REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE HURISDICTION

CIVIL APPEAL NOS. 484-491 OF 2006

UNION OF INDIA, etc.               ….APPELLANT

Versus

RAKE SH KUMAR AND ORS.,etc                         ….RESPONDENTS  

WITH

Civil Appeal No.209 of 2010 (Arising out of SLP (C) No. 21123 OF 2005)

Civil Appeal Nos. 210-211 of 2010 (Arising out of SLP (C) No. 21124-25 OF 2005)

Civil Appeal No. 212 of 2010 (Arising out of SLP (C) No. 21129 OF 2005)

Civil Appeal No. 213 of 2010 (Arising out of SLP (C) No. 21131 OF 2005)

Civil Appeal No. 214 of 2010 (Arising out of SLP (C) No. 23887 OF 2005)

Civil Appeal No. 215 of 2010 (Arising out of SLP (C) No. 2535 OF 2006)

Civil Appeal No. 216 of 2010 (Arising out of SLP (C) No. 3274 OF 2006)

Civil Appeal No. 217 of 2010 (Arising out of SLP (C) No. 6325 OF 2008)

JUDGMENT

K.G. BALAKRISHNAN, CJI

1. Leave granted.

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2. For a considerable period during the British Rule, special laws were  

made  applicable  to  certain  ‘backward  areas’  in  India  that  were  

predominantly  occupied  by  tribal  people.  These  backward  regions  

covered  an  area  of  more  than  1,20,000  square  miles.  However,  the  

characteristics of these areas and their populations varied widely. By Act  

XIV of 1874, Santhal Parganas and Chutia Nagpur Division (now known  

as  Chhotanagpur  Division)  were  created  and  in  these  ‘Scheduled  

districts’,  tribal  communities  were  accorded  a  certain  degree  of  

autonomy to regulate their affairs on the basis of their own conventions  

and traditions. Many of these communities chose their leaders through  

an informal consensus among other customary methods for selection.  

When  the  Constitution  was  enacted,  these  areas  were  designated  as  

‘Scheduled Areas’. Article 244 of the Constitution explicitly states that  

the  provisions  of  the  Fifth  Schedule  shall  apply  in  respect  of  the  

administration and control of the Scheduled Areas in any State other  

than  the  States  of  Assam,  Meghalaya,  Tripura  and  Mizoram.  The  

provisions of the Sixth Schedule guide the administration of tribal areas  

in those states.

3. Paragraph (4) of the Fifth Schedule states that there shall be in each  

State having a “Schedule Area”, a ‘Tribes Advisory Council’ consisting of  

not more than twenty members of whom, as nearly as may be, three-

fourths  shall  be  the  representatives  of  the  Scheduled  Tribes  in  the  

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Legislative Assembly of the State. It was the duty of the ‘Tribes Advisory  

Council’ to advise on matters pertaining to the welfare and advancement  

of the Scheduled Tribes in the State. Paragraph (5) of the Fifth Schedule  

states that the Governor of the State may by public notification direct  

that any particular Act of Parliament or the Legislature of the State shall  

not apply to a Scheduled Area or would apply subject to such exceptions  

and modifications as he may specify. The Governor of the State may also  

make regulations for the peace and good government of any area in a  

State which is for the time being a Scheduled Area.  The Governor of the  

State has also been given the power to repeal or amend any existing Act  

of Parliament or of the Legislature of the State which is for the time being  

applicable to the area in question.

4. Hence, it is evident that the framers’ intent behind including the Fifth  

Schedule was that of a separate administrative scheme for Scheduled  

Areas  in  order  to  address  the  special  needs  of  tribal  communities.  

During  the  debates  on  the  floor  of  the  Constituent  Assembly,  some  

members had criticized such differential treatment for Scheduled Tribes.  

In response to such criticisms, Shri K.M. Munshi had said that ‘Adivasis’  

or tribes were many in number belonging to different “ethnic, religious  

and  social  groups”  and  he  explained  the  object  of  the  Drafting  

Committee’s proposals in the following words:

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“We want that the Scheduled Tribes in the whole country should  be  protected  from the  destructive  impact  of  races  possessing  a  higher and more aggressive culture and should be encouraged to  develop their own autonomous life; at the same time we want them  to take a larger part in the life of the country adopted. They should  not be isolated communities or little republics to be perpetuated  for  ever…..  object  is  to  maintain  them  as  little  unconnected  communities which might develop into different groups from the  rest of the country….. and that these tribes should be absorbed in  the national life of the country.”

5.  In  exercise  of  the  powers  conferred  by  paragraph 6(i)  of  the  Fifth  

Schedule to the Constitution of India, the President of India made an  

Order known as The Scheduled Area (Part A States) Order, 1950. With  

respect to the then combined State of Bihar, this Order was applied to  

Ranchi  district,  Singhbhum district  (excluding  Dalbhum sub-division)  

and Santhal Pargana district. The following table shows the chronology  

of the governmental measures which have identified Scheduled Areas in  

the territories that lie in the present-day State of Jharkhand:

1874 Scheduled  Districts  Act,  1874  (Act XIV of 1874) passed during  the colonial period

Declared  the  Santhal  Parganas  and  the  Chutia Nagpur Division (now known as  ‘Chhotanagpur  Division’)  as  ‘scheduled  districts’  in  the  erstwhile  province  of  Bengal. These areas now come within the  territory of the State of Jharkhand.

1950 After  independence,  The  President  of  India  had  made  an  order  known  as  The  Scheduled  Area (Part A States) Order, 1950  in  exercise  of  the  powers  conferred  by  Paragraph  6(ii)  of  the  Fifth  Schedule  to  the  Constitution of India.

In  pursuance  of  this  Order,  Ranchi  district,  Singhbhum  district  (excluding  Dalbhum sub-division),  Santhal  Pargana  district  (excluding  Godda  and  Deoghar  sub-divisions)  and  Latehar  sub-division  of  Palamau district  were  declared  to  be  Scheduled areas.

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1977 The  1950  Order  was  rescinded  and  replaced  by  the  Scheduled  Areas  (States  of  Bihar,  Gujarat,  Madhya  Pradesh  and  Orissa)  Order, 1977

By  the  said  Order,  Ranchi  district,  Singhbhum district,  Latehar sub-division  and  Bhandaria  block  of  Garhwa  sub- division  in  Palamau  district,  Dumka;  Pakur;  Rajmahal  and  Jamatra  sub- divisions and Sundarpahari  and Boarijor  blocks of Godda sub-divisions in Santhal  Pargana district were shown as scheduled  areas of the then combined State of Bihar,  all of which now fall within the territory  of Jharkhand.

2003 Subsequent  to  the  formation  of  the  States  of  Jharkhand  and  Chhattisgarh,  The  Scheduled  Areas  (States  of  Chhattisgarh,  Jharkhand and Madhya Pradesh)  Order,  2003  was  passed  to  replace the 1977 order

Under the 2003 order, the following areas  in  the  State  of  Jharkhand  have  been  declared as Scheduled Areas:   

1. Burhmu,  Mandar,  Chanho,  Bero,  Lapung,  Namkom,  Kanke,  Ormanjhi, Angara, Silli, Sonahatu,  Tamar,  Bundu,  Arki,  Khunti,  Murhu,  Karra,  Torpa and Raniya  blocks in Ranchi District.  

2. Kisko,  Kuru,  Lohardaga,  Bhadra  and  Senha  blocks  in  Lohardaga  district

3. Bishanpur,  Ghaghra,  Chainpur,  Dumri,  Raidih,  Gumla,  Sisai,  Kagdara,  Basiya  and  Palkot  blocks in Gumla District

4. Simdega, Kolebira, Bano, Jaldega,  Thethetangar, Kurdeng and Bolba  blocks within Simdega District.

5. Barwadih,  Manika,  Balumath,  Chandwa,  Latehar,  Garu  and  Mahuadaran  blocks  within  Latehar District

6. Bhandariya block within  Garhwa  District

7. Bandgaon,  Chakradharpur,  Sonuwa, Goyalkera,  Mahoharpur,  Noamundi,  Jagannathpur,  Manghgaon,  Kumardungi,  Manjhari,  Tatnagar,  Jhinkpani,  Tonto,  Khutpani  and  Chaibasa  blocks within the West Singhbum  District

8. Govindpur  (Rajnagar),  Adityapur  (Ghamariya), Seraikela, Kharsaan,  

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Kuchai,  Chandil,  Ichagarh  and  Nimdih  blocks  within  Seraikella  Kharsawan District

9. Golmuri-Jugslia,  Patmada,  Potka,  Dumariya,  Musabani,  Ghatsila,  Dhalbhumgarh,  Chakuliya  and  Bahragora  blocks  within  East  Singhbhum District

10. Sariyahat,  Jarmundi,  Jama,  Ramagarh,  Gopikandar,  Kathikund,  Dumka,  Sikripara,  Raneshwar  and  Masaliya  blocks  within Dumka District.

