Civil Misc. Writ Petition No.46821 of 2010. Case: Pradeshiya Jan Jati Vikas Manch, U.P. and Ors Vs State. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition No.46821 of 2010 |
| Counsel | For Appellant: L.P. Singh, P.K. Kashyap and Vivek Saran, Advs. and For Respondents: Satish Chaturvedi, Additional Advocate General, assisted by Y.S. Bohra and Dr. Y.S. Srivastava, Advs. |
| Judges | Sunil Ambwani, J. and Kashi Nath Pandey, J. |
| Issue | Constitution of India - Articles 243D, 342 |
| Citation | AIR 2011 All 1 |
| Judgement Date | September 16, 2010 |
| Court | High Court of Allahabad (India) |
Judgment:
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The question in this case turns on, 'whether the persons shifted from the list of notified Scheduled Castes to the notified list of Scheduled Tribes, under the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 2002 (Act No. 10/2003), under Article 342 of the Constitution of India, can be deprived of their constitutional rights under Article 243-D, of proportional representation in Panchayat elections, on the ground, that their numbers for giving them representation for reservation in the seats of Chairpersons of village panchayats is not available with the State Government, from the Census 2001 figures; and whether any other empirical data can be relied upon to fulfil the constitutional mandate.'
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We have heard Shri L.P. Singh; Shri P.K. Kashyap and Shri Vivek Saran for the petitioners. Shri Satish Chaturvedi, Additional Advocate General assisted by Shri Y.S. Bohra and Dr. Y.S. Srivastava for the respondents.
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'Pradeshiya Jan Jati Vikas Manch' a social service organization through its president Shri Munshi Prasad Gond, and ' Adiwasi Vikas Samiti' through its Secretary Shri Shrawan Kumar Gond, have filed these writ petitions in public interest for giving the ten castes and seven sub-castes excluded from the Scheduled Castes, and included in the Scheduled Tribe by Act No. 10/2003, for which necessary Government Order was issued on 3.7.2003, the proportional representation due to them under Article 243 D of the Constitution of India. They have also prayed for quashing the order dated 3.6.2010 passed by the Chief Secretary, Government of U.P. on the representation made by them in pursuance to the directions issued by this Court on 21.4.2010 in Writ Petition No. 20380/2010 to provide reservation in the panchayat elections at 2%, instead 0.06% in respect of the 13 districts as per population shown in Census 2001; for directions to the State Government to rely upon the empirical data collected by the Directorate of Scheduled Castes and Scheduled Tribes, New Delhi (if such data is not available in the Census 2001), and also for a writ of mandamus to provide reservation to the Scheduled Tribes on the basis of the Census 2001.
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Shri Amartya Sen, in his celebrated work The Idea of Justice' Part IV 'Public Reasoning and Democracy': 16. The Practice of Democracy' p.348, writes:-
'Furthermore, we have to go beyond economic growth to understand the fuller demands of development and of the pursuit of social welfare. Attention must be paid to the extensive evidence that democracy and political and civil rights tend to enhance freedoms of other kinds (such as human security) through giving a voice, at least in many circumstances, to the deprived and the vulnerable. That is an important issue, and closely linked with democracy's role in public reasoning and in fostering 'Government by discussion'.
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The writ petitioners have claimed their constitutional right of representation to enhance their freedoms guaranteed to them by the Constitution of India, by the 73rd Amendment.
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Brief facts giving rise to this writ petition are that after the bifurcation of the State of Uttar Pradesh by U.P. State Reorganization Act, 1999, the majority of Scheduled Tribes residing in the State of Uttranchal, were separated, reducing the number of their castes in the State of UP to five, and their population in the State of UP, according to Census 2001, at 0.06%. Their population in the State of Uttranchal (now Uttrakhand) increased from 2%, in the undivided State, to 3%.
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Article 342 of the Constitution of India provides for Scheduled Tribes. The President may in respect of any State or Union territory after consultation with the Governor by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State. The Scheduled Castes and Scheduled Tribes Order (Presidential Order), included five castes as Scheduled Tribes in the State of Uttar Pradesh. Their population in Census 2001, and in the Government order dated 6.6.2005, issued for providing reservation to Scheduled Castes and Scheduled Tribes in Gram Panchayats, Kshetra Panchayats and Zila Panchayats was calculated at 107963 (0.06%) for the posts of Chairpersons (Pradhan) of Gram Panchayats. The Government Order dated 6.6.2005 for reservations in Panchayat elections 2005, identified 52006 seats for Pradhans, out of which the number of seats allocated for Scheduled Castes at 21.15% population was worked out at 10999. For Scheduled Tribes at 0.06% population on the basis of the five castes, included in the Presidential Order, the number of seats of Pradhans were worked out at 34. One-third of these, according to Article 243D, were reserved for the women, in the same proportion.
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The Parliament passed Scheduled Castes and Scheduled Tribes (Amendment) Act, 2002 (Act No. 10/2003), taking out ten castes from the list of 66 Scheduled Castes, and added them in the list of Scheduled Tribes. The State Government issued a consequential Government Order dated 3.7.2003, including these ten castes, which were earlier included in the list of Scheduled Castes in the list of Scheduled Tribes relating to particular districts in the State of U.P. A list of these castes given in the Government order dated 3.7.2003 is as follows:-
(Vernacular matter omitted.... Ed.)
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It is important to note here that these castes were notified in respect of specified districts only, as their population is concentrated on the basis of the empirical data, which must have been collected, only in these districts.
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Part IX and IXA were inserted in the Constitution of India providing for the Panchayats and Municipalities, by Constitution (Seventy-third Amendment) Act, 1992 to give effect to one of the directive principles of the State policy namely Article 40 of the Constitution to confer certain powers of local self-Government. It promises the duration of five years, for free and fair elections with representation of Scheduled Castes and Scheduled Tribes in the administration of institutions of local self-Government without any interference of other organs of the State. The historical 73rd Amendment brought into force on 24.4.1993, provided representation of the people in local governance at the gross root level, to empower them. The idea was to allow the people to participate in their welfare and development. Article 243-D provides and enables for the reservation of seats for Scheduled Castes and Scheduled Tribes, and mandates that in every panchayat 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 and by 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.
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Article 243(f) of the Constitution of India defines population as follows:-
"243(f) 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published'.
Article 243D provides:-
243D. 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.
(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...
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