporations' (for a larger urban area). B
3. To better appreciate the leg;slative intent,_ it would be
instructive to refer to the following extract from the Statement
-of Objects and Reasons for the '?3rd Amendment:
"1. Though the Panchayati Raj Institutions have been in C
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
number of reasons including absence of regular elections,
prolonged supersessions, insufficient representation of D
weaker sections like Scheduled Castes, Scheduled Tribes
and women, inadequate devolution of powers and lack of
financial resources.
2. Article 40 of the Constitution which enshrines one of the E
Directive Principles of State Policy lays down that the State
shall take steps to organise village panchayats and endow
them with such powers and authority as may be necessary
to enable them to function as units of self-government. In
the light of the experience in the last forty years and in view
F
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
Panchayati Raj Institutions to impart certainty, continuity
and strength to them.
G
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
levels; direct elections to all seats in Panchayats at the H
990 SUPREME COURT REPORTS [2010] 6 S.C.R.
A village and intermediate level, if any, and to the Offices of
Chairpersons of Panchayats at such levels; reservation of
seats for the Scheduled Castes and Scheduled Tribes in
proportion to their population for membership of
Panchayats and office of Chairpersons in Panchayats at
B 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 supersession of any Panchayat; ... "
C In the same vein, we can refer to the following extracts from the
Statement of Objects and Reasons for the 74th Amendment:
"1. In many States, local bodies have become weak and
ineffective on account of a variety of reasons, including the
failure to hold regular elections, prolonged supersessions
D and inadequate devolution of powers and functions. As a
result, Urban Local Bodies are not able to perform
effectively as vibrant democratic units of self-government.
2. Having regard to these inadequacies, it is considered
necessary that provisions relating to Urban Local Bodies
E
are incorporated in the Constitution, particularly for -
(i) putting on a firmer footing the relationship between the
State Government and the Urban Local Bodies with
respect to -
F
(a) the functions and taxation powers; and
(b) arrangements for revenue sharing
(ii) ensuring regular conduct of elections;
G
(iii) ensuring timely elections in the case of supersession;
and
(iv) providing adequate representation for the weaker
sections like Scheduled Castes, Scheduled Tribes and
H women.
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 991
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
3, Accordingly, it is proposed to add a new Part relating A
to the Urban Local Bodies in the Constitution to provide
for-
(a) constitution of three types of Muncipalities:
(i) Nagar Panchayats for areas in transition from a B
rural area to urban area
(ii) Municipal Councils for smaller urban areas;
(iii) Municipal Corporations for larger urban areas: C
(e) reservation of seats in every Municipality -
•
(i) for Scheduled Castes and Scheduled Tribes in
0
proportion to their population of which not less than
one-third shall be for women; ... "
4. Before outlining and addressing the contentions
advanced on behalf of the petitioners and the respondents, it
will be useful to survey the constitutional provisions that have E
been called into question. The rival contentions relate to Article
243-0(4) and 243-T(4) which contemplate the reservation of
chairperson posts, as well as Article 243-0(6) and 243-T(6)
which enable reservations in favour of backward classes. With
respect to the reservation of seats in Panchayats, Article 243- F
D reads as follows: -
243-D. Reservation of Seats. - (1) Seats shall be reserved
for-
(a) The Scheduled Castes; and G
(b) The Scheduled Tribes,
in every Panchayat and the number of seats so reserved
shall bear, as nearly as may be, the same proportion to
H
992 SUPREME COURT REPORTS [2010) 6 S.C.R.
A 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
and such seats may be allotted by rotation to different
B 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
belonging to the Scheduled Castes or, as the case may
be, the Scheduled Tribes.
c
(3) Not less than one-third (including the number of seats
reserved for women belonging to the Scheduled Castes
and the Scheduled Tribes) of !he total number of seats to
be filled by direct election in every Panchayat shall be
D 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
th:J village or any other level shall be reserved for the
Scheduled Castes, the Scheduled Tribes and women in
E
such manner as the Legislature of a State may, by law,
provide:
Provided that the number of offices of Chairpersons
reserved for the Scheduled Castes and the Scheduled
F 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 of the Scheduled Castes in the State or of
the Scheduled Tribes in the State bears to the total
G population of the State:
Provided further that not less than one-third of the
total number of offices of Chairpersons in the Panchayats
at each level shall be reserved for women:
H Provided also that the number of offices reserved under
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 993
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
this clause shall be allotted by rotation to different A
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 B
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
in any Panchayat or offices of Chairpersons in the C
Panchayats at any level in favour of backward class of
citizens.
(emphasis supplied)
· Similarly, the composition of Municipalities is guided by the D
reservation policy contemplated in Article 243-T:
243-T. Reservation of seats. - (1) Seats shall be reserved
for the Scheduled Castes and the Scheduled Tribes in
every Municipality and the number of seats so reserved E
shall bear, as nearly as may be, the same proportion to
the total number of seats to be filled by direct election in
that Municipality as the population of the Scheduled
Castes in the Municipal area or of the Scheduled Tribes
in the Municipal area bears to the total population of that F
area and such seats may be allotted by rotation to different
constituencies in a Municipality.
(2) Not less than one-third of the total number of seats
reserved under clause (1) shall be reserved for women
belonging to the Scheduled Castes or as the case may G
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 H
994 SUPREME COURT REPORTS [2010] 6 S.C.R.
-~
A be filled by direct election in every Municipality shall be
reserved for women and such seats may be allotted by
rotation to different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall
B be reserved for the Scheduled Castes, the Scheduled
Tribes and women in such manner as the Legislature of a
State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2) and
the reservation of offices of Chairpersons (other than the
c reservation for women) under clause (4) shall cease to
have effect on the expiration of the period specified in
Article 334.
(6) Nothing in this Part shall prevent the Legislature of a
D State from making any provision for reservation of seats
in any Municipality or offices of Chairpersons in the
Municipalities in favour of backward class of citizens.
(emphasis supplied)
E 5. The overarching scheme of Article 243-D and 243-T is
to ensure the fair representation of social diversity in the
composition of elected local bodies so as to contribute to the
empowerment of the traditionally weaker sections in society.
The preferred means for pursuing this policy is the reservation
F of seats and chairperson positions in favour of Scheduled
Castes (SC), Scheduled Tribes (ST), women and backward
class candidates.
Article 243-0(1) and Article 243-T(1) are
analogous since they lay down that the reservation
G
of seats in favour of SC and ST candidates should
be based on the proportion between the population
belonging to these categories and the total
population of the area in question. Needless to say,
the State Governments are empowered to
H determine the extent of such reservations on the
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 995
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
basis of empirical data such as population surveys A
among other methods, thereby being guided by the
principle of 'proportionate representation'.
Article 243-0(2) and Article 243-T(2) further provide
that from among the pool of seats reserved for SC
8
and ST candidates, at least one-third of such seats
should be reserved for women belonging to those
categories. Hence, there is an intersection between
the reservations in favour of women on one hand
and those in favour of SC/STs on the other hand.
c
With respect to reservations in favour of women,
Article 243-0(3) and Article 243-T(3) lay down that
at least one-third of the total number of seats in the
local bodies should be reserved for women. On the
face of it, this is an embodiment of the p1 inciple of D
'adequate representation'. This idea comes into
play when it is found that a particular section is
inadequately represented in a certain domain and
a specific threshold is provided to ensure that this
section of the population comes to be adequately E
represented with the passage of time.
