DR. K. KRISHNA MURTHY & ORS. v. UNION OF INDIA & ANR.

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).

42Copy pinpoint42. 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 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 overcome barriers to political participation in urban local bodies, when compared with rural local bodies.

43Copy pinpoint43. 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 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 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 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 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

44Copy pinpoint44. 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 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 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 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

1024 SUPREME COURT REPORTS [2010] 6 S.C.R.

A the reservation of chairperson posts is violative of the principles of democracy.

45Copy pinpoint45. 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 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 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 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

46Copy pinpoint46. 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 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 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]

47Copy pinpoint47. 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

48Copy pinpoint48. 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 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 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 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.

49Copy pinpoint49. With these observations, the present set of writ petitions stands disposed of.

N.J. Writ Petitions disposed of. H