# 1 S.C.R. 483 UNION OF INDIA ETC v. RAKESH KUMAR AND ORS., ETC - **Citation:** [2010] 1 S.C.R. 483 - **Court:** Supreme Court of India - **Decided:** 2010-01-12 - **Case number:** Civil Appeal Nos. 484-491 of 2006 - **Bench:** K.G. Balakrishnan, P. Sathasivam, J.M. Panchal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-483-union-of-india-etc-v-rakesh-kumar-and-ors-etc-26598 - **Pages:** 49 ## Headnote Constitution of India, 1950: Articles 14, 243-D and 243-M(4)(b) - Panchayats in Scheduled Areas - Section 4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and ss. 17(8)(2), 21(8), 36(8)(2), 40(8), 51(8)(2) and 55(8) A B c of the Jharkhand Panchayat Raj Act,2001 providing for 0 reservation of 50% of total seats in Panchayats and reservation of posts of Chairpersons at all level in Panchayats in Scheduled Areas for Scheduled Tribes - HELD: Constitutionally valid - Reservation of 50% seats in favour of Scheduled Tribes in Scheduled Areas at all the three tiers is clearly an example of 'compensatory discrimination' as E these areas were completely under a separate administrative scheme as per Fifth Schedule to the Constitution - The provisions laying down that reservation not to exceed 80% of total seats in Panchayats in case of reservation provided to backward class proportionate to their population in Scheduled F Areas if combined with seats reserved for Scheduled Tribes and Scheduled Castes, are also constitutionally valid - Total reservations exceeding 50% of seats in Panchayats in Scheduled Areas are permissible on account of exceptional treatment mandated under Article 243-M(4)(b) - This would G not amount to unreasonable restriction on rights of political participation of persons belonging to general category - Besides, rights to exercise electoral franchise are legal rights, subject to control through legislative means - Provisions of 483 H 484 SUPREME COURT REPORTS [201 O] 1 S.C.R. A the Panchayats (Extension to the Scheduled Areas) Act, 1996 - s.4(g) - Jharkhand Panchayat Raj Act,2001 - ss. 17(8)(2), 21(8), 36(8)(2), 40(8), 51(8)(2) and 55(8) - Committees - Bhuria Committee Report - Social Justice - Election Law. Writ petitions were filed before the High Court 8 challenging the constitutional validity of s.4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the provisions of the .Jharkhand Panchayat Raj Act, 2001. The High Court struck down the second proviso to s.4(g) of PESA and C ss. 21(8), 40(8) and 55(8) of JPRA which provided for reservation for Scheduled Tribes, of posts of Chairpersons at all levels in Panchayats in Scheduled Areas. It also struck down ss.17(8)(2), 36(8)(2) and 51(8)(2) of JPRA, which provided for reservation upto the D extent 80% of seats in Panchayats in Scheduled Areas for Scheduled Tribes, Scheduled Castes and backward class, combined together. Aggrieved, the Union of India and others filed the appeals. E Allowing the appeals, the Court HELD: 1.1. The second proviso to s.4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, and ss. 21(8), 40(8) and 55(8) of the Jharkhand Panchayat Raj Act, 2001 are F constitutionally valid. In Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible. This is so beeause Article 243-M(4)(b) of the Constitution of India expressly G empowers Parliament to provide for 'exceptions and modifications' in the application of Part IX of the Constitution to Scheduled Areas. The provisos to s. 4(g) of the PESA contemplate certain exceptions to the norm of 'proportionate representation' and the same H exceptional treatment was incorporated in the impugned UNION OF INDIA ETC. v, RAKESH KUMAR AND 485 ORS., ETC. provisions of the JPRA. [Para 23 and 44] [531-E; 510-8A D] Janardhan Paswan v. State of Bihar, AIR 1988 Pat 75, distinguished. 1.2. The Panchayati Raj system in Scheduled Areas 8 is a fit case that warrants exceptional treatment with regard to reservation. The principles of reservation which are applicable for public employment and for admission to educational institutions cannot be readily applied in respect of the reservation policy made by the legislature C to protect the interests of the Scheduled Tribes by assuring them of majority reservation as ## Text _Characters 0–39,609 of 89,362. This is a partial read: ask again with offset=39609 for what follows._ [2010) 1 S.C.R. 483 UNION OF INDIA ETC. V. RAKESH KUMAR AND ORS., ETC. (Civil Appeal Nos. 484-491 of 2006) JANUARY 12, 2010 [K.G. BALAKRISHNAN, CJI, P. SATHASIVAM AND J.M. PANCHAL, JJ.] Constitution of India, 1950: Articles 14, 243-D and 243-M(4)(b) - Panchayats in Scheduled Areas - Section 4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and ss. 17(8)(2), 21(8), 36(8)(2), 40(8), 51(8)(2) and 55(8) A B c of the Jharkhand Panchayat Raj Act,2001 providing for 0 reservation of 50% of total seats in Panchayats