With regard to chairperson positions, Article 243-
0(4) and Article 243-T(4) enable State legislatures
to reserve these offices in favour of SC, ST and
women candidates. In the case of panchayats, the F
first proviso to Article 243-0(4) states that the
aggregate number of chairperson positions
reserved in favour of SC and ST candidates in an
entire state should be based on the proportion
between the population belonging to these G
categories and the total population. With all the
chairperson positions at each level of the
panchayats in an entire State as the frame of
reference, the second proviso to Article 243-0(4)
states that one-third of these offices should be H
996 SUPREME COURT REPORTS [2010] 6 S.C.R.
A reserved for women. The third proviso to Article
243-0(4) lays down that the number of chairperson
positions reserved under the said clause would be
allotted by rotation to different panchayats in each
tier. This rotational policy is a safeguard against the
B possibility of a particular office being reserved in
perpetuity. It is pertinent to note that unlike the
reservation policy for panchayats, there are no
comparable provisos to Article 243-T(4) for guiding
the reservation of chairperson positions in
Municipalities. This is a notable distinction between
c the otherwise analogous schemes prescribed in
Article 243-0 and Article 243-T.
It is also pertinent to take note of Article 243-0(5)
and Article 243-T(5), poth of which provide that the
0 reservation of seats and chairperson positions in
favour of SC and ST categories would operate for
the period contemplated under Article 334. It must
be stressed here that there is no such time-limit for
the reservations made in favour of women, implying
E that they will operate in perpetuity.
Article 243-0(6) and Article 243-T(6} contemplate
the power of State Legislatures to reserve seats as
well as chairperson positions in favour of a
'backward class of citizens'. Unlike the fore-
F
mentioned provisions that deal with reservations in
favour of SC, ST and women candidates, Article
243-0(6) and Article 243-T(6) do not explicitly
provide guidance on the quantum of reservations.
In the absence of any explicit criteria or limits, it can
G
be assumed that reservation policies contemplated
under Article 243-0(6) will ordinarily be guided by
the standard of proportionate representation.
6. In light of the submissions that have been paraphrased
H in the subsequent paragraphs, the contentious issues in this
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 997
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
case can be framed in the following manner: A
(i). Whether Article 243-0(6) and Article 243-T(6) are
constitutionally valid ·since they enable reservations in
favour of backward classes for the purpose of occupying
seats and ch2irperson positions in Panchayats and B
Municipalities r ;spectively?
(ii). Whether Article 243-0(4) and Article 243-T(4) are
constitutionally valid since they enable the reservation of
chairperson positions in Panchayats and Municipalities
respectively? c
SUBMISSIONS MADE ON BEHALF OF THE
PETITIONERS
7. In W.P. (C) No. 356/1994, Shri M. Rama Jois, learned
senior counsel appearing on behalf of the petitioners had D
initially challenged the constitutionality of Clauses (2) to (6) of
Art. 243-D as well as Clauses (2)-(6) of Art. 243-T. These were
challenged in conjunction with some provisions of the Karnataka
Panchayati Raj Act, 1993 which provided for the reservation
of seats and chairperson posts in favour of SCs, STs, women E
and backward classes. The impugned sections of that statute
reserved 15% of the seats in Panchayats in favour of SCs, 3%
in favour of STs, 33% in favour of women and 33% in favour of
other backward classes [Section 5 for Gram Panchayats,
Section 123 for Taluk Panchayats and Section 162 for Zilla F
Panchayats]. Chairperson positions in Panchayats were
reserved in a similar proportion, with the entire pool of
chairperson posts in the State as the frame of reference
[SecNon 44 for Gram Panchayats, Section 138 for Taluk
Panchayats and Section 177 for Zilla Panchayats]. G
Subsequently, the scope of the challenge was enlarged to
question the reservation of seats and chairperson posts in
favour of women and backward classes under the Karnataka
Municipalities Act, 1964 (Sections 11, 14(2)(A) and 352(5) of
the said Act] and the Karnataka Municipal Corporations Act, H
998 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 1976 [Section 7 and 10 of the said Act].
8. The petitioners did not object to the proportionate
reservation of seats in favour of Scheduled Castes and
Scheduled Tribes, as contemplated by Art. 243-0(1) and 243-
B T(1) respectively. It was stated that reservations in favour of SC/
STs were consistent with the intent of the framers of the
Constitution, since reservations in favour of these groups had
been provided in respect of the composition of the Lok Sabha
and the State Legislative Assemblies (under Art. 330 and 332).
C However, the petitioners raised strong objections against the
other aspects of the reservation policy contemplated under
Articles 243-0 and 243-T. Initially, they had assailed the
reservation of seats in favour of women, which has been
enabled by Art. 243-0(2) and (3) with respect to rural local
bodies, and by Art. 243-T(2) and (3) with respect to urban local
0 bodies. However, this challenge was given up during the course
of the arguments before this Court and the thrust of the
petitioner's arguments was directed towards the following two
aspects:
E Firstly, objections were raised against Art. 243-0(6)
and Art. 243-T(6) since they enable reservations of
seats and chairperson posts in favour of backward
classes, without any guidance on how to identify
these beneficiaries and the quantum of
F reservations.
Secondly, it was argued that the reservation of
chairperson posts in the manner contemplated
under Art. 243-0(4) and 243-T(4) is
unconstitutional, irrespective of whether these
G reservations are implemented on a rotational basis
and irrespective of whether the beneficiaries are
SCs, STs and women. The objection was directed
against the very principle of reserving chairperson
posts in elected local bodies.
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 999
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.)
9. The common thread running across the petitioners' A
arguments was that these provisions which were inserted into
the Ccnstitution by way of the 73rd and 74th Amendments, are
violative of principles such as equality, democracy and fraternity,
which are part of the 'basic structure' doctrine. The decision in
l.R. Coelho v. State Tamil Nadu [(2007) 2 SCC 1] had clarified B
that the constitutional amendments which have been placed in
the Ninth Schedule after the Keshavananda Bharati decision
[(1973) 4 sec 225] are not immune from judicial review. Even
though there is some uncertainty as to whether constitutional
amendments can be scrutinized with respect to the fundamental .C
rights enumerated in Part 111, there is no obstruction to their
scrutiny on the basis of principles such as equality, democracy
and fraternity, since all of them find a place in the Preamble to
our Constitution. Since the petitioner has given up the challenge
against the reservation of seats in favour of women, it will not
0
be necessary to paraphrase the submissions related to that
aspect.
10. It was urged that the reservation policy contained in the
Karnataka Panchayati Raj Act, 1993 provides for the aggregate
reservation of nearly 84% of the seats in Panchayats, which is E
excessive and violative of the equality clause. Especially with
regard to reservations in favour of backward classes, it was
argued that the same does not meet the test of 'reasonable
classification', thereby falling foul of Article 14. Pointing to the
caste groups which have been listed as Other Backward F
Classes (OBCs) in the State of Karnataka, it was reasoned
that even if they are assumed to be backward in the socio-
economic sense, there was ample evidence that they were
already well represented in the political space. In fact, the
findings of the Chinappa Reddy Commission Report (1990) G
showed that a majority of the Members of Parliament (MPs)
and the Members of the Legislative Assembly (MLAs) elected
from Karnataka belonged to the OBC category. In such a
scenario, there was no intelligible criterion to identify OBCs for
preferential treatment by way of reservations. An analogy was H
1000 SUPREME COURT REPORTS [2010] 6 S.C.R.
A drawn with reservations for government jobs under Article 16(4),
which presupposes backwardness as well as the inadequate
representation of the beneficiary group.
11. Next, it was urged that the reservations in favour of
OBCs were solely on the grounds of caste, thereby violating
8
the anti-discrimination clause found in Article 15 of the
Constitution. It was further suggested that reservations in favour
of the already well represented OBC groups would not serve
the stated objective of empowering the weaker sections in
society. Shri M. Rama Jois, learned senior counsel drew a
C distinction between the context of reservations in the matter of
elections on one hand and in the matter of educ;a;ion and
employment on the other hand. It was reasoned that persons
belonging to Socially and Educationally Backward
Communities (SEBCs) [in respect of Article 15(4) and 16(5)]
D and under-represented Backward Classes [in respect of Article
16(4)] are legitimately given reservations since they are in a
disadvantageous position when they compete for selection to
educational courses and government jobs, respectively. This
disadvantage is linked to backwardness in the social· and
E economic sense, owing to which persons belonging to these
groups may not have the resources or the awareness needed
to gain access to higher education or public employment.
