'Do Not Notify Puducherry Local Body Elections': Madras High Court Directs Election Commission

The petitioner, represented by Senior Advocate P Wilson, submitted that the impugned Government orders were ultra vires to the constitution and other Statutes governing Local Body Elections in the Union Territory of Puducherry.

Tracing the history of the reservation, the petitioners submitted that pursuant to Articles 243D (1) & (6) and 243T (1) and (6) of the Constitution of India, providing Reservation of Seats for various officers and chairpersons in Local Bodies namely Municipalities and Panchayats at all levels and pursuant to Section 9(8) and 11(8) of The Puducherry Municipalities Act,1973 and The Puducherry Village and Commune Panchayats Act,1973 respectively; and Pursuant to a Presidential Order viz., "The Constitution (Puducherry) Scheduled Tribes Order,2016" [G.S.R.1167 (E)] on 22.10.2016 the Government of Puducherry had notified the earlier orders providing for Reservation for Backward Class - 33.5% and Schedule Tribes - 0.5% in elections to various posts in Municipalities and Panchayats at all Levels respectively. It was also highlighted that these provisions providing for reservation and the quantum of reservation was never challenged.

The petitioner submitted that elections for the Local Bodies were notified on 22.09.2021 and the same was challenged on the ground of anomalies. During the hearing of the petitions, the State Election Commission sought leave for withdrawal of the notification followed by the issuance of a fresh Notification. As a result, the Court had accorded permission for withdrawal with further direction to issue fresh notification within 5 days from the withdrawal of earlier notification after removal of anomalies pointed out in the said Writ Petition. The petitioner pointed out that the court never directed the withdrawal of Government Notifications providing for reservations.

The petitioner also informed the court that the Government of Puducherry, with an intention to continue the provision of reservation of seats for the OBC category in the Local Body Elections, has constituted a commission under the Chairmanship of Justice K.K Sashidharan, Retired High Court Judge, to identify the political backwardness of communities and to recommend for provision of reservation of seats for such identified category.

The petitioners submitted that the Reservation of seats for the OBC category falls within the domain of Entry 5 of List II and thus the powers are conferred on the State Government. When the State Government intends to continue reservation of seats for politically backward classes and has constituted a committee to overlook the same, the act of the State Election Commission in notifying Local Body Elections for Municipalities and Commune Panchayats within the Union Territory of Puducherry without providing for reservation offends democracy.

The petitioner raised the following grounds for challenge

1. Violation of Constitutional Provisions: The withdrawal of reservation for Scheduled tribes, despite the identification of the existence of such scheduled Tribes within Union territory of Puducherry followed by notification under above mentioned 2016 precedential order, stands as infraction of Constitutional mandate under Section 243D (1) and 243T(1) which provides for Reservation of Seats in Municipalities and Panchayats for Scheduled Tribes proportional to the population as a matter of rule rather than as choice.

2. Violation of Statutory Provisions: The withdrawal of reservation for the Backward Class stands in the violation of Constitutional mandates 243D(6) and 243T(6) and Statutory mandates enshrined under The Puducherry Municipalities Act,1973 and The Puducherry Village and Commune Panchayats Act,1973 respectively

3. Impugned Notification is antithesis to Article 14: The withdrawal of reservation is antithesis to social justice which in turn is antithesis to equality as enshrined under Article 14 of the Constitution of India. Having identified the Backward Class people in the last preceding census, the State cannot abandon its duty of providing reservation securing interests of those weaker sections of the society and such dereliction constitutes breach of Fundamental Rights of those people.

4. Infraction of Administrative Setup Provided Under the Constitution & Other Allied Laws: The impugned notifications were issued without any intervention by Council of Ministers and therefore the element of aid and advice by Council of Ministers remained completely absent while issuing the impugned Notifications and such exercise stands infracting administrative set up as provided under Article 239, 239A of Constitution, Section 44 of Government of Union Territories Act, Rules 4 (1), 9, 10, 11 of Rules of Business of Government of Puducherry, 1963 read with item 9 &19 of Schedule appended thereto and therefore, the impugned notification are liable to be interfered with on this score.

5. Impugned notifications suffers from malafides: The petitioner also submitted that the withdrawal of reservation stands in violation of interim order dated 13.12.2012 made in WP.No.30477 Of 2012, pursuant to which the above mentioned reservations was originally provided.

Case Title: R. Siva v. Union Territory of Puducherry and others

Case No: WP No. 12115 of 2022