11. Kundhit,  Nala,  Jamtara  and  Narayanpur blocks within Jamtara  District

12. Sahebganj,  Boriyo,  Taljhari,  Rajmahal,  Barharwa,  Pathna  and  Barhet  blocks  within  Sahebganj  District.

13. Littipara,  Amrapara,  Hiranpur,  Pakur,  Maheshpur  and  Pakuriya  blocks within Pakur District

14. Borijore and Sundarpahari blocks  within Godda District.  

2007 Subsequent  to  the  impugned  judgment of the Jharkhand High  Court,  the  Government  of  Jharkhand  passed  the  Scheduled  Areas (State of Jharkhand) Order,  2007 and the same is presently in  force.    

Hence,  Tribes  Advisory  Councils  had  been  constituted  for  these  

Scheduled areas since the Panchayati Raj System had not been extended  

to them.

6.  By way of  the  Constitution  (Seventy-Third  Amendment)  Act,  1992,  

Part IX was inserted in the Constitution of India.  Article 243B of Part IX  

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of  the  Constitution  mandated  that  there  shall  be  Panchayats  at  the  

village, intermediate and district levels in accordance with the provisions  

of this Part. Article 243-C provides that the Legislature of a State may,  

by law, make provisions with respect to the composition of Panchayats.  

Detailed  provisions  were  made  under  Article  243-D  enabling  the  

reservation of seats for Scheduled Castes, Scheduled Tribes, women and  

other backward classes. Article 243-M stated that nothing in this Part  

shall  apply  to the Scheduled Areas referred to in  clause (1),  and the  

tribal areas referred to in clause (2), of article 244.  

7. Two years after the 73rd Amendment Act, the Union Government had  

appointed  a  Committee  of  Members  of  Parliament  (MPs)  and  experts  

under  the  Chairmanship  of  Sh.  Dilip  Singh  Bhuria  to  undertake  a  

detailed  study  and  make  recommendations  about  whether  the  

Panchayati raj system should be extended to the Schedules Areas, as  

contemplated by Article 243-M(4)(b) of the Constitution. The Committee  

submitted  its  report  on  17.1.1995  and  favoured  democratic  

decentralization in scheduled areas. It will be instructive to refer to the  

following observations in the Bhuria Committee Report (at Para. 10):-

“Tribal life and economy, in the not too distant past,  bore  a  harmonious  relationship  with  nature  and its  endowment.  It  was  an  example  of  sustainable  development.  But  with  the  influx  of  outside  population,  it  suffered  grievous  blows.  The  colonial  system was established on the basis of expropriation  

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of the natural  and economic resources of  tribal  and  other  areas  in  the  country.  Although,  theoretically,  there  has  been  difference  in  the  approach after  the  departure of the colonial masters from Tribal areas, in  practice,  the principles enunciated in Article 39 and  other  Directive  Principles  of  State  Policy  have  to  be  followed  more  rigorously.  On  account  of  their  simplicity arid ignorance, over the decades the tribals  have been dispossessed of their natural and economic  resources  like  land,  forest,  water,  air,  etc..  The  dispossession has not been confined to that through  private  parties.  For  the  purpose  of  promotion  of  general economic development projects, the State also  has  been  depriving  them  of  the  basis  means  of  livelihood. These processes have been operative since a  long time causing human misery and socio-economic  damage.  No  reliable  picture  is  yet  available,  for  instance, we are not seized on the total  quantum of  land  alienated  from the  tribals  both  on  private  and  State  account  nor  the  number  of  families,  clans  or  Tribes involved. This has compelled some to perceive  development  as  an  agent  of  destruction.  But  since  planned development has been an article of faith with  us,  it  has to be ensured that implementation of  the  policies and programmes drawn up in tribal  interest  are implemented in tribal interest. Since, by and large,  the  politico-bureaucratic  apparatus  has  failed  in  its  endeavor, powers should be developed on the people  so  that  they  can  formulate  programmed  which  suit  them and implement them for their own benefits."

It was further observed, at Para. 30:   

“The  group  was  further  of  the  view  that  notwithstanding  the  fact  that  the  areas  under  consideration  i.e.  Scheduled  Areas  are  expected  to  have majority  of tribal  population,  it  is  necessary to  stipulate  that  the  Panchayats  therein  will  have  a  majority of Scheduled Tribes members. The reason is  that  the  Scheduled  Areas  were  notified  as  such  on  account  of  majority  of  Scheduled  Tribe  population,  contiguity etc. In course of time, on account of influx  

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of non-ST population, in a few Scheduled Areas, the  status of the ST population might have been reduced  to a minority. That should not be regarded as having  altered the overall  character of the Scheduled Areas.  The chairmen and vice-chairmen should belong to the  Scheduled  Tribes.  One-third  of  the  seats  should  be  reserved for women.”

(Emphasis supplied)

8.  Evidently,  the  Committee  made  three  specific  recommendations,  

namely,  (a)  Panchayats  in  scheduled  areas  must  have  a  majority  of  

scheduled  tribes  members,  (b)  Chairmen  and  Vice-Chairmen  should  

belong  to  scheduled  tribes,  and  (c)  one-third  of  the  seats  should  be  

reserved for women. The Committee felt that certain provisions in Part IX  

which pertained to Panchayati  Raj Institutions (PRIs)  were wholesome  

and should be incorporated in the law to be passed by the Parliament  

under Article 243-M(4)(b) with due regard for the unique characteristics  

of  tribal  societies  residing  in the  Scheduled Areas.  It  was considered  

especially  important  to  protect  the  interests  of  many  tribal  societies  

which  have  their  own  customary  laws,  traditional  practices  and  

community ethos. The Committee was also of the view that since the  

Scheduled Areas and Tribal  Areas are expected to have a majority  of  

tribal  population,  the  Panchayats  at  different  tiers  should  have  a  

majority of members who belong to the Scheduled Tribes (Hereinafter  

‘STs’). Furthermore, it was suggested that both the chairman and vice-

chairman should belong to this category as well.  The Committee also  

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made  recommendations  in  respect  of  the  various  functions  to  be  

discharged  by  the  Gram  Sabhas  in  Tribal  areas.  They  pertained  to  

safeguards for the rights of the tribal communities in matters relating to  

land, water, forest and minor forest produce; enforcement of customary  

rights  such  as  grazing,  fuel,  fodder,  minor  forest  produce,  building  

materials;  mobilization  for  community  welfare  programmes  and  

organising  voluntary  labour  for  community  works;  promotion  of  

solidarity and harmony among all sections of people; consideration of the  

report on the audit of accounts of the Gram Panchayat; women and child  

development; identification of the beneficiaries for poverty alleviation and  

other programmes and host of other welfare measures such as drinking  

water  supply,  sanitation,  conservancy  and  drainage;  public  health  

measures; village roads and streets; small tanks; maintenance of public  

properties  and  community  assets.  The  Committee  gave  detailed  

suggestions with regard to the powers, functions and procedures of the  

Panchayati Raj Institutions.

9. Based on these recommendations, The Panchayats (Extension to the  

Scheduled  Areas)  Act,  1996  [hereinafter  ‘PESA’]  was  passed  by  the  

Parliament in 1996. The statement of Objects and Reasons of the PESA  

Act reads as follows:

“There have been persistent demands from prominent  leaders  of  the  Scheduled  Areas  for  extending  the  provisions of Part IX of the Constitution to these Areas  

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so that Panchayat Raj Institutions may be established  there.  Accordingly, it is proposed to introduce a Bill to  provide for the extension of the provisions of Part IX of  the  Constitution  to  the  Schedule  Areas  with  certain  modifications providing that, among other things, the  State  Legislations  that  may  be  made  shall  be  in  consonance  with  the  customary  law,  social  and  religious  practices  and  traditional  management  practices  of  community  resources;  ….  The  offices  of  the Chairpersons in the Panchayats at all levels shall  be reserved for the Scheduled Tribes; the reservations  of seats at every Panchayat for the Scheduled Tribes  shall not be less than one-third of the total number of  seats.”