However, the fact of social and economic backwardness does
not necessarily act as a barrier to political participation.
F Stressing on the distinction between 'selection' and election',
Shri Jois contended that the OBCs did not need re::;ervation
benefits because empirical findings suggested that there was
already a high degree of political mobilization among them.
Apart from the fact that OBCs appear to be well-represented
G in the legislature, it was argued that economic backwardness
should not be conflated with political backwardness. This is so
because in the electoral arena, a candidate from a poorer
background is not necessarily at a disadvantage when
competing with candidates from relatively richer backgrounds.
H
-.
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1001
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
12. It was also contended that reserving seats and A
chairperson posts in favour of OBCs was an unjustified
departure from the intent of the framers of the Constitution. As
noted earlier, the framers conferred reservation benefits on SCs
and STs for the purpose of elections to the Lok Sabha and the
State Legislative Assemblies (under Arts. 330 and 332) which 8
are time-bound in accordance with Article 334. Given this
background, the petitioners contend that the framers had
incorporated these measures in the nature of compensatory
discrimination to address the historical disadvantage faced by
SCs and STs. However, it could not be assumed that OBCs c
had suffered a comparable degree of disadvantage, especially
since there were no cogent empirical findings about the
prevalence of backwardness and that there were no specific
recommendations for reservations in favour of backward
classes, as contemplated under Article 340 of the Constitution. D
It was urged that since the framers had not explicitly provided
for OBC reservations in 1950, it was untenable to introduce
them by way of constitutional amendments in 1993.
13. Another set of concerns touched on the overbreadth
in the identification of OBCs for the purpose of the reservations E
conferred by the impugned State legislations. It was contended
that even among the listed OBC groups, one cannot assume
the s3me degree of backwardness for the entire group. There
are bound to be some sub-sections within these groups which
are in a relatively better-off situation. However, the reservations F
enabled by Art. 243-0(6) and Art. 243-T(6) do not contemplate
the exclusion of the :creamy layer' in the manner that has been
prescribed for reservatjons in the context of higher education
[under Arts. 15(4) and 15(~)] and public employment [under Art.
16(4), (4A) and (48)] resp·ectively. The non-exclusion of the G •·
'
crenmy l8yer creates the apprehension that the benefits will be
correred by a limited section of the intended beneficiaries,
th8rGl:;y frustrating the objectives of the reservation policy in the
fir£-t pl.ace. We were also alerted to the possibility that State
Governments could confer reservation benefits in favour of H
1002 SUPREME COURT REPORTS [2010] 6 S.(}.R.
A particular OBC groups as a means of garnering political
support from these groups, instead of ameliorating
backwardness in the social and economic sense. In support of
this contention, it was pointed out that the Karnataka Panchayati
Raj Act had provided for reservations that were in excess of
B the 50% upper ceiling prescribed for communal reservations
in past judicial decisions. [See: M. R. Balaji v. State of Mysore,
AIR 1963 SC 649; Indra Sawhney v. Union of India, 1992 Supp
3 sec 2171
14. With respect to Chairperson positions in the elected
C local bodies, it was argued that they were in the nature of single
posts and reserving them amounted to cent-per-cent
reservation, thereby offending the equality clause. The objection
was against the very principle of reserving chairperson posts,
irrespective of the identity of the beneficiaries and even when
D such posts are reserved by way of rotation. This argument was
buttressed with references to past decisions which have struck
down the reservations of single posts in the context of public
employment [See: Post Graduate Institute of Medical
Education and Research V K. L. Narasimhan, (1997) 6 SCC
E 283]. It was further argued that the chairperson positions in the
Panchayats and Municipalities were executive offices and
reserving them would set a dangerous precedent that could
ultimately lead to the reservation of executive offices at higher
levels of government. It was urged those who occupy the
F reserved chairperson posts are more likely to cater to the
narrow interests of their own groups rather than working for the
welfare of the entire local community.
15. After his extensive arguments which invoked the
G equality clause, Shri M. Rama Jois turned our attention to
arguments invoking the principle of democracy. It was argued
that excessive reservations placed unfair limitations on the
rights of political participation of persons belonging to the
unreserved categories. In particular, the reservation of seats
and chairperson positions curtailed the right to vote, the right
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1003
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
to sponsor candidates of one's choice and the right to contest A
elections among other aspects. It was contended that such
restrictions were in conflict with the principle of 'universal adult
franchise' (under Art. 326) which also entails that as far as
possible, there should be parity in the weightage given to the
votes cast by each individual. In this sense, reservations tend B
to distort the electoral process by giving more weightage to the
voters and candidates from the beneficiary groups as opposed
to those from the general category. With regard to reservations
of chairperson posts, the petitioners have described a scenario
wherein ti1ere may be very few persons from the reserved c
category in a particular village, thereby forcing voters to re-elect
candidates belonging to the reserved categories despite
dissatisfaction with their performance.
16. Lastly, Shri M. Rama Jois argued that reservations in
the electoral arena would only lead to more divisiveness at the D
level of the local community as well as at the national level. In
the long run, reservations designed on caste lines are likely to
become instruments of political favouritism, thereby fanning
resentment among the people. This would clearly come into
conflict with the preambular objective of promoting a sense of E
fraternity among the citizens. In the petitioner's submissions, it
has been reasoned that the objective of empowering the
weaker sections through political participation will be better
served if a larger number of candidates belonging to these
sections were nominated by political parties to stand for F
elections. Based on these submissions, the petitioners in W.P.
(C) No. 356/1994 have prayed for the striking down of Articles
243-0(4) and 243-T(4) since they enable reservations of
chairperson posts in elected local bodies, as well as Articles
243-0(6) and 243-T(6) which enable reservation of seats and G
chairperson posts in favour of backward classes. In relation to
the same, the petitioners have also sought the invalidation of
the impugned State legislations, in so far as they provide for
excessive reservation in favour of backward classes and the
reservation of chairperson posts. H
1004 SUPREME COURT REPORTS [201 O] 6 S.C.R.
A 17. In W.P. 517/2005, Shri Salman Khurshid, learned
senior counsel appearing on behalf of the petitioners has
confined their contentions to two aspects. With regard to
reservations in favour of OBCs in the State of Uttar Pradesh, it
has been contended that the aggregate reservations should not
B exceed the upper ceiling of 50%. There is no challenge to the
constitutional validity of Article 243-0(6) and Article 243-T(6)
since they are merely enabling provisions However, there is a
concurrence between the petitioners in respect of their
objections against the reservation of chairperson posts in
c elected local bodies. Hence the petitioners in W.P. (C) No. 517/
2005 have also contested the constitutional validity of Article
243-0(4) and Article 243-T(4).
18. The specific challenge is directed against Sections
11 A and 12 of the Uttar Pradesh Panchayat Raj Act, 1947 read
0 with the relevant rules as well as Sections 6A, 7A, 18A and 19A
of the Uttar Pradesh Kshetra Panchayat and Zilla Panchayat
Act, 1961 read with the relevant rules. The grievance is directed
against the fact that under these State Legislations, 27% of the
seats in panchayats have been reserved for OBCs even though
E empirical data indicates that nearly 59% of the entire population
of the State of Uttar Pradesh belongs to the OBC category. It
has been contended that this is a clear case of excessive
reservations in favour of a community that is already in a
, majority. Akin to the arguments made in respect of the State
F of Karnataka, this argument can be reasonably developed to
argue that there is no need for reserving seats in elected local
bodies for communities that are already well represented in the
political space and do not face serious hurdles in respect of
political participation. Furthermore, it was contended that there
G was no provision for the exclusion of the 'creamy layer' in
respect of the reservations for OBCs in panchayats. In this
respect, Shri Salman Khurshid stressed on the need for the
s.tate legislations to be modified in order to ensure that the
upper ceiling of 50% reservations was not breached. It was
H argued that reservation policies should be either in the nature
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1005
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
of compensatory discrimination to address historical injustices A
or in the nature of protective discrimination to protect weaker
sections. However, they should not be allowed to become
instr.Jments of reverse discrimination which curtail the rights of
persons who do not belong to the reserved categories.