and reservation of posts of Chairpersons at all level in Panchayats in Scheduled Areas for Scheduled Tribes - HELD: Constitutionally valid - Reservation of 50% seats in favour of Scheduled Tribes in Scheduled Areas at all the three tiers is clearly an example of 'compensatory discrimination' as E these areas were completely under a separate administrative scheme as per Fifth Schedule to the Constitution - The provisions laying down that reservation not to exceed 80% of total seats in Panchayats in case of reservation provided to backward class proportionate to their population in Scheduled F Areas if combined with seats reserved for Scheduled Tribes and Scheduled Castes, are also constitutionally valid - Total reservations exceeding 50% of seats in Panchayats in Scheduled Areas are permissible on account of exceptional treatment mandated under Article 243-M(4)(b) - This would G not amount to unreasonable restriction on rights of political participation of persons belonging to general category - Besides, rights to exercise electoral franchise are legal rights, subject to control through legislative means - Provisions of 483 H 484 SUPREME COURT REPORTS [201 O] 1 S.C.R. A the Panchayats (Extension to the Scheduled Areas) Act, 1996 - s.4(g) - Jharkhand Panchayat Raj Act,2001 - ss. 17(8)(2), 21(8), 36(8)(2), 40(8), 51(8)(2) and 55(8) - Committees - Bhuria Committee Report - Social Justice - Election Law. Writ petitions were filed before the High Court 8 challenging the constitutional validity of s.4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the provisions of the .Jharkhand Panchayat Raj Act, 2001. The High Court struck down the second proviso to s.4(g) of PESA and C ss. 21(8), 40(8) and 55(8) of JPRA which provided for reservation for Scheduled Tribes, of posts of Chairpersons at all levels in Panchayats in Scheduled Areas. It also struck down ss.17(8)(2), 36(8)(2) and 51(8)(2) of JPRA, which provided for reservation upto the D extent 80% of seats in Panchayats in Scheduled Areas for Scheduled Tribes, Scheduled Castes and backward class, combined together. Aggrieved, the Union of India and others filed the appeals. E Allowing the appeals, the Court HELD: 1.1. The second proviso to s.4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, and ss. 21(8), 40(8) and 55(8) of the Jharkhand Panchayat Raj Act, 2001 are F constitutionally valid. In Panchayats located in Scheduled Areas, the exclusive representation of Scheduled Tribes in the Chairperson positions of the same bodies is constitutionally permissible. This is so beeause Article 243-M(4)(b) of the Constitution of India expressly G empowers Parliament to provide for 'exceptions and modifications' in the application of Part IX of the Constitution to Scheduled Areas. The provisos to s. 4(g) of the PESA contemplate certain exceptions to the norm of 'proportionate representation' and the same H exceptional treatment was incorporated in the impugned UNION OF INDIA ETC. v, RAKESH KUMAR AND 485 ORS., ETC. provisions of the JPRA. [Para 23 and 44] [531-E; 510-8A D] Janardhan Paswan v. State of Bihar, AIR 1988 Pat 75, distinguished. 1.2. The Panchayati Raj system in Scheduled Areas 8 is a fit case that warrants exceptional treatment with regard to reservation. The principles of reservation which are applicable for public employment and for admission to educational institutions cannot be readily applied in respect of the reservation policy made by the legislature C to protect the interests of the Scheduled Tribes by assuring them of majority reservation as well as the occupancy of Chairperson positions in Panchayats located in Scheduled Areas. This policy broadly corresponds with the past practice wherein the o Scheduled Areas were administered as per the provisions of the Fifth Schedule to the Constitution and the same was expected to adhere to the advice of the Tribes Advisory Councils, which were predominantly controlled F by Scheduled Tribes. By extending the Panchayati Raj E system to these areas, Scheduled Tribes should not be put in a relatively disadvantageous position. In the Panchayati Raj system contemplated by Part IX of the Constitution, the Scheduled Tribes should have an effective say in the administration. That is why the Bhuria Committee recommended that all Chairperson positions should be reserved in favour of Scheduled Tribes. The Parliament has conferred such special reservation on account of the pivotal role of the Chairperson in a Panchayat. [Para 15, 18 and 34] [510-D-E; 511-G-H; 512G A-8; 523-F] Vinayakrao Gangaramji Deshmukh v. P.C. Agrawal & Ors., AIR 1999 Born 142;- and Indra Sawhney v. Union of India, 1992 (2) Suppl. SCR 454 = (1992) Suppl. (3) SCC 217, referred to. H 486 SUPREME COURT REPORTS [201 O] 1 S.C.R. A 2.1. Sections 17(8)(2), 36(8)(2) and 55(8)(2) of the