Puducherry Local Body Polls: Madras HC Grants Liberty To Approach Supreme Court On Reservation For Backward Classes, Scheduled Tribes

The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu however extended the stay on conducting elections by two weeks, granting liberty to the petitioners to approach the Supreme Court in this regard. "Interim Order passed by the High Court staying the conduct of elections on 5th October, 2021 will continue for two weeks from today," the Court said.

Significantly, the Supreme Court is already seized of a matter pertaining to the expeditious completion of local polls in Puducherry. Previously, the Supreme Court had directed the Election Commission and Union Territory Administration to complete the delimitation exercise in two months and hold the elections in the next four months after that.

Courtroom Exchange

Senior Counsel Vijay Narayan appearing for the UT, informed the court that the government is willing to grant reservation to Backward Classes and will soon appoint a Commission to determine their political backwardness.

"The constitutional bench judgment was in 2010. Why was no initiative taken to appoint an independent commission back then?", the court enquired.

"Supreme Court has given a strict directive to conduct the elections expeditiously. We have nothing against reserving seats for Backward classes. However, the Constitutional mandate to conduct elections every five years cannot be done away with or disregarded. Alternatively, you can approach the Supreme Court where the matter is currently being heard. Our hands are tied, ", the court added.

Senior Advocate P. Wilson, appearing for the opposition leader of Puducherry Legislative Assembly, one of the petitioners, told the Court that empirical date on Backward classes have been available with Ministry of Social Justice And Empowerment. Reliance was placed on Chief Secretary, Government of Puducherry v. J. Anand Lakshmi & Ors,(2018).

"The constitutional bench judgement is clear about political backwardness and triple test. As far as Census is concerned, it cannot be used for determining political backwardness, the parameters of which must be ascertained by the Independent Commission constituted for the same. Unlike reservations made for employment or education, the data we have with us so far can't be used for determining political backwardness. Empirical data can be collected only when the parameters of political backwardness is determined", the court responded.

The Bench also made clear that it was a pre-requisite to abide by the triple test formulated by the Supreme Court in the case: i.e., i) Constitution of an independent commission to conduct an empirical enquiry into the nature and implications of backwardness, 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.

Wilson then contended that as per Articles 243 (D) (1) and 243 (T) (1) of the Constitution, SC/ ST reservation is mandatory in respect of Panchayats and Municipalities.

He also pointed out that Backward Classes were given 33.5% reservation and Scheduled Tribes could avail 0.5% under the 2019 notification (which was later withdrawn). Such withdrawal of the notification was without respect to the constitutional provisions including Article 243 and the Supreme Court Guidelines, he argued.

However, the Bench was of the opinion that the 2019 GO was rightly withdrawn, taking into account the mandate of the constitutional bench in K. Krishnamurty. The said judgment laid down that economic backwardness or social backwardness need not be conflated with political backwardness.

Regarding the Scheduled Tribes enumeration, the court observed that the impediment was due to the postponement of 2021 Census due to the pandemic. Given that the 2011 Census does not give details about Scheduled Tribes in Puducherry, reservations for Scheduled Tribes cannot be provided reservation under Article 243.

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

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

Click Here To Read/ Download Order