B
19. However, the main objection was directed against the
very principle of reserving chairperson posts, irrespective of
whether it is in favour of SCs, STs, women or OBCs. By
drawing an analogy with solitary posts in public employment, it
was argued that Art. 243-0(4) and Art. 243-T(4) come into C
conflict with Art. 16(4) since the latter did not contemplate
reservations of single posts. With regard to the aims and
objectives of local self-government, it was contended that the
reservation of chairperson posts placed undue restrictions on
the rights of candidates belonging to the general category. It
was reasoned that unlike candidates in elections to the Lok D
Sabha and the State Legislative Assemblies who are free to
contest from different constituencies, candidates in elections
for local bodies will not ordinarily contest in areas other than
those where they are registered as voters. If such migration
were to frequently take place, then that would defeat the E
objectives of local self-government since the overarching
objective is to empower elected representatives who are
sufficiently interested in the welfare of local communities and
are accountable to them. Hence, the reservation of chairperson
posts in panchayats can have the effect of unduly preventing F
persons belonging to the unreserved categories from
contesting these elections. In support of their contentions, the
petitioners have cited some High Court decisions which have
struck down the reservation of chairperson posts i.n panchayats,
namely those reported as Janardhan Paswan v. State of Bihar, G
AIR 1988 Pat 75 and Krishna Kumar Mishra v. State of Bihar,
AIR 1996 Pat. 112.
20. It was contended that the 'reverse discrimination' which
takes place in the context of reservations in local self-
H
1006 SUPREME COURT REPORTS [2010) 6 S.C.R.
A government is of a higher degree than what transpires in case
of education and employment. It was reasoned that in respect
of admission to educational institutions and recruitment to
government jobs, the meritorious candidates who are displaced
by reservations at least have alternatives available to them.
B However, such alternatives are not open to those who want to
contest elections to become members of Panchayats in the
areas where they reside. In the petitioners' view, this is not only
an unfair limitation on the rights of persons belonging to the
general category, but also a measure that frustrates the pursuit
c of democratic decentralization.
21. Shri Salman Khurshid, further submitted that the courts
have to strive for a balance between the often competing
considerations of 'justice to the backwards, equity for the
forwards and efficiency for the entire system' [M. Nagaraj v.
D Union of India, (2006) 8 SCC 212, at para. 44]. In this respect,
it was argued that excessive reservations in favour of OBCs
and the reservation of chairperson posts in panchayats disrupts
the desired balance between these considerations. In fact the
petitioners have also urged us to reconsider some earlier
E decisions of this Court which have dealt with the status of the
rights of political participation such as the right to vote, the right
to nominate candidates and the right to contest elections. It may
be recalled that the right to vote has been held to be a statutory
right and not a fundamental right and the same position has
F been consistently upheld in subsequent decisions. [See
decision in N.P. Ponnuswamy v. Returning Officer, 1952 SCR
218, which has been followed in Jyoti Basu v. Debi Ghosal,
(1982) 1 SCC 691, Mohan Lal Tripathi v. District Magistrate,
Rai Bareilly, (1992) 4 SCC 80, Rama Kant Pandey v. Union
G of India, (1992) 2 SCC 438 and Ku/dip Nayar v. Union of
India, (2006) 7 SCC 1] This implies that the rights of political
participation are not absolute in nature and are subject to
statutory controls such as those provided in the Representation
of People Act, 1951 among others. Undoubtedly, reservations
H in elected local bodies do place restrictions on the rights of
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1007
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
political participation of persons who do not belong to the A
reserved categories. In this respect, the petitioners have
contended that this Court should e>..amine the reasonableness
of such rf~strictions with regard to the objective of ensuring 'free
and fair elections' [as observed in Indira Gandhi vs. Raj Narain,
1975 Supp sec 1, at Para. 213] as well as the expanded B
understanding of Article 21 of the Constitution.
SUBMISSIONS MADE ON BEHALF OF THE
RESPONDENTS
22. Since the constitutionality of some clauses in Art. 243- C
0 and Art. 243-T have been contested in this case, notices
were issued to all the State governments which had either
enacted fresh legislations or amended existing legislations in
accordance with the mandate of the 73rd and 74th
Amendments. While all of these State Governments were D
impleaded as respondents in this case, we had the benefit of
listening to the oral arguments presented by Shri Rajeev
Ohavan, Sr. Adv., who appeared on behalf of the State of Bihar,
Shri Oinesh Dwivedi, Sr. Adv., who appeared on behalf of the
State of Uttar Pradesh, Shri Uday Holla, Sr. Adv., who appeared E
for the State of Karnataka and Shri R. Shanmugasundaram, Sr.
Adv., who represented the Union Territory of Pondicherry. Apart
from the learned senior counsels who represented the various
State Governments, we were also addressed by Shri Gopal
Subramanium, the Additional Solicitor-General [now Solicitor- F
General of India] who voiced the views of the Union of India.
23. The respondents have of course defended the
constitutional validity of reservations in favour of backward
classes [as contemplated under Art. 243-0(6) and 243-T(6)] as
well as reservations of chairperson posts [enabled by Art. 243- G
0(4) and 243-T(4)] in elected local bodies. For the sake of
convenience, we will first refer to the submissions made by Shri
Rajeev Ohavan, Sr. Adv., since the same were adopted by
most of the other answering respondents. In response to the
petitioner's contention that the impugned constitutional H
1008 SUPREME COURT REPORTS [2010) 6 S.C.R._
A provisions violated elements of the 'basic structure' doctrine,
Shri Rajeev Dhavan contended that the basic structure is not
co-extensive with the fundamental rights in their entirety and
herce it would be wrong to scrutinize the validity of Art. 243-D
and 2t)3-T or the basis of principles which have been evolved
B in relr:ttio'l to the reservation benefits enabled by Articles 15(4)
ami 16•_4-). A distinction was drawn between a constitutional
amendment which modifies the scope of fundamental rights and
an aorogation of the basic structure. Pointing out that the nature
and purpose of reservations in the context of local self-
C goverr..11ent was quite different from that of education and
employment, it was contended that the objectives of Art. 243-
D and Art. 243-T was to pursue the idea of substantive equality
rather than formal equality in the matter of political
representation at the grassroots level. Beginning with the
premise that Constitutional amendments represent the popular
0
will, it was contended that classifications that are made by
constitutional provisions deserve a higher standard of
deference in comparison to statutory classifications. In this
case, the test of 'reasonable classification' cannot be applied
mechanically and due regard must be shown to the underlying
E objectives of democratic decentralization such as the
en 1powerment of weaker sections, a fair representation of
social diversity in local bodies and more accountability between
the elected representatives and the voters. The respondents'
sub:-.~ission is that the provisions enabling reservations in
F p<:ir.chayats and municipalities are in consonance with these
objectives and that the standard of judicial review over them
shculd ba ti-tat of proportionality.