Jharkhand Panchayat Reservation Act, 2001 are also constitutionally valid provisions. The legislative intent behind the provisions of the JPRA is primarily that of safeguarding the interests of persons belonging to the B Scheduled Tribes category. Therefore, total reservations exceeding 50% of the seats in Panchayats located in Scheduled Areas are permissible on account of the exceptional treatment mandated under Article 243-M(4)(b) of thE~ Constitution. (Para 42 and 44] [530-H; 531-A-8-E] c MR. Balaji v. State of Mysore, 1963 Suppl. SCR 439 = AIR 1!)63 SC 649 and Indra Sawhneyv. Union of India (1992) Supp 3 SCC 217; Krishna Kumar Mishra v. State of Bihar, AIR 1996 Pat. 112, referred to. D 2.2. Under Article 243-D of the Constitution, there is a clear mandate for the State Legislature to reserve seats for SCs and STs 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 E by direct election in that Panchayat as the population of the SCs or the STs in that Panchayat area bears to the total pc,pulation of the area under consideration. In view of Article 243-0(6), a State Legislature can make provision for reservation of seats in any Panchayat or offices of F ChairpE!rsons in the Panchayats at any level in favour of backward class of citizens. Under the PESA, 50% of the seats in Gram Panchayats, Panchayat Samitis and Zilla Parishads should be reserved in favour of Schedule Tribes and the ceiling is fixed to the extent that this reservation put together shall not exceed 80% of the total G seats. It may be noticed that this reservation policy is exclusively applicable to Scheduled Areas which had hitherto been the subject of a separate administrative scheme under the Fifth Schedule of the Constitution. [Para 27] [518-E-H; 519-A-8] H UNION OF INDIA ETC. v .. RAKESH KUMAR AND 487 ORS., ETC. 2.3. It is a well-accepted premise in our legal system A that ideas such as 'substantive equality' and 'distributive justice' are at the heart of our understanding of the guarantee of 'equal protection before the law'. The State can treat unequals differently with the objective of creating a level-playing field in the social, economic and B political spheres. The question is whether 'reasonable classification' has been made on the basis of intelligible differentia and whether the same criteria bears a direct nexus with a legitimate governmental objective. While examining the validity of affirmative action measures, the c enquiry should be governed by the standard of proportionality rather than the standard of 'strict scrutiny'. Of course, these affirmative action measures should be periodically reviewed and various measures are modified or adapted from time to time in keeping with the changing. D social and economic conditions. Reservation of seats in Panchayats is one such affirmative action measure enabled by Part IX of the Constitution. (Para 28) (519-CE] 2.4. The principle of 'one-man, one-vote' cannot be E applied in an absolute sense in the context of Panchayat elections in Scheduled Areas. However, it is the responsibility of the executive to identify territorial constituencies which have a certain degree of parity in their population levels. It is of course important to re-draw F these constituencies from time to time, in keeping with the demographic shifts in the area concerned. [Para 20) [513-D-F] 2.5. Reservation of 50% seats in favour of the STs in Panchayats at all the three tiers is clearly an example of G 'compensatory discrimination' especially in view of the fact that the scheduled areas under consideration were completely under a separate admini~trative scheme as per the Fifth Schedule to the Constitution. There is of course a rational basis for departing from the norms of H 488 SUPREME COURT REPORTS [201 OJ 1 S.C.R. A 'adequate representation' as well as 'proportionate representation' in the case of Scheduled Tribes. This was necessary because it was found that even in the areas where Scheduled Tribes are in a relative majority, they are under-represented in the government machinery and B hence vulnerable to exploitation. [Para 31and 37 ] (521G-H; 525-E] Ashok Kumar Tripathi v. Union of India 2000 (2) MPHT 193, approved. c 2.6. Article 243-D is a distinct and independent constitutional basis for reservation in Panchayat Raj Institutions. This reservation cannot be readily compared • to the affirmative action measures enabled by Articles 15(4) and 16(4) of the Constitution; especially analogy 0 between Article 16(4) and Article 243-D is unviable. [Para 32) [522-B-D) Vinayakrao Gangaramji Deshmukh v. P.C. Agrawal & Ors., AIR 1999 Born 142, approved. E 3.1. The reservation policy in question is applicable only to Scheduled Areas which were hitherto covered by the Fifth Schedule to the Constitution, and merit such exceptional treatment. The Scheduled