# 6 S.C.R. 972 DR. K. KRISHNA MURTHY & ORS v. UNION OF INDIA & ANR

- **Citation:** [2010] 6 S.C.R. 972
- **Court:** Supreme Court of India
- **Decided:** 2010-05-11
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, D.K: Jain, P. Sathasivam, J.M. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-s-c-r-972-dr-k-krishna-murthy-ors-v-union-of-india-anr-26854
- **Pages:** 56

## Headnote

Constitution of India, 1950 - Constitution (Seventy-third)
c Amendment Act, 1992 -
Constitution (Seventy-fourth)
Amendment Act, 1992:
Articles 243-0(4) and 243-T(4) - Elected local selfgovernment institutions - Reservation of Chairperson posts
0 under - Constitutional validity of - Held: Is constitutionally
valid - Said posts cannot be equated with solitary posts in the
context of public employment - Article 243-0(4) provides a
clear constitutional basis for reserving Chairperson positions
in favour of SC and STs (in proportionate manner) and onethird of all chairperson positions in each tier of the Panchayati
E Raj Institutions in favour of women.
Articles 243-0(6) and 243-T(6) - Reservations in favour
of backward classes for occupying seats and Chairperson
positions in Panchayat and Municipalities - Constitutional
F validity of - Held: Are constitutionally valid - Provisions
merely enable State Legislatures to reserve seats and
chairperson posts in favour of backward classes - They do
not provide guidance on how to identify backward classes and
neither do they specify any principle for quantum of such
G reservations - Concerns about disproportionate reservations
should be raised by way of specific challenges against the
State Legislations - Karnataka Panchayati Raj Act, 1993 -
Uttar Pradesh Panchayat Raj Act, 1947 - Uttar Pradesh
Kshetra Panchayat and Zilla Panchayat Act, 1961.
H
972
DR. K. KRISHNA MURTHY & ORS. Ii. UNION OF
973
INDIA &ANR.·
.
Articles 243-0(6) and 243-T(6) - Reservations for OBCs A
under the State Legislations - Claims as regard overbreadth
in quantum of reservation - Held: Cannot be examined since
there is no contemporaneous empirical data - Onus is on
executive to conduct rigorous investigation into the patterns
of backwardness that act as barriers to political participation
B
- Aggrieved party can challenge any State legislation enacted
in pursuance to Articles 243-0(6) and 243-T(6) before High
Court.
Articles 243-0(6) and 243-T(6) - Upper ceiling - 50 %
vertical reservations in favour of SC!ST!OBCs - Held: Not to
C
be breached in context of local self-government - Exceptions
can only be made in order to safeguard the interests of
Scheduled Tribes in the matter of their representation in
Panchayats located in Scheduled Areas.
D
Articles 243-0(6) and 243-T(6) - Reservations in favour
of backward classes - 'Backward classes' in Articles 243-0(6)
and 243-T(6}, whether co-extensive with the 'socially and
educationally backward classes' (SEBCs) contemplated
under Articles 15(4) and 15(5) or with under-represented
E
backward classes as contemplated under Article 16(4)- Held:
Identification of 'backward classes' under Articles 243-0(6)
and 243-T(6) should be distinct from the identification of
SEBCs for the purpose of Article 15(4) and that of backward
classes for the purpose of Article 16 (4) - Social and
F
economic backwardness does not necessarily coincide with
political backwardness.
Articles 243-0 and 243-T - Reservations in elected local
self government -
Nature and purpose of -
Held: Is
considerably different from that of higher education and G
public employment, as contemplated under Articles 15(4) and
16(4) - Articles 243-0 and 243-T form a distinct and
independent constitutional basis for affirmative action and
principles that have been evolved in relation to reservation
H
..
97 4
SUPREME COURT REPORTS
[201 O] 6 S.C.R.
, A policies enabled by Articles 15(4) and 16(4) cannot be readily
applied in the context of local self-government.
A1ticles 243-0 and 243-T - Reservations in local selfgovernment - Exclusion of 'creamy layer' - Held: There
8 cannot be exclusion of creamy layer in the context of local
self-government - Reservations in local self-government are
intended to directly benefit the community as a whole, 1ather
than just the elected representatives - Exclusion of 'creamy
layer' may be feasible as well as desirable in the context of
C reservations for education and employment.
Right to vote an

## Text

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A
B
(2010] 6 S.C.R. 972
DR. K. KRISHNA MURTHY & ORS.
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 356 of 1994)
MAY 11, 2010
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN,
D.K: JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ.]