24. It was further contended that the equality clause should
G not be viewed in a strait-jacketed manner and that it should
ac:::ount for the 'equality of expectations' as well as 'equality of
oui:;omes' in the context of political representation at the
gr2~;.;mots level. This means that while there is an expectation
of equal distribution of political power in representative
H institutions, we also have to factor in how the distribution of
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1009
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
power has a bearing on the substantive outcome;s and results A
for the electorate. In this case, we are dealing with
considerations of horizontal equality in a political sense. Owing
to the complex patterns of inequality in our society, there may
often be a need to depart from the standard of 'formal equality'
when it comes to expectations about distribution of political B
power. Affirmative action is designed to pursue the goal of
substantive equality and for this purpose it is necessary to take
into account the existing patterns of discrimination,
disadvantage and disempowerment among the different
sections of society. It was contended that while such patterns c
of inequality were often sought to be ascertained ihrough
empirical studies, a mere emphasis on numbers i::; not
adequate to understand the implications of the same. Hence,
reservations in local self-government have been introduced to
ensure the effective sharing of State power with the previousiy
0
· marginalized sections and also to empower them so as to
enable a confrontation with the existing patterns of social
discrimination.
25. Proceeding on the basis of this theoretical formulation,
Shri Rajeev Dhavan has defended the constitutional validity of E
reservations in favour of backward classes as well as the
reservation of chairperson posts. In response to the petitioner's
arguments that the reservations curtailed the rights of political
participation of persons belonging to the general category, it
was contended that we must take a real view of democracy F
which is responsive to the existing patterns of social inequality
rather than the formal view taken by the petitioners. Such a real
view of democracy would endorse the affirmative action taken
to empower the traditionally weaker sections. Even though it
was conceded that there has been a lot of uncertainty in the G
identification of backward classes for the purpose of
reservation policies in the context of education and employment,
it was contended that Art. 243-0(6) and Art. 243-T(6) are
me~ly enabling provisions and cannot be struck down as
being in violation of the equality clause. It was reasoned that Ii
1010 SUPREME COURT REPORTS [2010] 6 S.C.R.
A even though these provisions did not contain any guidance as
to the quantum of reservations, it was eventually up to the State
Governments to investigate the existence of backwardness and
to confer reservation benefits accordingly. In that respect, this
case presents a good opportunity to clarify whether the phrase
s 'backward classes' which appears in Art. 243-0(6) and Art.
243-T(6) is coextensive with the 'Socially and Educationally
Backward Classes' (SEBCs) contemplated under Articles 15(4)
and 15(5) or with the under-represented backward classes as
contemplated under Art. 16(4).
c 26. It was further contended that the upper ceiling of 50%
reservations has been contemplated in judicial decisions
dealing with reservations in education and employment. While
the considerations behind the same cannot be readily extended
to the domain of political representation at the grassroots level,
D it was argued that even if they were to be applied, the decision
in Indra Sawhney decision had contemplated an exception to
the 50% norm in 'extraordinary situations' [See 1992 Supp (3)
sec 217, at Para. 810]. To support this contention, it was
pointed out that reservations in excess of 50% had been
E permitted in the Fifth and Sixth Scheduled Areas and more
importantly the Legislative Assemblies of some States have
reservations that are far in excess of 50% of the number of
seats. With respect to the State legislations under challenge,
it was argued that the 50% ceiling would not be crossed under
F most of them since it is only the vertical reservations (i.e. on
communal lines in favour of SC/ST/OBCs) that are taken into
consideration for this purpose. Even though there is a 33%
reservation in favour of women in elected local bodies, the
same is in the nature of a horizontal reservation which
G intersects with the vertical reservations in favour of SC/ST/OBC.
In such a scenario, the seats occupied by women belonging to
the general category cannot be computed for the purpose of
ascertaining whether the 50% upper ceiling has been
breached.
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1011
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
27. In response to the challenge against the very principle A
of reserving Chairperson posts, it has been contended that the
same is in the nature of protective discrimination. The
respondents have strongly refuted the petitioners' submission
fhat the chairperson posts in local bodies are akin to solitary
!posts in public employment. Disputing this analogy, it was B
contended that as per Art. 243-D(4), the reservation of
Chairperson posts is to be done on a rotational basis and the
frame of reference for the same is the entire pool of chairperson
posts in the local bodies of the whole State. In such a scenario,
it was wrong to characterise chairperson posts as solitary c
posts. In response to the suggestion that the reservation of
executive positions in local self-government could prove to be
the precursor for reservation of executive positions in higher
levels of government, it was stated that the considerations
.applicable in the local setting are very different from those that D
prevail at the State and the National level. At higher levels of
government, elected representatives from the traditionally
weaker sections can rely on the support of mainstream political
·parties if they face undue pressures and prejudices. However,
at the local level, the patterns of disempowerment,
discrimination and disadvantage are far more pervasive and E
it will be difficult for weaker sections to gain an effective say in
governance, but for the reservation of chairperson positions in
Panchayats and Municipalities.
28. The respondent's position was further supported by F
Shri Gopal Subramanium (now SG). The Learned SG
responded to the petitioner's argument that the framers had
deliberated upon the question of reservations in representative
institutions and that they had chosen to confine the same to
SCs and STs (under Arts. 330 and 332). To counter this line of G
reasoning, it was submitted that the provisions incorporated by
the framers did not preclude the expansion of reservation
benefits in favour of backward classes by means of a
subsequent constitutional amendment. It was pointed out that
even though the 73rd and 74th Amendments enacted in 1993 H
1012 SUPREME COURT REPORTS [2010] 6 S.C.R.
A had given constitutional recognition to the local self-government
institutions, it could not be asserted that reservations in favour
of weaker sections had not been contemplated before that
point of time. To support this line of reasoning, the written
submissions submitted on behalf of the Union of India have
B traced the evolution of local self-government institutions from
the prE-constitutional period to the post-independence period.
After referring to the main recommendations of the Balwantrai
Mehta Committee Report (1957) and the Ashok Mehta
Committee Report (1978) which were in favour of democratic
c decentralisation, it was urged that reservations in local self-
government were intended to enable the adequate
representation of previously excluded and marginalized groups
while also giving them the opportunity to play leadership roles.
The learned SG further contended that the spirit behind Arts.
243-D and 243-T was akin to Arts. 15(3), 15(4) and 16(4) Which
D have enabled different forms of affirmative action in order to
pursue the goal of substantive equality. In this sense, the learned
SG has taken a definitive stand by suggesting that the phrase
'backward classes' which appears in Art. 243-0(6) and 243-
T(6) should be coterminus with the Socially and Educationally
E Backward Classes (SEBCs) identified for the purpose of
reservation enabled by Art. 15(4).
29. Apart from the above, the learned SG has cited
numerous decisions of this Court which have examined and
F evolved the idea of 'substantive equality', which in turn is
identified as part of the 'basic structure' doctrine. In this respect,
the gist of the submission is that the reservation policy enabled
by Arts. 243-D and 243-T will enhance the political participation
of hitherto weaker sections, thereby contributing to their welfare
G in the long run. In response to the arguments about limitations
on the political participation of persons who do not belong to
the reserved categories, it was reiterated that the right to cast
votes and to contest elections are riot fundamental rights and
hence they can be subjected to statutory controls.