10.  The provision of  the PESA Act  which merits  consideration in the  

present case is Section 4 which reads as follows:-

4. Notwithstanding  anything  contained  under  Part  IX  of  the  Constitution, the Legislature of a State shall not make any  law under that Part which is inconsistent with any of the  following features, namely:--

(a) a  State  legislation  on  the  Panchayats  that  may  be  made shall be in consonance with the customary law,  social  and  religious  practices  and  traditional  management practices of community resources;

(b) a village shall ordinarily consist of a habitation or a  group of habitations or a hamlet or a group of hamlets  comprising a community and managing its affairs in  accordance with traditions and customs;

(c) every village shall  have a Gram Sabha consisting of  persons  whose  names  are  included  in  the  electoral  rolls for the Panchayat at the village level;

(d) every  Gram Sabha shall  be  competent  to  safeguard  and preserve the traditions and customs of the people,  their cultural identity, community resources and the  customary mode of dispute resolution;

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(e) every Gram Sabha shall – (i) approve  the  plans,  programmes and projects  

for  social  and  economic  development  before  such  plans,  programmes  and  projects  are  taken up for implementation by the Panchayat  at the village level;

(ii) be  responsible  for  the  identification  or  selection of persons as beneficiaries under the  poverty alleviation and other programmes;

(f) every Panchayat at the village level shall be required to  obtain  from  the  Gram  Sabha  a  certification  of  utilization of funds by that Panchayat for the plans,  programmes and projects referred to in clause (e);

(g) the  reservation  of  seats  in  the  Scheduled  Areas  at    every  Panchayat  shall  be  in  proportion  to  the  population of the communities in that Panchayat for  whom reservation is sought to be given under Part IX  of the Constitution;

Provided that the reservation for the Scheduled  Tribes shall not be less than one-half of the total  number of seats:

Provided further that all seats of Chairpersons  of Panchayats at all levels shall be reserved for  the Scheduled Tribes;

(h) the  State  Government  may  nominate  persons  belonging  to  such  Schedule  Tribes  as  have  no  representation in  the  Panchayat  at  the intermediate  level or the Panchayat at the district level:

Provided that such nomination shall not exceed  one-tenth of the total members to be elected in  that Panchayat;

(i) the Gram Sabha or the Panchayats at the appropriate  level shall be consulted before making the acquisition  of  land  in  the  Scheduled  Areas  for  development  projects  and  before  re-settling  or  rehabilitating  persons  affected  by  such  projects  in  the  Scheduled  Areas; the actual planning and implementation of the  projects in the Scheduled Areas shall be coordinated  at the State level;

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(j) planning and management of  minor water bodies in  the Scheduled Areas shall be entrusted to Panchayats  at the appropriate level;

(k) the  recommendations  of  the  Gram  Sabha  or  the  Panchayats  at  the  appropriate  level  shall  be  made  mandatory  prior  to  grant  of  prospecting  licence  or  mining  lease  for  minor  minerals  in  the  Scheduled  Areas:

(l) the prior recommendation of the Gram Sabha or the  Panchayats  at  the  appropriate  level  shall  be  made  mandatory for grant of concession for the exploitation  of minor minerals by auction;

(m) while  endowing  Panchayats  in  the  Scheduled  Areas  with such powers and authority as may be necessary  to  enable  them  to  function  as  institutions  of  self- government, a State Legislature shall ensure that the  Panchayats  at  the  appropriate  level  and  the  Gram  Sabha are endowed specifically with –

(i) the power to enforce prohibition or to regulate  or  restrict  the  sale  and  consumption  of  any  intoxicant;

(ii) the ownership of minor forest produce;

(iii) the power to prevent alienation of land in the  Scheduled  Areas  and  to  take  appropriate  action to restore any unlawfully alienated land  of a Scheduled Tribe;

(iv) the  power  to  manage  village  markets  by  whatever name called;

(v) the  power  to  exercise  control  over  money  lending to the Scheduled Tribes;

(vi) the power to exercise control over institutions  and functionaries in all social sectors;

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(vii) the  power  to  control  over  local  plans  and  resources for such plans including tribal sub- plans;

(n) the State legislations that may endow Panchayats with  powers and authority as may be necessary to enable  them  to  function  as  institutions  or  self-government  shall contain safeguards to ensure that Panchayats at  the  higher  level  do  not  assume  the  powers  and  authority of any Panchayat at the lower level or of the  Gram Sabha;

(o) the  State  Legislature  shall  endeavour  to  follow  the  pattern of the Sixth Schedule to the Constitution while  designing  the  administrative  arrangements  in  the  Panchayats at district levels in the Scheduled Areas.

                              [emphasis supplied]

11. To give effect to the provisions of PESA Act, the State Legislature of  

Jharkhand  had  passed  the  Jharkhand  Panchayat  Raj  Act,  2001  

[Hereinafter ‘JPRA’] which included the following provisions:-  

  Section 17(B). Reservation of seats in Gram Panchayat. –  

 (B) For the members of the Gram Panchayat (in Scheduled Area). –  

(1)  In scheduled areas, in every Gram Panchayat, reservation of  seats in favour of Scheduled Castes and Scheduled Tribes shall be  made, proportionate to their respective population in that Gram  Panchayat:

Provided that the seats reserved for Scheduled Tribes shall  not be less than half of the total number.  

(2)  In  the  scheduled  areas,  in  Gram Panchayat,  seats  shall  be  reserved in such number in favour of persons of backward class,  proportionate  to  their  population,  which,  if  combined  with  the  seats reserved for Scheduled Castes and Scheduled tribes, if any,  

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shall not exceed more than Eighty per cent of total seats of that  Gram Panchayat.  

Section 21(B) – Reservation of Posts of Mukhia and Up-Mukhia in  Gram Panchayat (In Scheduled area) –

Post of  Mukhia and Up-Mukhia of  the Gram Panchayats in the  scheduled areas shall be reserved for the scheduled tribes;

Provided also that the Gram Panchayats, in the scheduled  areas, wherein there is no population of scheduled tribes,  shall be duly excluded from allotment of reserved posts of  Mukhia and Up-Mukhia of scheduled tribes.

Section 36(B)- Reservation of seats of Panchayat Samiti (in Schedule  Area) –  

(1) In scheduled areas, in every Panchayat Samiti, reservation of  seats in favour of Scheduled Castes and Scheduled Tribes shall be  made,  proportionate  to  their  respective  population  in  that  Panchayat Samiti:

Provided that the seats reserved for Scheduled Tribes shall  not be less than half of the total number.  

(2)  In the scheduled areas,  in Panchayat  Samiti,  seats  shall  be  reserved in such number in favour of persons of backward class,  proportionate  to  their  population,  which,  if  combined  with  the  seats reserved for Scheduled Castes and Scheduled tribes, if any,  shall not exceed more than Eighty per cent of total seats of that  Panchayat Samiti.  

…  

Section 40(B) – Reservation of Posts of Pramukh and Up-Pramukh in  Panchayat Samiti (In the scheduled area) –

Posts of Pramukh and Up-Pramukh in Panchayat Samitis in the  scheduled areas shall be reserved for the members belonging to  the scheduled tribes.

Section 51(B). Reservation of seats of Zila Parishad (in Scheduled  Area) –  

(1) In scheduled areas, in every Zila Parishad, reservation of seats  in  favour  of  Scheduled  Castes  and  Scheduled  Tribes  shall  be  

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made,  proportionate  to  their  respective  population  in  that  Zila  Parishad:  

Provided that the seats reserved for Scheduled Tribes shall  not be less than half of the total number.  

(2) In the scheduled areas, in Zila Parishad, seats shall be reserved  in  such  number  in  favour  of  persons  of  backward  class,  proportionate  to  their  population,  which,  if  combined  with  the  seats reserved for Scheduled Castes and Scheduled tribes, if any,  shall not exceed more than Eighty per cent of total seats of that  Zila Parishad.  