Constitution of India, 1950 - Constitution (Seventy-third)
c Amendment Act, 1992 -
Constitution (Seventy-fourth)
Amendment Act, 1992:
Articles 243-0(4) and 243-T(4) - Elected local selfgovernment institutions - Reservation of Chairperson posts
0 under - Constitutional validity of - Held: Is constitutionally
valid - Said posts cannot be equated with solitary posts in the
context of public employment - Article 243-0(4) provides a
clear constitutional basis for reserving Chairperson positions
in favour of SC and STs (in proportionate manner) and onethird of all chairperson positions in each tier of the Panchayati
E Raj Institutions in favour of women.
Articles 243-0(6) and 243-T(6) - Reservations in favour
of backward classes for occupying seats and Chairperson
positions in Panchayat and Municipalities - Constitutional
F validity of - Held: Are constitutionally valid - Provisions
merely enable State Legislatures to reserve seats and
chairperson posts in favour of backward classes - They do
not provide guidance on how to identify backward classes and
neither do they specify any principle for quantum of such
G reservations - Concerns about disproportionate reservations
should be raised by way of specific challenges against the
State Legislations - Karnataka Panchayati Raj Act, 1993 -
Uttar Pradesh Panchayat Raj Act, 1947 - Uttar Pradesh
Kshetra Panchayat and Zilla Panchayat Act, 1961.
H
972
DR. K. KRISHNA MURTHY & ORS. Ii. UNION OF
973
INDIA &ANR.·
.
Articles 243-0(6) and 243-T(6) - Reservations for OBCs A
under the State Legislations - Claims as regard overbreadth
in quantum of reservation - Held: Cannot be examined since
there is no contemporaneous empirical data - Onus is on
executive to conduct rigorous investigation into the patterns
of backwardness that act as barriers to political participation
B
- Aggrieved party can challenge any State legislation enacted
in pursuance to Articles 243-0(6) and 243-T(6) before High
Court.
Articles 243-0(6) and 243-T(6) - Upper ceiling - 50 %
vertical reservations in favour of SC!ST!OBCs - Held: Not to
C
be breached in context of local self-government - Exceptions
can only be made in order to safeguard the interests of
Scheduled Tribes in the matter of their representation in
Panchayats located in Scheduled Areas.
D
Articles 243-0(6) and 243-T(6) - Reservations in favour
of backward classes - 'Backward classes' in Articles 243-0(6)
and 243-T(6}, whether co-extensive with the 'socially and
educationally backward classes' (SEBCs) contemplated
under Articles 15(4) and 15(5) or with under-represented
E
backward classes as contemplated under Article 16(4)- Held:
Identification of 'backward classes' under Articles 243-0(6)
and 243-T(6) should be distinct from the identification of
SEBCs for the purpose of Article 15(4) and that of backward
classes for the purpose of Article 16 (4) - Social and
F
economic backwardness does not necessarily coincide with
political backwardness.
Articles 243-0 and 243-T - Reservations in elected local
self government -
Nature and purpose of -
Held: Is
considerably different from that of higher education and G
public employment, as contemplated under Articles 15(4) and
16(4) - Articles 243-0 and 243-T form a distinct and
independent constitutional basis for affirmative action and
principles that have been evolved in relation to reservation
H
..
97 4
SUPREME COURT REPORTS
[201 O] 6 S.C.R.
, A policies enabled by Articles 15(4) and 16(4) cannot be readily
applied in the context of local self-government.
A1ticles 243-0 and 243-T - Reservations in local selfgovernment - Exclusion of 'creamy layer' - Held: There
8 cannot be exclusion of creamy layer in the context of local
self-government - Reservations in local self-government are
intended to directly benefit the community as a whole, 1ather
than just the elected representatives - Exclusion of 'creamy
layer' may be feasible as well as desirable in the context of
C reservations for education and employment.
Right to vote and contest elections - Nature of - Held:
Does not have the status of fundamental rights - They are in
the nature of legal rights which can be controlled through
legislative means -
Constitution empowers the Election
D Commission to prepare electoral rolls for identifying the
eligible voters in elections for Lok Sabha and Vidhan Sabha
- Right to vote is not an inherent right and cannot be claimed
in an abstract sense -1951 Act includes grounds that render
persons ineligible from contesting elections - Thus, there is
E no inherent right to contest elections since there are explicit
legislative controls over the same - Representation of the
PEwple Act, 1951.
8y way of the 73rd and 74th Amendments to the
F CC)nstitution of India, 1950, Articles 243-0(4) and 243-T(4)
as well as Articles 243-0(6) and 243-T(6), were inserted.
In the instant writ petition, the petitioner has challenged
the constitutional validity of Article 243-0(6) and Article
243-T(6) of the Constitution of India, 1950 since they
enable reservations in favour of backward classes for the
G purpose of occupying seats and chairperson positions
in Panchayats and Municipalities respectively, and also
Article 243-0(4) and Article 243-T(4) since they enable the
reservation of chairperson positions in Panchayats and
Municipalities respectively.
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
975
INDIA & ANR.