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1013
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
THE NATURE AND PURPOSE OF RESERVATIONS IN A
THE CONTEXT OF LOCAL-SELF GOVERNMENT IS
DIFFERENT FROM THAT IN HIGHER EDUCATION AND
PUBLIC EMPLOYMENT
30. Before addressing the contentious issues, it is 8
necessary to e>.amine the overarching considerations behind
the provisions for reservations in elected local bodies. At the
outset, we are in agreement with Shri Rajeev Dhavan's
suggestion that the principles that have been evolved for
conferring the reservation benefits contemplated by Articles C
15(4) and 16(4) cannot be mechanically applied in the context
of reservations enabled by Article 243-0 and 243-T. In this
respect, we endorse the proposition that Article 243-0 and 243-
T form a distinct and independent constitutional basis for
- reservations in local self-government institutions, the nature and
purpose of which is different from the reservation policies
designed to improve access to higher education and public
D
employment, as contemplated under Article 15(4) and 16(4)
respectively. Specifically with regard to the unviability of the
analogy between Article 16(4) and Article 243-0, we are in
agreement with a decision of the Bombay High Court, reported E
as Vinayakrao Gangaramji Oeshmukh 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 Caste Woman. In the course of upholding this
reservation, it was held as follows: F
" ... Now, after the seventy-third and seventy-fourth
Constitutional amendments, the constitution of local bodies
has been granted a constitutional protection and Article
2430 mandates that a seat be reserved for the Scheduled G
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 Scheduled Tribes and women in such manner
H
1014 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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 constitutional power which directs the
B reservation in such local bodies ... ."
We are of course aware of the fact that some decisions
in the past have examined the validity of reservations in local
self-government by applying the principles evolved in relation
C to education and employment.
31. In this respect, we are in partial agreement with one
of the submissions made by Shri M. Rama Jois that the nature
of disadvantages which restrict access to education and
employment cannot be readily equated with disadvantages in
D the realm of political representation. To be sure, backwardness
in the social and economic sense does not necessarily imply
-
political backwardness. However, the petitioner's emphasis on
the distinction between 'selection' (in case of education and
employment) and 'election' (in case of political representation)
E does not adequately reflect the complexities involved. It is of
course undeniable that in determining who can get access to
education and employment, due regard must be given to
considerations of merit and efficiency which can be measured
in an objective manner. Hence, admissions to educational
F institutions and the recruitment to government jobs is ordinarily
done through methods such as examinations, interviews or
assessment of past performance. Since it is felt that applicants
belonging to the SC/ST/OBC categories among others are at
a disadvantage when they compete through these methods, a
G level-playing field is sought to be created by way of conferring
reservation benefits.
32. In the domain of political participation, there can be no
objective parameters to determine who is more likely to get
elected to representative institutions at any level. The choices
H of voters are not guided by an objective assessment of a
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1015 . ·'
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
candidate's merit and efficiency. Instead, they are shaped by A
subjective factors such as the candidate's ability to canvass
support, past service record, professed ideology and affiliations
to organised groups among others. In this context, it is quite
possible that candidates belonging to the SC/ST/OBC
categories could dE'monstrate these subjective qualities and win B
elections against candidates from the relatively better-off
groups. However, such a scenario cannot be presumed in all
circumstances. It is quite conceivable that in some localized
settings, backwardness in the social and economic sense can
also act as a barrier to effective political participation and c·
representation. When it comes to creating a level-playing field
for the purpose of elections to local bodies, backwardness in
the social and economic sense can indeed be one of the criteria
for conferring reservation benefits.
33. It must be kept in mind that there is also an inherent D
difference between the nature of benefits that accrue from
access to education and employment on one hand and political
representation at the grassroots level on the other hand. While
access to higher education and public employment increases
the likelihood of the socio-economic upliftment of the individual E
beneficiaries, participation in local-self government is intended
as a more immediate measure of empowerment for the
community that the elected representative belongs to. The
objectives of democratic decentralisation are not only to bring ·
governance closer to the people, but also to make it more F
participatory, inclusive and accountable to the weaker sections
of society. In this sense, reservations in local self-government
are intended to directly benefit the community as a whole, rather
than just the elected representatives. It is for this very reason
that there cannot be an exclusion of the 'creamy layer' in the G
context of political representation. There are bound to be
disparities in the socio-economic status of persons within the
groups that are the intended beneficiaries of reservation
policies. While the exclusion of the 'creamy layer' may be ·
feasible as well as desirable in the context of reservations for H
1016 SUPREME COURT REPORTS [2010] 6 S.C.R.
A education and employment, the same principle cannot be
extended to the context of local self-government. At the level of
panchayats, the empowerment of the elected individual is only
a means for pursuing the larger end of advancing the interests
of weaker sections. Hence, it would be counter-intuitive to
B exclude the relatively better-off persons among the intended
beneficiaries from the reservation benefits that are designed
to ensure diversity in the composition of local bodies. It is quite
likely that such persons may be better equipped to represent
and protect the interests of their respective communities. We
c can now attempt to provide answers to the contentious issues.
(i). VALIDITY OF RESERVATIONS IN FAVOUR OF
BACKWARD CLASSES
34. With respect to the challenge against the constitutional
o validity of Art. 243-0(6) and 243-T(6) which enable the
reservation of seats and chairperson posts in favour of
backward classes, we are in agreement with the respondents
that these are merely enabling provisions and it would be quite
improper to strike them down as violative of the equality clause.
E Admittedly, Art. 243-0(6) and 243-T(6) do not provide guidance
on how to identify the backward classes and neither do they
specify any principle for the quantum of such reservations.
Instead, discretion has been conferred on State Legislatures
to design and confer reservation benefits in favour of backward
F classes. It is but natural that questions will arise in respect of
the exercise of a discretionary power. The petitioners in this
case have objected to reservations in favour of OBCs to the
tune of 33% in the State of Karnataka and 27% in the State of
Uttar Pradesh. Similar objections can be raised with regard to
G some of the other State legislations as well. The gist of the
objection is that since most of the OBC groups are already well
represented in the political space, there is no principled basis
for conferring reservation benefits on them. Based on this
premise, it was contended that the reservations in favour of
OBCs do not meet the tests of 'reasonable classification' and
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1017
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
proportionality. Furthermore, apprehensions were voiced that A
the reservations in favour of OBCs have emerged as an
instrument by which incumbent State governments can engage
in 'vote-bank' politics by preferring one group over another. In
light of these contentions, it is obvious that the petitioner's real
concern is with overbreadth in the State legislations. B
35. There is no doubt in our minds that excessive and
disproportionate reseNations provided by State legislations
can indeed be the subject-matter of specific challenges before
the Courts. However, the same does not justify the striking down C
of Art. 24;3-0(6) and 243-T(6) which are Constitutional
provisions that enable reservations in favour of backward
classes in the first place. As far as the challenge against the
various State legislations is concerned, we were not provided
with adequate materials or argumentation that could help us to
make a decision about the same. The identification of D
backward classes for the purpose of reservations is an
executive function and as per the mandate of Art. 340,
dedicated commissions need to be appointed to conduct a
rigorous empirical inquiry into the nature and implications of
backwardness. It is also incumbent upon the executive to ensure E
that reseNation policies are reviewed from time to time so as·
to guard against overbreadth. In respect of the objections
against the Karnataka Panchayati Raj Act, 1993, all that we can
refer to is the Chinnappa Reddy Commission Report (1990)
which reflects the position as it existed twenty years ago. In the F
absence of updated empirical data, it is well nigh impossible
for the Courts to decide whether the reseNations in favour of
OBC groups are proportionate are not. Similarly, in the case
of the State of Uttar Pradesh, the claims about the extent of the
OBC population are based on the 1991 census. Reluctant as G
we are to leave these questions open, it goes without saying
that the petitioners are at liberty to raise specific challenges
against the State legislations if they can point out flaws in the
identification of backward classes with the help of updated
empirical data. H
1018 SUPREME COURT REPORTS [2010) 6 S.C.R.
A 36. As noted earlier, social and economic backwardness
does not necessarily coincide with political backwardness. In
this respect, the State Governments are well advised to
reconfigure their reservation policies, wherein the beneficiaries
under Art. 243-0(6) and 243-T(6) need not necessarily be
B cot9rminus with the Socially and Educationally Backward
Classes (SEBCs) [for the purpose of Art. 15(4)) or even the
Backward classes that are under-represented in government
jobs [for the purpose of Art. 16(4)). It would be safe to say that
not all of the groups which have been given reservation benefits
c in the domain of education and employment need reservations
in the sphere of local self-government. This is because the
barriers to political participation are not of the same character
as barriers that limit access to education and employment. This
calls for some fresh thinking and policy-making with regard to
reservations in local self-government.