Section  55(B)  –  Reservation  for  Posts  of  Adhyaksha  and  Upadhakshya in Zila Parishad (In scheduled area) –

The post of Adhyaksha and Zila Parishads in scheduled areas shall  be reserved for the members of the scheduled tribes.

12. In the High Court of Jharkhand, several writ petitions were filed to  

challenge the constitutional validity of the PESA Act, 1996 and certain  

other provisions of the Jharkhand Panchayat Raj Act, 2001. With regard  

to the PESA, the main challenge was directed against the second proviso  

to Section 4(g) whereby all the seats of Chairpersons of Panchayats at all  

three tiers in Scheduled Areas are to be reserved in favour of Scheduled  

Tribes.  The petitioners before the High Court had contended that since  

every  eligible  individual  has  a  right  to  vote  and  the  right  to  contest  

elections for the seats and Chairperson positions in panchayats, the cent  

per  cent  reservation of  Chairperson  positions in favour  of  STs would  

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curtail  the rights of  candidates  other  than those belonging to the ST  

category.   

13. It was also argued that the cent per cent reservation of Chairperson  

positions  was  excessive  and  hence  violative  of  Article  14  of  the  

Constitution.  Some  of  the  petitioners  had  urged  that  the  office  of  a  

Chairperson should be treated as a solitary post and hence reservation  

of such office was not permissible. In support of this contention, they  

had relied on an earlier Judgment of the Patna High Court in the case of  

Janardhan Paswan v. State of Bihar, AIR 1988 Pat 75. This case was  

distinguished by the High Court keeping in mind that it  was decided  

before  the  commencement  of  the  Seventy-Third  Amendment  and that  

Article 243-D in Part IX of the Constitution had contemplated the said  

reservation policy.  However, the High Court held that the second proviso  

to  Section  4(g)  of  the  PESA  Act,  1996  reserving  all  the  seats  of  

Chairpersons  of  Panchayats  in  favour  of  Scheduled  Tribes  was  

unconstitutional. The relevant portion of the High Court Judgment reads  

as follows:-

“..So far  as  2nd proviso to clause  (g)  of  Section 4 of  PESA Act, 1996 is concerned, by such provision of the seats  of Chairpersons of Panchayats at all levels in the scheduled  areas have been reserved for the Scheduled Tribes.  In view  of the aforesaid proviso to clause (g) of Section 4 of PESA  Act, 1996, the State Government while enacted Jharkhand  Panchayat Raj Act, 2001 in regard to the scheduled areas,  all  seats  of  Chairpersons  of  Panchayats  at  all  levels  have  been  reserved  for  Scheduled  Tribes  vide  Section  21  (B),  

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Section 40(B) and Section 55 (B) of the Act, 2001.  It has  already been held that cent-percent reservation of the offices  and seats of Chairpersons cannot be made, being excessive,  unreasonable  and  against  the  principles  of  equality  i.e.  violative of Article 14 of the Constitution of India.  By the  aforesaid  provisions  cent-percent  reservation  of  seats  of  Chairpersons of Panchayats at all levels in scheduled areas  having  been  made,  they  cannot  be  upheld,  being  unconstitutional.  Accordingly, the 2nd proviso to clause (g) of  Section 4 of PESA Act, 1996, Section 21 (B), Section 40 (B)  and Section 55 (B) of Jharkhand Panchayat Raj Act, 2001 so  far  cent  percent  reservation  of  seats  of  Chairpersons  of  Panchayats  at  all  levels  in  favour  of  Scheduled  Tribes  is  concerned, are hereby declared unconstitutional and ultra- vires.”

The  above-mentioned  finding  of  the  High  Court  has  been  challenged  

before this Court by the Union of India (appellant).   

14.  In  the  course  of  the  proceedings  before  this  Court,  we  heard  

Mr.  Gopal  Subramanium,  Additional  Solicitor  General  [now  Solicitor  

General of India] and Mr. M.P. Raju, on behalf of the appellant.  Mr. P.S.  

Mishra,  Mr.  M.N.  Krishnamani,  Sr.  Adv.,  Mr.  R.  Venkataraman,  

Mr.  Nagender  Rai  and Mr.  Delip  Jerath,  learned  counsels  made  oral  

submissions on behalf of the respondents.

15.  It  should be  kept  in  mind that  apart  from relying  on the  earlier  

decision, the High Court did not state any specific reason for striking  

down the second proviso to Section 4(g) of the PESA Act, 1996 as well as  

Sections 21 (B), 40 (B) and 55 (B) of the JPRA Act, 2001 by holding these  

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provisions  to  be unconstitutional.  The only  reason given by the High  

Court was that cent per cent reservation of the offices of Chairpersons is  

excessive, unreasonable and against the principles of equality.  It may  

also be noted that the Bhuria Committee Report had recommended that  

the  Chairman  and  Vice-Chairman  of  Panchayats  should  belong  to  

Scheduled  Tribes.  This  recommendation  was  accepted  by  the  Union  

Government and the PESA Act, 1996 was enacted to give effect to the  

same. The Parliament has conferred such special reservation on account  

of the pivotal role of the Chairperson in a Panchayat. It must have been  

felt that if the Chairperson positions are occupied by non-tribal persons  

in  Scheduled  Areas,  there  is  no  guarantee  that  such  persons  will  

account for the special interests of the Scheduled Tribes.

16. While enacting the Fifth Schedule, the Constituent Assembly was of  

the  view that  the  subjection  to  normal  laws  would  have  exposed the  

tribal communities to two dangers in particular. Both arose out of the  

fact  that  they  were  primitive  people,  simple,  unsophisticated  and  

frequently improvident. Firstly, there was a risk of their agricultural land  

being usurped by the more civilized section of the population. This would  

threaten  their  livelihood  and  sustenance  since  the  occupation  of  the  

tribals was for the most part agricultural. Secondly they were more likely  

to be victimized by the ‘wiles of the moneylender’. The primary aim of the  

government policy then was to protect the tribal communities from these  

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two dangers and to preserve their customs. This objective was pursued  

by incorporating special provisions that were to be made applicable to  

these backward areas. The main contention made by the counsels for the  

respondents  is  that  it  is  not  justifiable  to  reserve  all  Chairperson  

positions in Panchayats located in Scheduled Areas in favour of persons  

belonging  to  the  ST  category.  At  this  juncture,  we  must  clarify  that  

Sections 21(B), 40(B) and 55(B) of the JPRA have since been amended to  

confine reservation to the office of Mukhiya (at Gram Panchayat level),  

Pramukh (at Panchayat Samithi level)  and Adhyaksh (at Zila Parishad  

level).

17. The counsel for the respondent had contended that the constitutional  

intention behind Article 243-D is not that of 100 per cent reservation but  

only proportionate reservation and it speaks of rotation of the reserved  

seats.  However,  we  must  emphasize  that  Article  243-M(4)(b)  permits  

‘exceptions and modifications’ in the application of Part IX to Scheduled  

Areas. The respondents have also argued that the maximum reservation  

which is legally permissible is only up to 50 per cent and reliance was  

placed on the decisions of this Court in  Indra Sawhney v.  Union of  

India, (1992) Suppl. (3) SCC 217 and M.R. Balaji v.  State of Mysore,   

(1963) 1 SCC 439.  However, it should be kept in mind that both of these  

decisions  were  given  in  respect  of  reservation  measures  enabled  by  

Article 16 (4) of the Constitution.   

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18. At the outset, we are of the view that the principles of reservation  

which  are  applicable  for  public  employment  and  for  admission  to  

educational  institutions  cannot  be  readily  applied  in  respect  of  a  

reservation policy made by the legislature to protect the interests of the  

Scheduled Tribes by assuring them of majority reservation as well as the  

occupancy of Chairperson positions in Panchayats located in Scheduled  

Areas. This policy broadly corresponds with the past practice wherein the  

Scheduled Areas were administered as per the provisions of  the Fifth  

Schedule to the Constitution and the same was expected to adhere to the  

advice  of  the  Tribes  Advisory  Councils,  which  were  predominantly  

controlled by Scheduled Tribes. By extending the Panchayati Raj system  

to  these  areas,  Scheduled  Tribes  should  not  be  put  in  a  relatively  

disadvantageous position. In the Panchayati Raj system contemplated by  

Part  IX,  the  Scheduled  Tribes  should  have  an  effective  say  in  the  

administration. That is why the Bhuria Committee recommended that all  

Chairperson positions should be reserved in favour of Scheduled Tribes.