Disposing of the Writ Petition, the Court
A
HELD: 1.1 The nature and purpose of reservations
in the context of local self-government is considerably'
diflerent from that of higher education and public
employment. Article 243-D and Article 243-T of the B
Constitution of India, 1950 form a distinct and
independent constitutional basis for affirmative action
and the principles that have been evolved in relation to
the reservation policies enabled by Articles 15(4) and
16(4) cannot be readily applied in the context of local selfC
government. Even when made, they need not be for a
period corresponding to the period of reservation for
purposes of Articles 15(4) and 16(4), but can be much
shorter. [Para 48] [1026-D-G]
1.2. Article 243-D(6) and Article 243-T(6) are D
constitutionally valid since they are in the nature of
provisions which merely enable State Legislatures to
reserve seats and chairperson posts in favour of
backward classes and it would be quite improper to strike
them down as violative of the equality clause. Concerns E
about disproportionate reservations should be raised by
way of specific challenges against the State Legislations.
[Para 48] [1026-G-H; 1027-A]
1.3. The claims about overbreadth in the quantum of
reservations provided for OBCs under the impugned
F
State Legislations cannot be examined since there is no
contemporaneous empirical data. The onus is on the
executive to conduct a rigorous investigation into the
patterns of backwardness that act as barriers to political
participation which are indeed quite different from the G
patterns of disadvantages in the matter of access to
education and employment. It will be open to the
petitioners or any aggrieved party to challenge any State
legislation enacted in pursuance of Articles 243-D(6) and
243-T(S) before the High Court. The identification of H
976
SUPREME COURT REPORTS
[2010) 6 S.C.R.
A
'backward classes' under Articles 243-0(6) ;tnd 243-T(6)
should be distinct from the identification of 'socially and
eJ .. ,cationally backward classes'-SEBCs for the purpose
of Article 15(4) and that of backward classes for the
purpose of Article 16 (4). [Para 48) [1027-B-E]
B
1.4. The upper ceiling of 50% vertical reservations in
favc•1r of SC/ST/OBCs should not be breached in the
ctmtext of local self-government. Exceptions can only be
made in order to safeguard the interests of STs in the
matter of their representation in Panchayats located in the
C Scheduled Areas. [Para 48) [1027-E-F]
1.5. The reservation of chairperson posts in the
m:t11ner contemplated by Articles 243-0(4) and 243-T(4)
is constitutionally valid. These chairperson posts cannot
D be equated with solitary posts in the context of public
employment. [Para 48] [1027-F-G]
2.1. The principles that have been evolved for
conferring the reservation benefits contemplated by
E Articles 15(4) and 16(4) cannot be mechanically applied
in the context of reservations enabled by Articles 243-0
and 243-T. Articles 243-D and 243-T form a distinct and
inffependent constitutional basis for reservations in local
self-government institutions, the nature and purpose of
wluch is different from the reservation policies designed
F to improve access to higher education and public
employment, as contemplated under Articles 15(4) and
1:i(4) respectively. [Para 30) [1013-C-E]
Vinayakrao Gangaramji Deshmukh v. P. C. Agrawal &
G Ors, AIR 1999 Born 142, approved.
2.2. It is partly accepted that the nature of
disadv<.rtages which restrict access to education and
empkyment cannot
be
readily
equated
with
H disadva'1tages in the realm of political representation. To
DR. K. KRISHNA MLJRTHY & ORS. v. UNION OF
977
INDIA & ANR.
be sure, backwardness in the social and economic s~nse A
does not necessarily imply political backwardness.
However, the petitioner's emphasis on the distinction
between 'selection' (in case of education and
employment) and 'election' (in case of political
representation) does not adequately reflect the, B
complexities involved. It is undeniable that in determining
who can get access to educatio11 and employment, due
regard must be given to considerations of merit and
efficiency which can be measured in an objective manner.
Hence, admissions to educational institutions anci i~1e c
recruitment to government jobs is ordinarily done through
methods such as examinations, interviews or
assessment of past performance. Since it is felt that
applicants belonging to the SC/ST/OBC catego:-it!S
among others are at a disadvantage when they comμ9t~ D
through these methods, a level-playihg field is sougir(i.o
be created by way of conferring reservation benefits.
[Para 31) [1014-C-G]
2.3. In the domain of political participation, there can
be no objective parameters to determine who is more E
likely to get e.lected tot;~ r.esenta
1~lv~ inst·i.tu
.... !!<>ns ~t ~ny
level. The choices of vo · s are not guided by'an obJet;tlve
assessment of a candi ate's merit and efficiency. lnstel\!d,
. they are shaped by subjective factors such as the
' candidate's ability to canvass support, past service F
record, professed ideology and affiliations to organised
groups among others. It is quite possible that candidates
belonging to the SC/ST/OBC categories could
demonstrate these subjective qualities and win elections
against candidates from the relatively better-off groups. G
However, such a scenario cannot be presumed in all
circumstances. It is quite conceivable that in some
localized· settings, ·backwardness in th-e social and
economic sense can also act as a barrier to effective
political participation and representation. When it comes H
978
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A to creating a level-playing field for the purpose of
elections to local bodies, backwardness in the social and
economic sense can indeed be one of the criteria for
conferring reservation benefits. [Para 32) [1014-H;
1015-A-D]
B
2.4. There is an inherent difference between the
nature of benefits that accrue from access to education
and
employment on
one
hand
and
political
representation at the grassroots level on the other hand.