Areas under consideration are restricted only to certain Districts in the F State of Jharkhand. In some Districts where STs are not predominantly in occupation, only certain blocks have been notified as Scheduled Areas by themselves. On account of migration of non-tribal people in some areas, there may be a relatively lesser proportion of tribal population but historically these areas were occupied G almost exclusively by Tribal people. It is quite clear that the exceptional treatment for Scheduled Tribes will be confined to the blocks that have been notified as Scheduled Areas. This means that in the Districts where only some of the blocks have been notified as Scheduled H UNION OF INDIA ETC. v. RAKESH KUMAR AND 489 ORS., ETC. Areas, the provisions of the JPRA will be applicable at the A level of Panchayat Samitis within the notified area but not at the level of the Zilla Parishad for the whole district. [Para 19 and 21) [512-D-G; 513-G-H; 514-A) Ashok Kumar Tripathi v. Union of India 2000 (2) MPHT 8 193; and R.C Poudyal v. Union of India_ 1993 (1) SCR 891 = (1994) Supp. 1 SCC 324, referred to. 3.2. The identificatioi:i of Scheduled Areas is an executive function and courts do not possess the expertise needed to scrutinize the empirical basis of the C same. The data submitted before the Court indicates that while the Scheduled Tribes are indeed in a majority in some Scheduled Areas, the same is not true for some other Scheduled Areas. This disparity is understandable keeping in mind that there has been a considerable influx o of non-tribal population in some of the Scheduled Areas. In this regard, the Bhuria Committee's recommendation must be emphasized which says that persons belonging to the Scheduled Tribes should occupy at least half of the seats in Panchayats located in Scheduled Areas, E irrespective of whether the ST population was in a relative minority in the concerned area. This recommendation is in line with the larger objective of safeguarding the interests of Scheduled Tribes. [Para 38) [528-D-G) 4.1. As regards the plea that reservation of 80% of the F seats in Panchayats in Scheduled Areas amounts to an unreasonable limitation on the rights of political participation of persons belonging to the general category, it is significant to note that the rights of political participation broadly include the right of a citizen to vote G for a candidate of his/her choice and right of citizens to contest elections for a public office. While the exercise of electoral franchise is an essential component of a liberal democracy, it is a well-settled principle in Indian law that such rights do not have the status of fundamental H 490 SUPREME COURT REPORTS [2010] 1 S.C.R. A rights and are instead legal rights which are controlled through legislative means It will suffice to say that there is no inherent right to contest elections since there are explicit legislative controls over the same. [Para 39) [5298-F] B N.P. Ponnuswami vs. Returning Officer Namakkal Constituency Namakkal Salem Dist. 1952 SCR 218= 1952 AIR 64, referred to. 4.2. In the context of reservations in Panchayats, the c limitation placed on the choices available to voters is an incid~ntal consequence of the reservation policy. In this case, the compelling State interest in safeguarding the interests of weaker sections by ensuring their representation in local self-government clearly outweighs 0 the competing interest in not curtailing the choices available to voters. [Para 40) [529-G-H; 530-A] E F G Case Law Reference: AIR 1988 Pat 75 referred to Para 13 1912 (2) Suppl. SCR 454 referred to Para 17 (1st3)1 SCC 439 referred to Para 17 1993 ( 1 ) SCR 891 2000 (2) MPHT 193 AIR 1996 Pat. 112 AIR 1999 Bom 142 2000 (2) MPHT 193 referred to Para 20 relied on Para 22 referred to Para 24 referred to Para 32 approved Para 37 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 484-491 of 2006. From the Judgment & Order dated 02.09.2005 of the High H Court of Jharkhand in W.P. (PIL) No. 2728 of 2002, W.P. (PIL) UNION OF INDIA ETC. v. RAKESH KUMAR AND 491 ORS., ETC. No. 3877/2002, W.P. (PIL) No. 747/2001, W.P. (PIL) No. 1585 A of 2002, W.P. (PIL) No. 849 of 2002, CWJC No. 3591/1997 (R), CWJC No. 2148 of 2001, W.P. (C) No. 2097 of 2002. WITH C.A.Nos.209,210-211,212,213,214,215,216,217,of2010 B Gopal Subramanium, ASG, Dr. Rajeev Dhawan (N.P.), P.S. Mishra, (N.P.), S.S. Upadhyay (N.P.), M.N. Krishnamani (N.P.), Nagendra Rai, (N.P.), Tapesh Kr. Singh, Balaji (for 8. Krishna Prasad), Amlan Kumar Ghosh, Prashant Bhushan, c Bhupender Yadav, Vikramjit Banerjee, R.C. Kohli, Saket Singh, Niranjana Singh, Vikram, Braj Kishore Mishra, Ujjwal K.Jha, Arup Banerjee, Kshatrashal Raj, Braj K. Mishra, T.T.K. Deepak & Co., (NP), Nikhil Nayyar, T.V.S. Raghavendra Sreyas, Sumeet Gagodra, Amboj Agrawal, Dr. M.P. Raju, Mary Scaria, D P. George Giri, Y. Kalivi Zhimomi, Ashwani Bhardwaj, Santosh Mishra, Rajesh Ranjan Dubey, Dhruv Kumar Jha, Jayesh Gaurav, Shiv Mangal Sharma, Upendra Mishra, Pawan Upadhyay, Sharmila Upadhyaya, Chinmoy Khaladkar, Shailendra Narayan Singh, Neelam Kalsi, Vimal Chandra S. Dave, Sanjay R. Hegde, Anil Kr. Mishra, A. Rohen Singh, Amit E Kr. Chawla, Vikrant Yadav, R. Venkataraman, Manish Kumar Saran, Nirmal Kumar Ambastha, Delip Jerath, Ruchira Gupta, Bhawesh Kumar, (for Ashok Mathur), Kumud Lata Das, D.N. Goburdhan, (NP), Ajit Kumar Sinha, (NP), for the appearing parties. F \ The Judgment of the Court was delivered by K.G. BALAKRISHNAN, CJI. 1. Leave granted. 