19. The Counsel for the respondents also contended that the exclusive  

reservation  in favour  of  Scheduled  Tribes unfairly  limits  the  scope of  

political participation for others and since all the offices of Chairpersons  

are reserved, there is no scope for rotation of seats as contemplated by  

the  third  proviso  to  Article  243-D(4)  of  the  Constitution.  It  was  also  

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pointed out that in some of the Districts notified as Scheduled Areas, the  

Scheduled Tribes are not in a majority. First of all, it is to be remembered  

that the  impugned  reservation  policy  is  applicable  only  to  Scheduled  

Areas  which  were  hitherto  covered  by  the  Fifth  Schedule  to  the  

Constitution.  We  must  make  it  abundantly  clear  that  this  pattern  of  

reservation  has  been  designed  only  for  Scheduled  Areas  which  merit  

such exceptional treatment. In the present case, it should be noted that  

the Scheduled Areas under consideration are restricted only to certain  

Districts in the State of Jharkhand. In some Districts where STs are not  

predominantly in occupation, only certain blocks have been notified as  

Scheduled Areas by themselves. On account of migration of non-tribal  

people in some areas, there may be a relatively lesser proportion of tribal  

population but historically these areas were occupied almost exclusively  

by Tribal people.

20. In the course of the proceedings, our attention was also drawn to a  

Constitution Bench decision reported as R.C Poudyal v. Union of India  

(1994)  Supp.  1  SCC  324,  wherein  the  majority  had  upheld  the  

reservation  of  some  seats  in  the  favour  of  the  Bhutia  and  Lepcha  

communities  in  the  Sikkim  Legislative  Assembly.  In  that  case  the  

majority  had  held  that  even  though  legislative  seats  could  not  be  

ordinarily  reserved  on  the  basis  of  ethnic  and  religious  identity,  an  

exception  could  be  made  in  this  case  on  account  of  the  particular  

historical factors that led to the integration of Sikkim with the Union of  

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India. The judgment in that case does not directly aid the case of either  

side  in  the present  litigation.  However,  the opinions delivered in that  

case did touch on the importance of the ‘one-man, one-vote’  principle  

that  should  be  followed  in  liberal  democracies.  While  this  principle  

entails that there should be parity between the weightage given to the  

votes cast by individuals, the same cannot be enforced to an absolute  

standard. This is because territorial constituencies are of varying sizes  

with regard to the number of voters residing in them. This means that  

there is bound to be some disparity in the weightage accorded to the  

votes cast by individuals across different constituencies. This problem  

exists  in  all  electoral  formats  where  representatives  are  chosen  from  

territorial constituencies. Needless to say the principle of ‘one-man, one-

vote’ cannot be applied in an absolute sense in the context of Panchayat  

elections  in  Scheduled  Areas.  However,  it  is  the  responsibility  of  the  

executive  to  identify  territorial  constituencies  which  have  a  certain  

degree of parity in their population levels. It is of course important to re-

draw  these  constituencies  from  time  to  time,  in  keeping  with  the  

demographic shifts in the concerned area.  

21.  Concerns  were  also  raised  that  in  some  instances  the  notified  

Scheduled Areas include certain blocks in particular districts but do not  

include the remaining blocks of the same districts. This is not a serious  

hurdle  because  it  is  quite  clear  that  the  exceptional  treatment  for  

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Scheduled Tribes will be confined to the blocks that have been notified  

as Scheduled Areas. This means that in the Districts where only some of  

the  blocks  have  been  notified  as  Scheduled  Areas,  the  impugned  

provisions  of  the  JPRA  will  be  applicable  at  the  level  of  Panchayat  

Samitis within the notified area but not at the level of the Zilla Parishad  

for the whole district.  

22. A comparable reservation policy contained in the Madhya Pradesh  

Panchayati Raj Act was challenged in Ashok Kumar Tripathi  v. Union  

of India , 2000 (2) MPHT 193 and the High Court upheld the provision.  

The High Court of Madhya Pradesh held that:

“45. So far as the high percentage of reservation exceeding  50% for members and 100% reservation for Chairpersons in  Scheduled Areas is concerned, it is supportable even on the  touch stone of Article 14 of the Constitution. It is a protective  discrimination permissible on a reasonable classification of  different  sections  of  the  society  into  more  oppressed- backwards and the forwards. The peculiar situation of the  inhabitants of the Scheduled Areas whose conditions have to  be improved to educate them in the local Government, a step  towards an effort to achieve their assimilation in the normal  stream of democratic life at par with the advanced and the  forward sections of the society justifies such classification. In  the Scheduled Areas in reality if an aboriginal has to contest  an election against a member of the forward section of the  society, the contest would be totally unequal as of a weak  and ignorant against wealthy and powerful. In a contest of  this nature the weak and ignorant hardly can get a chance  to become a member and in any case it would be impossible  for  him  to  reach  to  the  helm  of  the  institution  as  Chairperson. If he by chance becomes a Chairperson in the  Panchayat  consisting  of  elected  members  from  advanced  sections of the society and the members are in majority, it  

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would  be  well  nigh  impossible  for  the  Chairperson  of  the  reserved  category  to  effectively  function  and  to  save  his  elected  status.  The  necessity,  therefore,  is  that  the  Chairperson should be from the reserved category so that he  is in a position to effectively function without inhibition and  threat of no confidence motion against him to remove him  from his office. …”    

23. In light of these observations, it is our considered opinion that the  

High Court  of  Jharkhand had erred  in striking down Sections  21(B),  

40(B) and 55(B) of the Jharkhand Panchayat Raj Act which give effect to  

the  second  proviso  of  Section  4(g)  of  the  Panchayats  (Extension  to  

Scheduled  Areas)  Act,  1996.  We  hold  that  in  Panchayats  located  in  

Scheduled Areas, the exclusive representation of Scheduled Tribes in the  

Chairperson positions of the same bodies is constitutionally permissible.  

This is so because Article 243-M(4)(b) expressly empowers Parliament to  

provide for ‘exceptions and modifications’ in the application of Part IX to  

Scheduled Areas. The provisos to Section 4(g) of the PESA contemplate  

certain exceptions to the norm of ‘proportionate representation’ and the  

same  exceptional  treatment  was  incorporated  in  the  impugned  

provisions of the JPRA.  

24.  The  next  point  that  arises  for  consideration  is  whether  it  is  

constitutionally  permissible  to  provide  reservations  in  favour  of  

Scheduled  Castes  (SC),  Scheduled  Tribes  (ST)  and  Other  Backward  

Classes (OBC) that together amount to eighty percent of the seats in the  

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Panchayati Raj Institutions located in Scheduled Areas of the State of  

Jharkhand? The High Court had struck down Sections 17(B)(2), 36(B)(2)  

and 51(B)(2) of the JPRA as unconstitutional by virtue of reasoning that  

reservations  to  the  extent  of  80%  of  the  seats  in  panchayats  were  

excessive, arbitrary and disproportionate, thereby violating Article 14 of  

the Constitution. The Counsels for the respondent had referred to the  

observations of this Court in M.R. Balaji v. State of Mysore, AIR 1963  

SC 649 and Indra Sawhney v. Union of India (1992) Supp 3 SCC 217  

which had prescribed an upper ceiling of 50% for reservation of posts in  

public employment. Reference was also made to a decision of the Patna  

High Court in the case of  Krishna Kumar Mishra v.  State of Bihar,  

AIR 1996 Pat. 112, wherein a similar view had been adopted.

