Karnataka HC Upholds Validity Of Amendment To KTTP Act Allowing Reservation For SC/ST Category In Public Works Tender Process [Read Judgment]

Justice B Verrappa while dismissing the petition filed by Vishwanath H M who had sought to declare the amendment as ultra vires of Constituton and be quashed said "Centuries of calculated oppression and habbitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. Therefore the impugned amendments brought no way prejudice the case of the petitioner nor vitiate the Fundamental rights guranteed under Part III of the Constitution of India."

Case background:

KTPP Act came into force w.e.f 4.10.2000. Intended to streamline procedure in public procurement and also ensure accountability in public procurement. The State Government, while making it mandatory for all the procurement agencies under the Government to follow the tendering process in public procurement. The provisions of Section-6 of the KTPP Act, 1999 specifies that no tender shall be invited, processed or accepted by a Procurement Entity after the commencement of this Act except in accordance with the procedure laid down in this Act or the Rules made thereunder. the provisions of As per the amendment Section – 6 of the KTPP Act by the Karnataka Transparency in Public Procurements (Amendment) Act, 2016 and also Rule 27(A) in the KTPP Rules by the Karnataka

Transparency in Public Procurements (Amendment) Rules-2017, as a result of which certain reservation is created in the process of Tender, for the benefit of Scheduled Caste and Scheduled Tribe categories. In terms of the amendment, the Tender Inviting Authority has to reserve 17.15% of the works to the Scheduled Castes category and 6.95% of works to the Scheduled Tribes Category in the construction works, value of which does not exceed Rs.50,00,000. Therefore, the petitioner is before this Court challenging the said amendments.

Petitioner argued:

The Constitution of India while making reservation provided social, economic and educational & cultural safeguards to the Scheduled Caste and Scheduled Tribe categories under Articles 17, 46 and 15(4) of the Constitution of India respectively. It is also contended that Articles 243D, 243T, 330 and 332 of the Constitution of India provided the political safeguards and Articles 16(4), 16(4A) and 16(4B) provided the service safeguards and Article 164 provided other safeguards to the Scheduled Caste and Scheduled Tribe categories. In view of Article 19(1)(g) of the Constitution of India, every citizen has a right to practice any profession, or to carry on any occupation, trade or business. The amendment brought by the respondents violate Article 19(1)(g) of the Constitution of India and therefore, deserves to be struck down as ultra vires of the Constitution of India.

The amendment brought is in violation of the fundamental rights and does not confirm to constitutional principles and is discriminatory. The amendment is arbitrary and hence violative of Article 14 of the Constitution and it has to be struck down as ultra vires of the Constitution on the ground of arbitrariness or discrimination. State opposed the petition by arguing:

The petition is not maintainable either in law or on facts and the same is liable to be dismissed. It is further stated by the respondents that the Legislation based on the principles of distributive justice, protect the interests of weaker sections of the people, in particular, Scheduled Castes and Scheduled Tribes under the provisions of Article 46 of the Constitution of India. Article-46 empowers the State to promote with special care, the economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes and protect them from social injustice and all forms of exploitation. It is further contended that the impugned Legislation is brought to minimize in-equalities, distributive its largess to the weaker sections and to make socio-economic justice a reality and meaningful to make life worth living with dignity. The State is entitled to legislate for upliftment of Scheduled Castes and Scheduled Tribes. Moreover, it was said that providing reservation in Government contracts to the persons belonging to Scheduled Castes and Scheduled Tribes would also achieve the constitutional objectives of rendering socio-economic justice, which in turn improve their economic status, so that their economic development is improved.

Intervenors supporting the amendements argued that "It is well settled that reservations in education and other walks of life can be provided under Article 15(4) just as reservations can be provided in services under Article 16(4) of the Constitution of India. if so, it would not be correct to confine Article 15(4) to programmes of positive action alone. Article 15(4) is wider than Article 16(4) inasmuch as several kinds of positive action programmes can also be evolved and implemented thereunder (in addition to reservations) to improve the conditions of SEBCs., Scheduled Castes and Scheduled Tribes, whereas Article 16(4) speaks only of one type of remedial measure, namely, reservation of appointments/posts."

Further, it was said that Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, dalits and tribes. The court framed two points for determination

1: Whether the impugned Karnataka Transparency in Public Procurements (Amendment) Act, 2016 (Karnataka Act No.31/2017) inserting proviso to Section-6 of the KTPP Act as per Annexure-A and the impugned Karnataka Transparency in Public Procurements (Amendment) Rules, 2017 inserting Rule 27(A) in the KTPP Rules as per Annexure-B reserving not exceeding 17.15% to the tenderers belonging to the Scheduled Castes category and not exceeding 6.95% to the tenderers belonging to the Scheduled Tribes category, in the construction of works, value of which does not exceed Rs.50,00,000/-, are justified ?

2: Whether the impugned amendments are in utter violation of Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India ?

The court on consideration of the arguments answered the first point in the affirmative. It said "the reservation shall apply only for education, employment and not in any other subjects including the Tender process and there cannot be any reservation for the Scheduled Castes and Scheduled Tribes in the Tender process and Part-III of the Constitution does not provide such reservation for Scheduled Castes and Scheduled Tribes and therefore, the impugned reservation is in utter violation of the provisions of Articles 14, 15(1), 16(1) and 19(1)(g) of the Constitution of India. Though the argument appears to be attractive, this Court is not in a position to accept the same as the impugned reservation not abrogates or abridges rights guaranteed by Part-III of the Constitution (Articles 12 to 35) and not violative of doctrine of basic structure.

Equal status to be provided to those communities which are backward and depressed and on whom injustice has been perpetrated for thousands of years so that the country may progress and so that many parties in the country may not mislead the poor. Toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people from the villages to compete with city people is asking a man on bicycle to compete with another on a motorcycle, which in itself as absurd. Therefore, the contention of the learned senior counsel for the petitioner cannot be accepted.

The 1st point raised in the present writ petition is answered in the affirmative holding that the impugned Karnataka Transparency in Public Procurements (Amendment) Act, 2016 (Karnataka Act No.31/2017) inserting proviso to Section 6 of the KTPP Act as per Annexure-A and the impugned Karnataka Transparency in Public Procurements (Amendment) Rules, 2017 inserting Rule 27(A) in the KTPP Rules as per Annexure-B reserving not exceeding 17.15% to the tenderers belonging to the Scheduled Caste category and not exceeding 6.95% to the tenderers belonging to the Scheduled Tribes category, in the construction works, value of which does not exceed Rs.50,00,000/-, are justified. The 2nd point is answered in the negative holding that the impugned amendments are not violative of Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India and are reasonable and in consonance with the right and spirit of the Constitution of India.

Senior advocate S M Chandrashekar along with advocate H Pavana Chandra Shetty appeared for petitioner.

Additional Advocate General R Natraj along with Advocate Niloufer Akbar appeared for state government.

Senior advocate Prof Ravivarma Kumar, Advocate Manjunatha Advocate Mohan Kumar appeared for intervenors.

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