2. For a considerable period during the British Rule, G special laws were made applicable to certain 'backward areas' in India that were predominantly occupied by tribal people. These backward regions covered an area of more than 1,20,000 square miles. However, the characteristics of these H 492 SUPREME COURT REPORTS [2010] 1 S.C.R. A areas and their populations varied widely. By Act XIV of 1874, Santhal Parganas and Chutia Nagpur Division (now known as Chhotanagpur Division) were created and in these 'Scheduled districts', tribal communities were accorded a certain degree of autonomy to regulate their affairs on the basis of their own B conventions and traditions. Many of these communities chose their leaders through an informal consensus among other customary methods for selection. When the Constitution was enacted, these areas were designated as 'Scheduled Areas'. Article 244 of the Constitution explicitly states that the provisions c of the Fifth Schedule shall apply in respect of the administration and control of the Scheduled Areas in any State othe; than the States of Assam, Meghalaya, Tripura and Mizoram. The provi!Sions of the Sixth Schedule guide the administration of tribal areas in those states. D 3. Paragraph (4) of the Fifth Schedule states that there shall be in each State having a "Schedule Area", a 'Tribes Advisory Council' consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative E Assembly of the State. It was the duty of the 'Tribes Advisory Council' to advise on matters pertaining to the welfare and advancement of the Scheduled Tribes in the State. Paragraph (5) of the Fifth Schedule states that the Governor of the State may by public notification direct that any particular Act of F Parliament or the LegislatL:re of the State shall not apply to a Scheduled Area or would apply subject to such exceptions and modifications as he may specify. The Governor of the State may also make regulations for the peace and good government of any area in a State which is for the time being a Scheduled G Area. The Governor of the State has also been given the power to repeal or amend any existing Act of Parliament or of the Legislature of the State which is for the time being applicable to the area in question. H 4. Hence, it is evident that the framers' intent bel1ind UNION OF INDIA ETC. v. RAKESH KUMAR AND 493 ORS., ETC. [K.G. BALAKRISHNAN, CJI.] including the Fifth Schedule was that of a separate A administrative scheme for Scheduled Areas in order to address the special needs of tribal communities. During the debates on the floor of the Constituent Assembly, some members had criticized such differential treatment for Scheduled Tribes. In response to such criticisms, Shri K.M. Munshi had said that B 'Adivasis' or tribes were many in number belonging to different "ethnic, religious and social groups" and he explained the object of the Drafting Committee's proposals in the following words: "We want that the Scheduled Tribes in the whole country C should be protected from the destructive impact of races possessing a higher and more aggressive culture and should be encouraged to develop their own autonomous life; at the same time we want them to take a larger part in the life of the country adopted. They should not be isolated communities or little republics to be perpetuated D for ever ..... object is to maintain them as little unconnected communities which might develop into different groups from the rest of the country ..... and that these tribes should be absorbed in the national life of the country." 