25. Sections 17(B)(1), 36(B)(1) and 51(B)(1) of the JPRA are in conformity  

with the first proviso to Section 4(g) of the PESA Act as 50% of the seats  

in Panchayats located in scheduled areas are reserved in favour of ST  

candidates. The High Court has not struck down these provisions. These  

provisions  contemplate  that  in  Gram  Panchayats,  Panchayat  Samitis  

and Zila Parishads located in Scheduled Areas, the reservation of seats  

for the Scheduled Castes and Scheduled Tribes shall be made on the  

basis  of  the  proportion  of  their  respective  population,  provided  that  

reservation for the scheduled tribes shall not be less than half of the  

total number of seats.  In addition to this, Sections 17(B)(2), 36(B)(2) and  

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51(B)(2)  of  the  JPRA  provide  that  in  Gram  Panchayats,  Panchayat  

Samitis and Zila Parishads located in Scheduled Areas, seats are to be  

reserved  in  favour  of  persons  belonging  to  backward  classes  in  

proportion to their population, so that the aggregate reservations shall  

not exceed 80% of the total number of seats available. By the impugned  

judgment, Section 17(B)(2), 36(B)(2) and 51(B)(2) have been held to be  

unconstitutional  mainly  on  the  ground  that  they  permit  ‘excessive  

reservation’ which violates Article 14 of the Constitution.  This finding of  

the High Court has also been contested before us.

26.  Before  adverting  to  the  contentions  advanced  by  the  appellants’  

counsel, it is useful to refer to the pattern of reservations set out in Part  

IX of the Constitution. Article 243-D is reproduced below:-

“Article  243-D.  Reservation  of  Seats.  -  (1)  Seats  shall  be  reserved for –  

(a) The Scheduled Castes; and (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 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  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.

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(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 be filled  by  direct  election  in  every  Panchayat  shall  be  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 the  village or any other level shall be reserved for the Scheduled  Castes, the Scheduled Tribes 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  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:

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  this  clause  shall  be  allotted  by  rotation  to  different  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 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 Panchayats at any  level in favour of backward class of citizens.”

27. It may be noted that under Article 243-D there is a clear mandate for  

the State Legislature to reserve seats for SCs and STs in every panchayat  

and the number of seats so reserved shall bear, as nearly as may be, the  

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same proportion to the total number of seats to be filled by direct election in  

that Panchayat as the population of the SCs or of the STs in that Panchayat  

area bears to the total population of the area under consideration. Article  

243-D(6)  further  states  that  nothing  in  this  Part  shall  prevent  a  State  

Legislature  from  making  any  provision  for  reservation  of  seats  in  any  

Panchayat  or  offices  of  Chairpersons  in  the  Panchayats  at  any  level  in  

favour of backward class of citizens. There was no contention on behalf of  

the petitioners before the High Court that the members of backward class  

were not entitled to get reservation in the scheduled area. With respect to  

scheduled castes, the State was bound to provide reservation to them even  

in the Scheduled Areas. As already noticed, under the PESA 50% of the  

seats in Gram Panchayats, Panchayat Samitis and Zila Parishads should be  

reserved in favour of schedule tribes and the ceiling is fixed to the extent  

that this reservation put together shall not exceed 80% of the total seats.  

The contention of the respondents is that this policy will  lead to reverse  

discrimination  against  persons  who are  not  eligible  for  such reservation  

benefits.  It  may  be  noticed  that  this  reservation  policy  is  exclusively  

applicable  to  scheduled areas  which had hitherto  been the  subject  of  a  

separate  administrative  scheme  under  the  Fifth  Schedule  of  the  

Constitution.    

28. It  is a well-accepted premise in our legal system that ideas such as  

‘substantive  equality’  and  ‘distributive  justice’  are  at  the  heart  of  our  

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understanding of the guarantee of ‘equal protection before the law’.  The  

State can treat unequals differently with the objective of creating a level-

playing field in the social, economic and political spheres. The question is  

whether ‘reasonable classification’ has been made on the basis of intelligible  

differentia  and  whether  the  same  criteria  bears  a  direct  nexus  with  a  

legitimate  governmental  objective.  When  examining  the  validity  of  

affirmative  action  measures,  the  enquiry  should  be  governed  by  the  

standard of proportionality rather than the standard of ‘strict scrutiny’. Of  

course, these affirmative action measures should be periodically reviewed  

and various measures are modified or adapted from time to time in keeping  

with the changing social and economic conditions. Reservation of seats in  

Panchayats is one such affirmative action measure enabled by Part IX of the  

Constitution.   

29. The Statement of Objects and Reasons appended to the Constitution  

(Seventy  Second  Amendment)  Bill,  1991  which  was  enacted  as  the  

Constitution (Seventy Third Amendment) Act, 1992 reads as follows :-

“Though  the  Panchayat  Raj  Institutions  have  been  in  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  supercessions,  insufficient  representation  of  weaker sections like Schedule Castes, Scheduled Tribes and  women,  inadequate  devolution  of  powers  and  lack  of  financial resources.

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(2) Article 40 of the Constitution which enshrines one of the  Directive Principles of State Policy lays down that the State  shall  take steps to organize 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  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  Panchayat  Raj  Institutions  to  impart  certainty,  continuity  and strength to them.

(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 village and  intermediate level, if any, and to  the offices of Chairpersons  of  Panchayats at such levels;  reservations of seats for  the  Scheduled Castes and Schedule Tribes in proportion to their  population  for  membership  of  Panchayats  and  office  of  Chairpersons in Panchayats at 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  supercession  of  any Panchayat;  disqualifications for membership of Panchayats; devolution  by the State Legislature of powers and responsibilities upon  the Panchayats with respect to the preparation of plans for  economic  developments  and  social  justice  and  for  the  implementation of  development schemes;  sound finance of  the  Panchayats  by  securing  authorization  from  State  Legislature  for  grants-in-aid  to  the  Panchayats  from  the  Consolidated Fund of the State, as also assignments to, or  appropriation  by,  the  Panchayats  of  the  revenues  of  designated  taxes,  duties,  tolls  and  fees;  setting  up  of  a  Finance  Commission  within  one  year  of  the  proposed  amendment  and  thereafter  every  5  years  to  review  the  financial position of Panchayats; auditing of accounts of the  Panchayats; powers of State Legislatures to make provisions  with  respect  to  elections  to  Panchayats  under  the  superintendence, direction and control of the chief electoral  officer of the State; application of the provisions of the said  Part to Union territories; excluding certain State and areas  from  the  application  of  the  provisions  of  the  said  Part;  continuance of existing laws and Panchayats until one year  

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from the commencement of  the proposed amendment  and  barring interference by courts in electoral matters relating to  Panchayats;

(4) The Bill seeks to achieve the aforesaid objectives.”

30. Article 243D of the Constitution, as stated earlier, clearly identifies  

the intended beneficiaries in the form of persons belonging to scheduled  

castes, scheduled tribes, women and other backward class of citizens.  

While introducing the 73rd Amendment Act, the Statement of Objects and  

Reasons clearly contemplated democratic decentralization to pursue the  

legitimate  governmental  objective  of  ensuring  that  the  traditionally  

marginalized  groups should progressively  gain  a  foothold  in local  self  

government. It is in this background that ‘reasonable classification’ is to  

be viewed.

31. 50% of reservation in favour of the STs in Panchayats at all the three  

tiers is clearly an example of ‘compensatory discrimination’ especially in  

view  of  the  fact  that  the  scheduled  areas  under  consideration  were  

completely  under  a  separate  administrative  scheme  as  per  the  Fifth  

Schedule to the Constitution. In fact, 50% of reservation in favour of the  

scheduled  tribes  by  itself  was  not  challenged  before  the  High  Court.  

Therefore, the question that now remains is whether reservation should  

be made in favour of the scheduled castes and backward class for the  

purpose  of  scheduled  areas.  The  Constitutional  mandate  is  that  the  

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scheduled  castes  should be  given  reservation  at  all  the  three  tiers  of  

Panchayats, with regard to the principle of proportionate representation.

