Puducherry Local Body Elections: Madras High Court To Decide If Reservation For Backward Classes Is Mandatory

"The issue to be addressed here is if it's mandatory for the state to provide reservation in elections for Backward Classes. The senior Counsel for the state has also said that Articles 243-(D)(6) and 243-(T)(6) which deals with reservation for Backward classes is an enabling provision unlike the mandatory nature of reservation for Scheduled Castes and Scheduled Tribes given in other clauses."

Article 243(T) (6) of the Constitution reads as below:

"Nothing in this Part shall prevent the Legislature of a 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."

Three petitions have been filed before the High Court by R Siva, the Opposition Leader in Puducherry Legislative Assembly; J Prakash Kumar, an Independent MLA and V Velmurugan, a resident of Puducherry, challenging the Puducherry Government Orders and State Election Commission Notification opting out reservation for BC and ST in the upcoming elections.

In October this year, the Court had stayed the poll process.

Yesterday, it was contended by the petitioners that the procedure for ascertaining the seats allotted to Scheduled Castes must be followed for Backward Classes as well. Not doing so will violate Section 9 (8) and 11 (8) of the Puducherry Municipalities Act, 1973 and Puducherry Village and Commune Panchayats Act, 1973 along with the constitutional provisions, they argued.

The senior counsel for the Union Territory, Vijay Narayan, replied that the number of seats for SC & ST are reserved as per Article 243 (D) (1) and Article 243 (T) (1) in Panchayats and Municipalities respectively, based on the proportion of their population.

However, relying on K. Krishna Murthy & Ors vs Union Of India & Anr (2010), the counsel asserted that Article 243 (T) (6) was merely an enabling provision and the UT of Puducherry is well within its rights to avoid earmarking constituencies for Backward Classes. He added that the government intends to provide reservation to BC, though it may not be practical this time due to time constraints.

Citing the observations in the apex court judgment, the counsel also submitted that a blanket approach of granting reservations to those belonging to backward classes was not desirable.

He submitted that economic backwardness or social backwardness need not be conflated with political backwardness.

"The Supreme Court has in K. Krishna Murthy noted that social and economic backwardness does not necessarily coincide with political backwardness. The State Governments were advised to reconfigure their reservation policies, wherein the beneficiaries under Art. 243-D(6) and 243-T(6) need not necessarily be coterminous 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)]", submitted the counsel.

Further, the counsel quoted an excerpt from the judgment:

"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 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."

The counsel argued that the said judgment held that the identification of 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. Hence, it was the State's submission that independent commissions may be appointed to determine political backwardness.

With regards to quantum of BC reservation, the upper zone of fifty percent vertical reservation for SCs/ STs/OBCs must not be breached along with the horizontal reservation for women which is applied separately for each vertical category, it was submitted. The recent Supreme Court judgment in Vikas Kishanrao Gawali v. State of Maharashtra & Anr (2021) also agrees with the Krishnakumar judgment and ceiling of reservation, added the counsel.

The court opined that ascertaining the parameters of political backwardness and collecting adequate empirical date would be a herculean task.

At this juncture, the counsel submitted that preliminary steps for the appointment of such a commission was underway. He also added that in many issues like Reservation in Promotions and Reservation in Government Jobs, committees were constituted after Supreme Court issued guidelines and it wasn't under any specific statute.

Citing the practical difficulties, the court asked the counsel if the principle of political backwardness test applies to SCs/STs as well. The counsel observed that since there are explicit provisions in the Constitution for the same, there was no such requirement.

On the court's opinion that there can hardly be two criteria for SC/ST & OBCs and even if that's the apt criteria, it will take years, the counsel noted that no reservation for OBCs in Elections exist in any of the State statutes, though it can be found in employment matters.

The senior counsel once again cited the judgment in Vikas Kishanroa and said:

"Be that as it may, it is indisputable that the triple test/conditions required to be complied by the State before reserving seats in the local bodies for OBCs has not been done so far. To wit, (1) to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and (3) in any case such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together", the reservation to OBCs without fulfilling this triple test won't be justifiable according to the Senior Advocate.

The Senior Counsel for Union Territory also pointed out that the initial election commission notification for local body election in UT of Puducherry was struck down by the High Court on 5^th October citing anomalies in the pattern of reservation, pertaining to the rotation of seats, for Scheduled Castes.

He also clarified that the intention of the Puducherry Government is to provide reservation to BC, though it may not be practical due to the time constraints for this election.

At this juncture, the court inquired if Scheduled Tribes in Union Territory have been identified.

The counsel responded that there have been no Scheduled Tribes that usually reside within the Union Territory. However, in 2016, Irulars (including Villi and Vettaikaran), was notified as a Scheduled Tribe within the Union Territory. The counsel submitted that they have been predominantly gypsies and as per the unofficial reports, there are almost 2,000 Irulas in Pondicherry.

The state counsel also added that the vacancies for SCs/ STs are to be determined on the basis of census as per Article 243. According to the 2011 Census, there weren't any Scheduled Tribes in Puducherry. Since the 2021 Census didn't take place due to the pandemic, Seats cannot be reserved for them.

Case Title: R. Siva v. Union Territory of Puducherry & 5 Ors. & Connected Matters

Case No: WP Nos. 22288/ 2021 (PIL)