0
37. In the absence of explicit constitutional guidance as to
the quantum of reservation in favour of backward classes in
local self-government, the rule of thumb is that of proportionate
reservation. However, we must lay stress on the fact that the
E upper ceiling of 50% (quantitative limitation) with respect to
vertical reservations in favour of SC/ST/OBCs should not be
breached. On the question of breaching this upper ceiling, the
arguments made by the petitioners were a little misconceived
since they had accounted for vertical reservations in favour of
F SC/ST/OBCs as well as horizontal reservations in favour of
women to assert that the 50% ceiling had been breached in
some of the States. This was clearly a misunderstanding of the
position since the horizontal reservations in favour of women
are meant to intersect with the vertical reservations in favour
G of SC/ST/OBC, since one-third of the seats reserved for the
latter categories are to be reserved for women belonging to the
same. This means that seats earmarked for women belonging
to the general category are not accounted for if one has to
gauge whether the upper ceiling of 50% has been breached.
H 38. Shri Rajeev Dhavan had contended that since the
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1019
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
context of local self-government is different from education and A
employment, the 50% ceiling for vertical reservations which was
prescribed in Indra Sawhney (supra.), cannot be blindly
imported since that case dealt with reservations in government
jobs. It was further contended that the same decision had
recognised the need for exceptional treatment in some 8
circumstances, which is evident from the following words (at
Paras. 809, 810):
"809. From the above discussion, the irresistible
conclusion that follows is that the reservations
contemplated in Clause (4) of Article 16 should not C
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. D
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
E
rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out."
39. Admittedly, reservations in excess of 50% do exist in
some exceptional cases, when it comes to the domain of
political representation. For instance, the Legislative F
Assemblies of the States of Arunachal Pradesh, Nagaland,
Meghalaya, Mizoram and Sikkim have reservations that are far
in excess of the 50% limit. However, such a position is the
outcome of exceptional considerations in relation to these ,
areas. Similarly, vertical reservations in excess of 50% are G
permissible in the composition of local self-government
institutions located in the Fifth Schedule Areas. In the recent
decision reported as Union of India v. Rakesh Kumar, (2010)
1 SCALE 281, this Court has explained why it may be
necessary to provide reservations in favour of Scheduled Tribes H
1020 SUPREME COURT REPORTS [2010] 6 S.C.R.
A that exceed 50% of the seats in panchayats located in
Scheduled Areas. However, such exceptional considerations
cannot be invoked when we are examining the quantum of
reservations in favour of backward classes for the purpose of
local bodies located in general areas. In such circumstances,
8 the vertical reservations in favour of SC/ST/OBCs cannot
exceed the upper limit of 50% when taken together. It is obvious
that in order to adhere to this upper ceiling, some of the States
may have to modify their legislations so as to reduce the
quantum of the existing quotas in favour of OBCs.
C (iii). VALIDITY OF RESERVING CHAIRPERSON
POSITIONS
40. The main criticism against the reservation of
chairperson positions in local self-government is that the same
amounts to cent-per-cent reservation since they are akin to
0
solitary posts. As mentioned earlier, the petitioners have relied
upon some High Court decisions [See: Janardhan Paswan v.
State of Bihar, Al R 1988 Pat 75; Krishna Kumar Mishra v.
State of Bihar, Al R 1996 Pat 112], wherein it had been held
E that reservations of Chairperson posts in Panchayats would not
be permissible since the same was tantamount to the
reservation of solitary seats. However, Article 243-0(4)
provides a clear Constitutional basis for reserving the
Chairperson positions in favour of SC and STs (in a
proportionate manner) while also providing that one-third of all
F chairperson positions in each tier of the Panchayati Raj
Institutions would be reserved in favour of women. As described
earlier, the considerations behind the provisions of Article 243-
0 cannot be readily compared with those of Article 16(4) which
is the basis for reservations in public employment. It is a settled
G principle in the domain of service law that single posts cannot
be reserved under the scheme of Article 16(4) and the
petitioners have rightly pointed out to some precedents in
support of their contention. However, the same proposition
cannot be readily extended to strike down reservations for
H chairperson positions in Panchayats. This is because
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1021
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
Chairperson positions should not be viewed as solitary seats A
by themselves for the purpose of reservation. Instead, the frame
of reference is the entire pool of Chairperson positions in each
tier of the three levels of Panchayati Raj Institutions in the entire
State. Out of this pool of seats which is computed across
panchayats in the whole state, the number of offices that are B
to be reserved in favour of Scheduled Castes and Scheduled
Tribes is to be determined on the basis of the proportion
between the population belonging to these categories and the
total population of the State. This interpretation is clearly
supported by a bare reading of the first proviso to Art. 243-0(4). c
It would be worthwhile to re-examine the language of the said
provision:
243-0(4) The offices of the Chairpersons in the
Panchayats at the village or any other level shall be
reserved for the Scheduled Castes, the Scheduled Tribes D
and women in such manner as the Legislature of a State
may, by law, provide:
Provided that the number of offices of Chairpersons
reserved for the Scheduled Castes and the Scheduled
Tribes in the Panchayats at each level in any State shall E
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 of the Scheduled Castes in the State or of
the Scheduled Tribes in the State bears to the total
population of the State: F
Provided further that not less than one-third of the 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 under G
this clause shall be allotted by rotation to different
Panchayats at each level.
41. As may be evident from the above-mentioned
provision, when the frame of reference is the entire pool of H
1022 SUPREME COURT REPORTS [2010] 6 S.C.R.
A chairperson positions computed across each tier of Panchayati
Raj institutions in the entire state, the possibility of cent-per-cent
reservation does not arise. For this purpose, a loose analogy
can be drawn with reservations in favour of Scheduled Castes
and Scheduled Tribes for the purpose of elections to the Lok
B Sabha and the respective Vidhan Sabhas. Before elections to
these bodies, the Election Commission earmarks some
electoral constituencies as those which are reserved for
candidates belonging to the SC/ST categories. For the purpose
of these reservations, the frame of reference is the total number
c of Lok Sabha or Vidhan Sabha seats in a State and not the
single position of an MP or MLA respectively. Corning back to
the context of Chairperson positions in Panchayats, it is
therefore permissible to reserve a certain number of these
offices in favour of Scheduled Castes, Scheduled Tribes and
women, provided that the same is done in accordance with the
0
provisos to Article 243-0(4).
42. In the case of urban local bodies, Art. 243-T(4) also
enables reservation of chairperson posts in favour of Scheduled
. Castes, Scheduled Tribes and women. However, there are no
E further specifications to guide the reservation of chairperson
positions in urban areas. While it is not possible for us to
ascertain the legislative intent behind the same, one can
perhaps theorise that there was an assumption that the
intended beneficiaries are in a relatively better-off position to
F overcome barriers to political participation in urban local
bodies, when compared with rural local bodies.
43. It was also contended that since chairpersons of
Panchayats and Municipalities are entrusted with executive
powers, reserving these posts could prove to be the precursor
G for reservations of executive offices at higher levels of
government. It was even suggested that the reservation of
chairperson posts was akin to reserving the posts of Chief
Minister and Prime Minister at the State and National level,
respectively. In our opinion, this analogy with the higher levels
H of government is misplaced. The offices of chairpersons in
OR. K. KRISHNA MURTHY & ORS. v. UNION OF 1023
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
Panchayats and Municipalities are reserved as a measure of A
protective discrimination, so as to enable the weaker sections
to assert their voice against entrenched interests at the local
level. The patterns of disadvantage and discrimination faced
by persons belonging to the weaker sections are more
pervasive at the local level. Unlike elected representatives in B
the Lok Sabha and the Vidhan Sabha who can fall back on the
support of mainstream political parties as well as media
scrutiny as a safeguard against marginalization and unjust
discrimination, elected representatives from the disadvantaged
se<(tions may have no such support-structures at the local level. C
In this respect, the Union Parliament thought it fit to enable
reservations of Chairperson positions in order to ensure that
not only are the weaker sections adequately represented in the
domain of local self-government, but that they also get a chance
to play leadership roles.