32. The Division Bench of the High Court has relied on the precedents  

relating to Article 15(4) and Article 16(4) by drawing an analogy with the  

limits  placed  on  reservations  in  higher  education  and  public  

employment.  We must emphasize that Article  243-D is a distinct and  

independent  constitutional  basis  for  reservation  in  Panchayat  Raj  

Institutions.  This  reservation  cannot  be  readily  compared  to  the  

affirmative action measures enabled by Articles 15(4) and 16(4) of the  

Constitution. Especially on the unviability of the analogy between Article  

16(4)  and  Article  243-D,  we  are  in  agreement  with  a  decision  of  the  

Bombay High Court, reported as  Vinayakrao Gangaramji Deshmukh  

v. P.C. Agrawal & Ors., AIR 1999 Bom 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:  

“… Now, after the seventy-third and seventy-fourth Constitutional  amendments,  the  constitution  of  local  has  been  granted  a  constitutional protection and Article 243D mandates that a seat be  reserved for  the Scheduled Caste  and Scheduled Tribe in  every  Panchayat and Sub-article (4) of the said Article 243D 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 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  

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the public employment, but a separate constitutional power which  directs the reservation in such local bodies. …”   

33. For the sake of argument, even if an analogy between Article 243-D  

and  Article  16(4)  was  viable,  a  close  reading  of  the  Indra  Sawhney  

decision  will  reveal  that  even  though  an  upper  limit  of  50%  was  

prescribed for reservations in public employment, the said decision did  

recognise  the  need  for  exceptional  treatment  in  some  circumstances.  

This 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 exceed 50%.

810. While 50% shall be the rule, it is necessary not to put out of  consideration certain extraordinary situations inherent in the great  diversity of this country and the people. It might happen that in  far-flung and remote areas the population inhabiting those areas  might, on account of their being put of the mainstream of national  life  and in view of conditions peculiar to and characteristical  to  them, need to be treated in a different way, some relaxation in this  strict rule may become imperative. In doing so, extreme caution is  to be exercised and a special case made out.”

34. We believe that the case of Panchayats in Scheduled Areas is a fit  

case  that  warrants  exceptional  treatment  with  regard to  reservations.  

The rationale behind imposing an upper ceiling of 50% in reservations  

for higher education and public employment cannot be readily extended  

to  the  domain  of  political  representation  at  the  Panchayat-level  in  

Scheduled Areas. With respect to education and employment, parity is  

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maintained between the total number of reserved and unreserved seats  

in order to maintain a pragmatic balance between the affirmative action  

measures and considerations of merit. Under Article 15(4) and 16(4) the  

reservation  of  seats  in  favour  of  socially  and educationally  backward  

classes  (SEBC)  is  ordinarily  done  on  the  basis  of  proportionate  

representation  and  an  upper  ceiling  of  50%  allows  for  considerable  

flexibility  in  distributing  the  benefits  of  higher  education  and  public  

employment among a wide range of intended beneficiaries such as the  

Scheduled  Castes  (SC),  Scheduled  Tribes  (ST),  Women  and  Other  

Backward  Classes  (OBC).  However,  the  same  approach  of  providing  

proportionate representation is likely to be less effective in the context of  

reservations for panchayats in scheduled areas. One reason for this is  

the inherent difference between the nature of benefits that accrue from  

access  to  education  and  employment  on  one  hand  and  political  

participation on the other hand. While access to higher education and  

public  employment increases the likelihood of  gradual  socio-economic  

empowerment  of  the  individual  beneficiaries,  involvement  in  local-self  

government is intended as a more immediate measure of protection for  

the  individual  as  well  as  the  community  that  he/she  belongs  to.  

Especially in the context of Scheduled Areas, there is a compelling need  

to safeguard the interests of tribal communities with immediate effect by  

giving  them  an  effective  voice  in  local  self-government.  The  Bhuria  

Committee Report had clearly outlined the problems faced by Scheduled  

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Tribes and urged the importance of democratic decentralisation which  

would empower them to protect their own interests.  

35.  By  reserving  at  least  half  of  the  seats  in  panchayats  located  in  

Scheduled Areas in favour of STs, the legislature has adopted a standard  

of  compensatory  discrimination  which  goes  beyond  the  ordinary  

standards  of  ‘adequate  representation’  and  ‘proportionate  

representation’.  The  standard  of  ‘adequate  representation’  comes into  

play when it is found that a particular community is under-represented  

in  a  certain  domain  and a  specific  threshold  is  provided  in  order  to  

ensure that the beneficiary group comes to be adequately represented  

with the passage of time. For instance in Part IX of the Constitution, the  

reservation in favour of women which amounts to one-third of all  the  

seats in Panchayats is an embodiment of the ‘adequate representation’  

standard.  

36. However, in instances where the Constitution does not specify the  

quantum of reservations, the idea of ‘proportionate representation’ is the  

rule of thumb. As mentioned earlier,  proportionate representation has  

been the controlling idea behind reservations in the context of education  

and  employment  which  have  a  basis  in  Article  15(4)  and  16(4)  

respectively. Even in the context of Panchayati Raj Institutions, Article  

243-M(1)  and  Article  243-M(6)  explicitly  refer  to  ‘proportionate  

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representation’ as the controlling idea behind reservations in favour of  

SCs,  STs  and  Backward  Classes  respectively.  With  respect  to  the  

panchayats located in Scheduled Areas, the flexibility provided by Article  

243-M(4)(b)  has  led  to  the  enactment  of  the  PESA  which  specifies  

‘proportional representation’ as the norm for reservations in favour of the  

intended  beneficiaries,  but  makes  a  departure  from this  standard  in  

order to protect the interests of Scheduled Tribes in particular.  

37.  There is of course a rational basis for departing from the norms of  

‘adequate representation’ as well as ‘proportionate representation’ in the  

present case. This was necessary because it was found that even in the  

areas where Scheduled Tribes are in a relative majority, they are under-

represented  in  the  government  machinery  and  hence  vulnerable  to  

exploitation. Even in areas where persons belonging to Scheduled Tribes  

held  public  positions,  it  is  a  distinct  possibility  that  the  non-tribal  

population  will  come  to  dominate  the  affairs.  The  relatively  weaker  

position of the Scheduled Tribes is also manifested through problems  

such  as  land-grabbing  by  non-tribals,  displacement  on  account  of  

private  as  well  as  governmental  developmental  activities  and  the  

destruction of environmental resources. In order to tackle such social  

realities,  the  legislature  thought  it  fit  to  depart  from  the  norm  of  

‘proportional representation’. In this sense, it is not our job to second-

guess such policy-choices. A similar position was also adopted by the  

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Madhya Pradesh High Court  in  Ashok Kumar Tripathi v.  Union of  

India, 2000 (2) MPHT 193,where Dharmadhikari, J. made the following  

observations (extracted from Para. 36, 37):            

“… To safeguard interests of Scheduled Tribes living in remote or  hilly  areas  or  forests  with  primitive  culture  of  their  own,  the  Constitution envisages formation of Scheduled Areas for them, and  application of laws to them with 'exceptions and modifications', so  that they are able to preserve their culture and occupation and are  not exposed to exploitation by forward classes of Urban Population.  The protective discrimination in favour of such deprived section of  the  Society  can  go  to  the  extent  of  complete  exclusion,  if  the  circumstances  so  justify,  of  advanced  classes  in  Local  Self  Governance  of  Scheduled  areas.  The  main  object  and  purpose  behind such reservations based on population, even in excess of  50% is with a view that the exclusive participation of deprived and  oppressed sections of the Society in Local Self-Government bodies  in  their  areas  is  ensured because in open competition  with the  advanced sections of the Society they can never have any share to  participate in Self-Governance. A close and careful examination of  the  provisions  of  the  Central  and  State  Act,  in  the  light  of  Constitutional  provisions,  shows  that  principle  of  proportionate  representation based on the population of the reserved categories  has been adhered to but only departure has been made from it in  giving them larger share of self-governance by reserving seats for  them as member and in the Scheduled Areas a monopoly of seats  of Chairpersons has been created for them so that they conserve  their culture and way of living.  … For taking a decision on the  policy  of  reservation  as  to  whether  it  is  reasonable  or  unreasonable, the Court has to examine the overall Scheme of the  Constitution  as  envisaged  in  Part  IX  and  IX  A  and  the  corresponding Central and State Legislation brought to implement  it. The aim and object of the reservation policy contained in Part IX  and  IX  A  is  that  the  Backward  and  oppressed  sections  of  the  Society have to be encouraged in the democratic process by giving  them a share of governance which hither-to was denied to them  since the times of British India and after independence. The other  object at the same time is to protect them from urban influences so  that they may be able to conserve their culture and way of life and  are not exposed to exploitation by the advanced or socially  and  economically powerful sections of the society.