5. In exercise of the powers conferred by paragraph 6(i) of the Fifth Schedule to the Constitution of India, the President of India made an Order known as The Scheduled Area (Part A States) Order, 1950. With respect to the then combined State of Bihar, this Order was applied to Ranchi district, Singhbhum district (excluding Dalbhum sub-division) and Santhal Pargana district. The following table shows the chronology of the governmental measures which have identified Scheduled Areas in the territories that lie in the present-day State of Jharkhand: E F G H A B 494 SUPREME COURT REPORTS [201 O] 1 S.C.R. 874 Scheduled Districts Act, 1874 (Act XIV of 1874) passed during the colonia period Declared the Santhal Parganas and the Chutia NagpurDivision (now known as 'Chhotanagpur Division') as 'scheduled districts' in the erstwhile province of Bengal. These areas now come within the territory of the State of Jharkhand. C 950 After independence, The In pursuance of this Order, President of India had Ranchi district, made an order known as Singhbhum district The Scheduled Area (Part (excluding Dalbhum A States) Order, subSanthal P a r g a n a D division), 1950 in exercise district (excluding Godda of the powers conferred by· and Deoghar subParagraph 6(ii) of the Fifth divisions) and Latehar Schedule to the sub-division of Palamau Constitution of India. district were declared to E be Scheduled areas. 977 F G H The 1950 Order was rescinded and replaced by the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 By the said Order, Ranchi district, Singhbhum district, Latehar subdivision and Bhandaria block of Garhwa subdivision in Palamau district, Dumka; Pakur; Rajmahal and Jamatra sub-divisions and Sundarpahari and Boarijor blocks of Godda sub-divisions in Santhal Pargana district were shown as scheduled areas of the then combined UNION OF INDIA ETC. v. RAKESH KUMAR AND 495 2003 ORS., ETC. [K.G. BALAKRISHNAN, CJI.] Subsequent to the formation of the States of Jharkhand and Chhattisgarh, The Scheduled Areas (States of Chhattisgarh, Jharkhand and Madhya Pradesh) Order, 2003 was passed to replace the 1977 order State of Bihar, all of A which now fall within the territory of Jharkhand. Under the 2003 order, the following areas in the State of Jharkhand have been declared as Scheduled Areas: 1. Burhmu, Mandar, Chan ho, Bero, Lapung, Namkom, Kanke, Ormanjhi, Angara, Silli, Sonahatu, Tamar, Bundu, Arki, Khunti, Murhu, Karra, Torpa and Raniya blocks in Ranchi District. 2. Kisko, Kuru, Lohardaga, Bhadra and Senha blocks in Lohardaga district 3. Bishanpur, Ghaghra, Chainpur, Dumri, Raic.iih, Gumla, Sisai, Kagdara, Basiya and Palkot blocks in Gumla District 4. Simdega, Kolebira, I B c D E F Ba no, Jaldega, Thethetangar, Kurdeng G and Bolba blocks within Simdega District. 5. Barwadih, Manika, H A B c D E F G H 496 SUPREME COURT REPORTS [2010] 1 S.C.R Balumath, Chandwa, Latehar, Garu and Mahuadaran blocks within Latehar District 6. Bhandariya block within Garhwa District 7. Bandgaon, Chakradharpur, Sonuwa, Goyalkera, Mahoharpur, Noamundi, Jagannathpur, Manghgaon, Kumardungi, Manjhari, Tatnagar, Jhinkpani, Tonto, Khutpani and Chaibasa blocks within the West Singhbum District 8. Govindpur (Rajnagar), Adityapur (Ghamariya), Seraikela, Kharsaan, Kuchai, Chand ii, lchagarh and Nimdih blocks within Seraikella Kharsawan District 9.Golmuri-Jugslia, Patmada, Petka, Dumariya, Musabani, Ghatsila, Dhalbhumgarh, Chakuliya and Bahragora blocks within East Singhbhum District 10.Sariyahat, Jarmundi, Jama, Ramagarh, UNION OF INDIA ETC. v. RAKESH KUMAR AND 497 ORS., ETC. [K.G. BALAKRISHNAN, CJI.] A Gopikandar, Kathikund, Dumka, Sikripara, Raneshwar and Masaliya blocks within Dumka B District. 11. Kundhit, Nala, Jamtara and Narayanpur blocks within Jamtara c District 12. Sahebganj, Boriyo, Taljhari, Rajmahal, Barharwa, Pathna and Barhet blocks D within Sahebganj District. 13. Littipara, Amrapara, Hiranpur, Pakur, Maheshpur and E Pakuriya blocks within Pakur District 14. Borijore and . Sundarpahari blocks within Godda District. F 2007 Subsequent to the impugned judgment of the Jharkhand High Court, the Government of Jharkhand passed the Scheduled G Areas (State of Jharkhand) Order, 2007 and the same is presently in force. H 498 SUPREME COURT REPORTS [2010] 1 S.C.R. A Hence, Tribes Advisory Councils had been constituted for these Scheduled areas since the Panchayati Raj System had not been extended to them. 6. By way of the Constitution (Seventy-Third Amendment) B Act, 1992, Part IX was inserted in the Constitution of India. Article 243B of Part IX of the Constitution mandated that there shall be Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. Article 243C provides that the Legislature of a State may, by law, make C provisions with respect to the composition of Panchayats. Detailed provisions were made under Article 243-D enabling the reservation of seats for Scheduled Castes, Scheduled Tribes, women and other backward classes. Article 243-M stated that nothing in this Part shall apply to the Scheduled Amas referred to in clause (1 ), and the tribal areas referred to D in clause (2), of article 244. 