D
44. The other significant criticism of the reservation of
chairperson posts in local bodies is that it amounts to an
unreasonable limitation on the rights of political participation of
persons who do not belong to the reserved categories. As
enumerated in the petitioner's submissions, the rights of E
political participation broadly include the right of a citizen to vote
for a candidate of his/her choice and right of citizens to contest
elections for a public office. In the context of the present case,
these would include the rights of elected members to choose
the chairpersons of Panchayats and Municipalities. As outlined
F
earlier, it was contended that reserving these posts has the
effect of limiting the choices available to voters and effectively
discourages persons belonging to the general category from
contesting these elections. Shri Salman Khurshid had made
the point that unlike those who contest elections for the Lok
Sabha and the Vidhan Sabha, it is not viable for those who seek G
membership in the local bodies to contest elections in territorial
constituencies other than those in which they reside. This line
of argumentation was adopted in support of the contention that
H
1024 SUPREME COURT REPORTS [2010] 6 S.C.R.
A the reservation of chairperson posts is violative of the principles
of democracy.
45. While the exercise of electoral franchise is an essential
component of a liberal democracy, it is a well-settled principle
in Indian law, that the right to vote and contest elections does
B not have the status of fundamental rights. Instead, they are in
the nature of legal rights which can be controlled through
legislative means. On this point, we can refer to the following
observations made by R.M. Sahai, J. in Mohan Lal Tripathi v.
District Magistrate, Rai Bareil/y, (1992) 4 SCC 80, Para. 2:
c
"Democracy is a concept, a political philosophy, an ideal
practised by many nations culturally advanced and
politically mature by resorting to governance by
representatives of the people elected directly or indirectly.
But electing representatives to govern is neither a
D
'fundamental right' nor a 'common law right' but a special
right created by the statutes, or a 'political right' or
'privilege' and not a 'natural', 'absolute' or 'vested right'.
Concepts familiar to common law and equity must remain
strangers to Election Law unless statutorily embodied.
E Right to remove an elected representative, too, must stem
out of the statute as 'in the absence of a constitutional
restriction it is within the power of a legislature to enact a
law for the recall of officers'. Its existence or validity can
be decided on the provision of the Act and not, as a matter
F of policy.'
In this respect, it may be noticed that the Constitution
empowers the Election Commission of India to prepare
electoral rolls for the purpose of identifying the eligible voters
G in elections for the Lok Sabha and the Vidhan Sabhas. This
suggests that the right to vote is not an inherent right and it
cannot be claimed in an abstract sense. Furthermore, the
Representation of People Act, 1951 gives effect to the
Constitutional guidance on the eligibility of persons to contest
H elections. This includes grounds that render persons ineligible
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1025
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.] ~-
from contesting elections such as that of a person not being a A
citizen of India, a person being of unsound mind, insolvency and
the holding of an 'office of profit' under 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. B
46. The petitioners have asked us to reconsider the
precedents wherein the rights of political participation have
been characterised as statutory rights. It has been argued that
in view of the standard of reasonableness, fairness and non-
discrimination required of governmental action under Article 21 C
of the Constitution, there is a case for invalidating the
restrictions that have been placed on these rights as a
consequence of reservations in local self-government. We do
not agree with this contention. In this case, we are dealing with
an affirmative action measure and hence the test of D
proportionality is a far more appropriate standard for exercising
judicial review. It cannot be denied that the reservation of
chairperson posts in favour of candidates belonging to the
Scheduled Castes, Scheduled Tribes and women does restrict
the rights of political participation of persons from· the E
unreserved categories to a certain extent. However, we feel that
the test of reasonable classification is met in view of the
legitimate governmental objective of safeguarding the interests
of weaker sections by ensuring their adequate representation
as well as empowerment in local self-government institutions. F
The position has been eloquently explained in the respondents'
submissions, wherein it has been stated that 'the asymmetries
of power require that the Chairperson should belong to the
disadvantaged community so that the agenda of such
Panchayats is not hijacked for majoritarian reasons.' [Cited from G
Submissions on behalf of the State of Bihar, p. 49]
47. There have of course been some arguments doubting
the efficacy of reserving chairperson posts, mostly on the
premise that this does not lead to the actual empowerment of
the intended beneficiaries, since they are still dominated by the H
1026 SUPREME COURT REPORTS [2010] 6 S.C.R.
A traditionally powerful sections. Especially in the case of elected
women representatives at the local level, it is often argued that
the real power is exercised by the male members of their
families. We are also alert to the frequent reports of instances
where women representatives have asserted themselves,
13 thereby inviting the wrath of the retrograde patriarchial society.
HowE.:ver, there are also increasing reports about success
stories which show that enhancing women's participation in local
self-government has expanded social welfare. Irrespective of
such concerns about the efficacy of reservations in local self-
C government, it is not proper for the judiciary to second-guess
a social welfare measure that has been incorporated by way
of a constitutional amendment. In light of these considerations,
we reject the challenge in respect of the constitutional validity
of Art. 243-0(4) and 243-T(4).
0 CONCLUSION
48. In view of the above, our conclusions are:-
(i) The nature and purpose of reservations in the context
of local self-government is considerably different from that
E of higher education and public employment. In this sense,
Articles 243-0 and Article 243-T form a distinct and
independent constitutional basis for affirmative action and
the principles that have been evolved in relation to the
reservation policies enabled by Articles 15(4) and 16(4)
F cannot be readily applied in the context of local self-
government. Even when made, they need not be for a
period corresponding to the period of reservation for
purposes of Articles 15(4) and 16(4), but can be much
shorter.
G
(ii) Article 243-0(6) and Article 243-T(6) are
constitutionally valid since they are in the nature of
provisions which merely enable State Legislatures to
reserve seats and chairperson posts in favour of backward
classes. Concerns about disproportionate reservations
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF 1027
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
should be raised by way of specific challenges against the A
State Legislations.
(iii) We are not in a position to examine the claims about
overbreadth in the quantum of reservations provided for
OBCs under the impugned State Legislations since there
B
is no contemporaneous empirical data. The onus is on the
executive to conduct a rigorous investigation into the
patterns of backwardness that act as barriers to political
participation which are indeed quite different from the
patterns of disadvantages in the matter of access to C
education and employment. As we have considered and
decided only the constitutional validity of Articles 243-0(6)
and 243-T(6), it will be open to the petitioners or any
aggrieved party to challenge any State legislation enacted
in pursuance of the said constitutional provisions before
the High Court. We are of the view that the identification D
of 'backward classes' under Art. 243-0(6) and Art. 243-
T(6) should be distinct from the identification of SEBCs for
the purpose of Art. 15(4) and that of backward classes for
the purpose of Art. 16(4).
E
(iv) The upper ceiling of 50% vertical reservations in favour
of SC/ST/OBCs should not be breached in the context of
local self-government. Exceptions can only be made in
order to safeguard the interests of Scheduled Tribes in the
matter of their representation in panchayats located in the
F
Scheduled Areas.
(v) The reservation of chairperson posts in the manner
contemplated by Article 243-0(4) and 243-T(4) is
constitutionally valid. These chairperson posts cannot be
equated with solitary posts in the context of public G
employment.
49. With these observations, the present set of writ
petitions stands disposed of.
N.J. Writ Petitions disposed of. H
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