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At the Bar it was argued that such excess policy of reservation is  bound to create bad blood between the two classes and would be a  serious  deterrent  to  bring  such  oppressed  classes  into  the  mainstream  of  democratic  life.  There  are  arguments  for  and  against  this.  In  the  matters  of  policy  the  best  judges  are  the  Legislators who are closer to the society and represent them. They  have a study of the society and have advantage of reports based on  sociological surveys made by experts. They better understand the  needs of the society and the various sections forming it. It is not  for this Court to enter into this forbidden arena and lay down a  policy  of  reservation.  The  argument  advanced  on  behalf  of  the  petitioners  only  shows that  the  attitude  of  the  members  of  the  advanced  sections  of  the  society  towards  castes  and  tribes  continues  to  be  more  of  competition  than  compassion.  The  reservation in various walks of life made in their favour for the last  50 years of the independence has not been successful in improving  their socio-economic condition and have not made them effective  participant in the democratic process. The necessity is still felt by  the  legislators  in  making  special  provisions  for  them  in  the  Constitution and the laws to ensure their effective participation at  least in the local self Government institutions as a first step to give  them due share of governance in the Assemblies of the States and  the Parliament. The argument that the policy of reservation would  segregate  them  rather  than  assimilate  them  with  the  common  stream is one for the legislator to consider on the basis of existing  social  situation.  In  the  matters  of  policy,  wisdom of  legislature  cannot be questioned or the policy laid down cannot be upset by  the Court which is ill equipped to deal with the subject.”  

38. Even though there are cogent reasons for the exceptional treatment  

accorded to Scheduled Tribes, there are some other concerns that merit  

consideration.  One  such  concern  is  with  the  very  identification  of  

Scheduled  Areas  in  the  first  place.  It  is  a  common  refrain  that  the  

efficacy  as  well  as  legitimacy  of  affirmative  action  measures  can  be  

questioned if they are not targeted properly. In the present case, it was  

pointed out that the identification of  Scheduled Areas is  done on the  

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basis of census data and the same is collected after intervals of 10 years.  

It  was  urged  that  the  identification  of  Scheduled  Areas  may  not  be  

accurate if it was based on outdated data. Even though we were shown  

data  describing  the  distribution  of  the  population  belonging  to  the  

Scheduled Tribes category in the various districts of Jharkhand (As per  

the 2001 census), it will suffice to say that the identification of Scheduled  

Areas  is  an  executive  function  and  we  do  not  possess  the  expertise  

needed to scrutinize the empirical basis of the same. The data submitted  

before  us  indicates  that  while  the  Scheduled  Tribes  are  indeed  in  a  

majority in some Scheduled Areas, the same is not true for some other  

Scheduled Areas. This disparity is understandable keeping in mind that  

there has been a considerable influx of non-tribal population in some of  

the Scheduled Areas. In this regard, we must re-emphasize the Bhuria  

Committee’s recommendation that persons belonging to the Scheduled  

Tribes should occupy at least half of the seats in Panchayats located in  

Scheduled  Areas,  irrespective  of  whether  the  ST population  was  in  a  

relative minority in the concerned area. This recommendation is in line  

with  the  larger  objective  of  safeguarding  the  interests  of  Scheduled  

Tribes.     

39. The other significant criticism of aggregate reservation amounting to  

80% of  the seats in Panchayats located in Scheduled Areas is that it  

amounts  to  an  unreasonable  limitation  on  the  rights  of  political  

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participation of persons belonging to the general category. 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  present  case,  it  was  urged  that  reservations  

amounting to 80% of the seats in Scheduled area panchayats will have  

the  effect  of  limiting  the  choices  available  to  voters  and  effectively  

discourage  persons  belonging  to  the  general  category  from contesting  

these elections. While the exercise of electoral franchise is an essential  

component of a liberal democracy, it is a well-settled principle in Indian  

law that such rights do not have the status of fundamental rights and  

are instead legal rights which are controlled through legislative means  

(See  N.P.  Ponnuswami’s case,  AIR  1952  SC  64).  For  instance,  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.  Furthermore,  the  

Representation  of  People  Act,  1951  gives  effect  to  the  Constitutional  

guidance  on  the  eligibility  of  persons  to  contest  these  elections.  This  

includes grounds that render persons ineligible from contesting elections  

such as that of a person not being 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.  

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40. In the context of reservations in Panchayats, it can be reasoned that  

the limitation placed on the choices available to voters is an incidental  

consequence of the reservation policy. In this case, the compelling state  

interest  in  safeguarding  the  interests  of  weaker  sections  by  ensuring  

their  representation  in  local  self-government  clearly  outweighs  the  

competing interest  in not  curtailing  the choices available  to voters.  It  

must also be reiterated here that the 50% reservations in favour of STs  

as contemplated by the first proviso to Section 4(g) of the PESA were not  

struck  down in  the  impugned  judgment.  Even  though  it  was  argued  

before this Court that this provision makes a departure from the norm of  

‘proportionate  representation’  contemplated  by Art.  243-D(1),  we  have  

already  explained  how  Art.  243-M(4)(b)  permits  ‘exceptions  and  

modifications’ in the application of Part IX to Scheduled Areas. Sections  

17(B)(1),  36(B)(1)  and  51(B)(1)  of  the  JPRA  merely  give  effect  to  the  

exceptional treatment that is mandated by the PESA.  

41. However, in addition to the 50% reservations in favour of Scheduled  

Tribes, the State of Jharkhand is also under an obligation to account for  

the  interests  of  Scheduled  Castes  and  Other  Backward  Classes.  The  

same has been contemplated in Sections 17(B)(2), 36(B)(2) and 51(B)(2) of  

the  JPRA  which  incorporate  the  standard  of  ‘proportionate  

representation’ for Scheduled Castes and Backward Classes in such a  

manner that  the total  reservations do not exceed 80%. This  does not  

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mean that reservations will reach the 80% ceiling in all the Scheduled  

Areas. Since the allocation of seats in favour of Scheduled Castes and  

Backward  Classes  has  to  follow  the  principle  of  proportionality,  the  

extent of total reservations is likely to vary across the different territorial  

constituencies identified for the purpose of elections to the panchayats.  

Depending on the demographic profile of a particular constituency, it is  

possible that the total reservations could well fall short of the 80% upper  

ceiling. However, in Scheduled Areas where the extent of the population  

belonging to the Scheduled Castes and Backward Classes exceeds 30%  

of the total population, the upper ceiling of 80% will become operative.  

42. Irrespective of such permutations, the legislative intent behind the  

impugned provisions of the JPRA is primarily that of safeguarding the  

interests of persons belonging to the Scheduled Tribes category. In light  

of  the  preceding  discussion,  it  is  our  considered  view  that  total  

reservations  exceeding  50%  of  the  seats  in  Panchayats  located  in  

Scheduled Areas are permissible on account of the exceptional treatment  

mandated  under  Article  243-M(4)(b).  Therefore,  we  agree  with  the  

appellants and overturn the ruling of the High Court of Jharkhand on  

this limited point.  

43.  Dr.  M.P.  Raju,  learned  counsel  appearing  for  one  of  the  

Respondents, contended that Jharkhand Panchayat Raj Act should not  

have been extended to the ‘Scheduled Area’ as the Scheduled Tribes were  

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enjoying more powers under the Fifth Schedule to the Constitution.  The  

learned  Counsel  contended  that  if  those  provisions  are  held  to  be  

unconstitutional as held by the High Court, it would be better to revert to  

the system of Tribes Advisory Councils under the Fifth Schedule. We do  

not find much force in the contention and it is only to be rejected.

44. In the result, the appeals filed by the Union of India are allowed and  

the proviso to Section 4(g) of PESA Act and Sections 21(B), 40(B) and  

55(B)  of  Jharkhand  Panchayat  Raj  Act,  2001  are  held  to  be  

constitutionally valid. We also hold that Sections 17(B)(2), 36(B)(2) and  

51(B)(2) of the Jharkhand Panchayat Raj Act, 2001 are constitutionally  

valid provisions.

45.  The other  appeals  are  also disposed of  accordingly  and the State  

Election Commission of the State of Jharkhand is directed to conduct  

elections for the Panchayati Raj Institutions (PRIs) as early as possible.

……………………………….CJI (K.G. BALAKRISHNAN)

……………………………………J. (P. SATHASIVAM)

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……………………………………J. (J.M. PANCHAL)

New Delhi January 12, 2010.

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