7. Two years after the ?3rd Amendment Act, the Union Government had appointed a Committee of Members of Parliament (MPs) and experts under the Chairmanship of Sh. E Dilip Singh Bhuria to undertake a detailed study and make recommendations about whether the Panchayati raj system should be extended to the Schedules Areas, as contemplated by Article 243-M(4)(b) of the Constitution. The Committee submitted its report on 17.1.1995 and favoured democratic F decentralization in scheduled areas. It will be instructive to refer to the following observations in the Bhuria Committee Report (at Para. 10):- G H 'Tribal life and economy, in the not too distant past, bore a harmonious relationship with nature and its endowment. It was an example of sustainable development. But with the influx of outside population, it suffered grievous blows. The colonial system was established on the basis of expropriation of the natural and economic resources of tribal and other areas in the country. Although, theoretically, UNION OF INDIA ETC. v. RAKESH KUMAR AND 499 ORS., ETC. [K.G. BALAKRISHNAN, CJI.] there has been difference in the approach after the A departure of the colonial masters from Tribal areas, in practice, the principles enunciated in Article 39 and other Directive Principles of State Policy have to be followed more rigorously. On account of their simplicity arid ignorance, over the decades the tribals have been B dispossessed of their natural and economic resources like land, forest, water, air, etc .. The dispossession has not been confined to that through private parties. For the purpose of promotion of general economic development projects, the State also has been depriving them of the c basis means of livelihood. These processes have been operative since a long time causing human misery and socio-economic damage. No reliable picture is yet available, for instance, we are not seized on the total quantum of land alienated from the tribals both on private 0 and State account nor the number of families, clans or Tribes involved. This has compelled some to perceive development as an agent of destruction. But since planned development has been an article of faith with us, it has to be ensured that implementation of the policies and programmes drawn up in tribal interest are implemented E in tribal interest. Since, by and large, the politicobureaucratic apparatus has failed in its endeavor, powers should be developed on the people so that they can formulate programmed which suit them and implement them for their own benefits." F It was further observed, at Para. 30: "The group was further of the view that notwithstanding the fact that the areas under consideration i.e. Scheduled G Areas are expected to have majority of tribal population, it is necessary to stipulate that the Panchayats therein will have a majority of Scheduled Tribes members. The reason is that the Scheduled Areas were notified as such on account of majority of Scheduled Tribe population, H 500 SUPREME COURT REPORTS [2010] 1 S.C.R. A contiguity etc. In course of time, on account of influx of non-ST population, in a few Scheduled Areas, the status of the ST population might have been reduced to a minority. That should not be regarded as having altered the overall character of the Scheduled Areas. The B chairmen and vice-chairmen should belong to the Scheduled Tribes. One-third of the seats should be reserved for women." (Emphasis supplied) C 8. Evidently, the Committee made three specific recommendations, namely, (a) Panchayats in scheduled areas must have a majority of scheduled tribes members, (b) Chairmen and Vice-Chairmen should belong to scheduled tribes, and (c) one-third of the seats should be reserved for D women. The Committee felt that certain provisions in Part IX which pertained to Panchayati Raj Institutions (PRls) were wholesome and should be incorporated in the law to be passed by the Parliament under Article 243-M(4)(b) with due regard for the unique characteristics of tribal societies residing in the E Scheduled Areas. It was considered especially important to protE~ct the interests of many tribal societies which have their own customary laws, traditional practices and community ethos. The Committee was also of the view that since the Scheduled Areas and Tribal Areas are expected to have a majority of tribal F population, the Panchayats at different tiers should have a majority of members who belong to the Scheduled Tribes (Hereinafter 'STs'). Furthermore, it was suggested that both the chairman and vice-chairman should belong to this category as well. The Committee also made recommendations in respect G of the various functions to be discharged by the Gram Sabhas in Tribal areas. They pertained to safeguards for the rights of the tribal communities in matters relating to land, water, forest and minor forest produce; enforcement of customary rights such as grazing, fuel, fodder, minor forest produce, building H materials; mobilization for community welfare programmes and UNION OF INDIA ETC. v. RAKESH KUMAR AND 501 ORS., ETC. [K.G. BALAKRISHNAN, CJI.] organising voluntary labour for community works; promotion of A solidarity and harmony among all sections of people; consideration of the report on the audit of accounts of the Gram Panchayat; women and child development; identification of the beneficiaries for poverty alleviation and other programmes and host of other welfare measures such as drinking water supply, B sanitation, conservancy and drainage; public health measures; village roads and streets; small tanks; maintenance of public properties and community assets. The Committee gave detailed suggestions with regard to the powers, functions and procedures of the Panchayati Raj Institutions. c 9. Based on these recommendations, The Panchayats (Extension to the Scheduled Areas) Act, 1996 [hereinafter 'PESA'] was passed by the Parliament in 1996. The statement of Objects and Reasons of the PESA Act reads as follows: D "There have been persistent demands from prominent leaders of the Scheduled Areas for extending the provisions of Part IX of the Constitution to these Areas so that Panchayat Raj Institutions may be established there. Accordingly, it is proposed to introduce a Bill to provide E for the extension of the provisions of Part IX of the Constitution to the Schedule Areas with certain modifications providing that, among other things, the State Legislations that may be made shall be· in consonance with the customary law, social and religious practices and F traditional management practices of community resources; .... The offices of the Chairpersons in the Panchayats at all levels shall be reserved for the Scheduled Tribes; the reservations of seats at every Panchayat for the Scheduled Tribes shall not be less than one-third of the total number G of seats." 10. The provision of the PESA Act which merits consideration in the present case is Section 4 which reads as follows:- H 502 SUPREME COURT REPORTS [2010) 1 S.C.R. A 4. f-..Jotwithstanding anything contained under Part IX of the Constitution, the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features, namely:- B (a) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of c community resources; (b) a village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in D accordance with traditions and customs; (c) every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the E Panchayat at the village level; Declared the Santhal Parganas and the Chutia Nagpur Division (now known as 'Chhotanagpur Division') as 'scheduled districts' in the erstwhile province of Bengal. F These areas now come within the territory of the State of Jharkhand. (d) every Gram Sabha shall be competent to safeguard and preserve the traditions and G customs of the people, their cultural identity, community resources and the customary mode of dispute resolution; (e) every Gram Sabha shall - H (i) approve the plans, programmes and projects UNION OF INDIA ETC. v. RAKESH KUMAR AND 503 ORS., ETC. [K.G BALAKRISHNAN, CJI.] (ii) (f) (g) for social and economic development before A such plans, programmes and projects are taken up for implementation by the Panchayat at the village level; be responsible for the identification or selection of persons as beneficiaries under 8 the poverty alleviation and other programmes; every Panchayat at the village level shall be required to obtain from the Gram Sabha a C certification of utilization of funds by that Panchayat for the plans, programmes and projects referred to in clause (e); the reservation of seats in the Scheduled 0 Areas at every Panchayat shall be in proportion to the population of the communities in that Panchayat for whom reservation is sought to be given under Patt IX of the Constitution; Provided that the reservation for the Scheduled Tribes shall not be less than onehalf of the total number of seats: E Provided further that all seats of F Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes; (h) the State Government may nominate persons belonging to such Schedule Tribes as have no representation in the Panchayat at the G intermediate level or the Panchayat at the district level: Provided that such nomination shall not exceed one-tenth of tile total members to be H 504 SUPREME COURT REPORTS [201 O] 1 S.C.R. A elected in that Panchayat; (i) the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the B Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the c State level; 0) planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate D level; (k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of E prospecting licence or mining lease for minor minerals in the Scheduled Areas: '.-:r (I) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of F concession for the exploitation of minor minerals by auction; (m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may G