While access to higher education and public employment
C increases the likelihood of the socio-economic upliftment
of the individual beneficiaries, participation in local-self
government is intended as a more immediate measure of
empowerment for the community that the elected
representative belongs to. The objectives of democratic
D decentralisation are not only to bring governance closer
to the people, but also to make it more participatory,
inclusive and accountable to the weaker sections of
society. In this sense, reservations in local selfge1vernment are intended to directly benefit the
E community as a whole, rather than just the elected
representatives. Thus, there cannot be an exclusion of
the 'creamy layer' in the context of political representation.
There are bound to be disparities in the socio-economic
status of persons within the groups that are the intended
F
beneficiaries of reservation policies. While the exclusion
of the 'creamy layer' may be feasible as well as desirable
in the context of reservations for education and
employment, the same principle cannot be extended to
the context of local self-government. At the level of
G panchayats, the empowerment of the elected individual
is only a means for pursuing the larger end of advancing
the interests of weaker sections. Hence, it would be
counter-intuitive to exclude the relatively better-off
persons among the intended beneficiaries from the
H reservation benefits that are designed to ensure diversity
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
979
INDIA & ANR.
in the composition of local bodies. It is quite likely that
A
such persons may be better equipped to represent and
protect the interests of their respective communities.
[Para 33] (1015-0-H; 1016-A-C]
3.1. Articles 243-0(6) and 243-T(6) do not provide
guidance on how to identify the backward classes and
neither do they specify any principle for the quantum of
such reservations. Instead, discretion has been conferred
B
on State Legislatures to design and confer reservation
benefits in favour of backward classes. It is but 'latural
that questions will arise in respect of the exerc!se \lf a
C
discretionary power. [Para 34] (1016-E-F]
3.2. There is no doubt that excessive and
disproportionate reservations provided by State
legislations can indeed be the subject-matter of specific
D
challenges before the Courts. However, the same does
not justify the striking down of Articles 243-0(6) and 243T(6) which are Constitutional provisions that enable
reservations in favour of backward classes in the first
place. As far as the challenge against the various State
E
legislations is concerned, no adequate materials is
provided nor argumentation that could help to make a
decision about the same. The identification of backw:.rd
classes for the purpose of reservations is an executive
function and as per the mandate of Article 340, dedicated
commissions need to be appointed to conduct a rigorous
empirical inquiry into the nature and implications of
F
' backwardness. It is also incumbent upon the executive
to ensure that reservation policies are reviewed from time
to time so as to guard against overbreadth. In respect of G
the objections against the Karnataka Panchayati Raj Act,
1993, the Chinnappa Reddy_ Commission Report (1990)
is referred to which reflects the position as it existed
twenty years ago. In the absence of updated empirical
data, it is well nigh impossible for the Courts to decide
H
980
SUPREME COURT REPORTS
[2010) 6 S.C.R.
A whether the reservations in favour of OBC groups are
proportionate are not. Similarly, in the case .of the State
of Uttar Pradesh, the claims about the extent of the OBC
population are based on the 1991 census. The petitioners
are at liberty to raise specific challenges against the State
B legislations if they can point out flaws in the identification
of backward classes with the help of updated empirical
data. [Para 35] [1017-B-H]
3.3. The social and economic backwardness does
not necessarily coincide with political backwardness. In
C the said respect, the State Governments are well advised
to reconfigure their reservation policies, wherein the
beneficiaries under Articles 243-0(6) and 243-T(6) need
not necessarily be co-terminus with the Socially and
Educationally Backward Classes (SEBCs) [for the
D purpose of Article 15(4)] or even the Backward .classes
that are under-represented in government jobs [for the
purpose of Article 16(4)]. It would be safe to say that not
all of the groups which have been given reservation
benefits in the domain of education and employment
E need reservations in the sphere of local self-government.
This is because the barriers to political participation are
not of the same character as barriers that limit access to
education and employment. This calls for some fresh
thinking and policy-making with regard to reservations in
F local self-government. [Para 36] [1018-A-D]
3.4. In the absence of explicit constitutional guidance
as to the quantum of reservation in favour of backward
classes in local self-government, the rule of thumb is that
of proportionate reservation. However, stress must be
G laid on the fact that the upper ceiling of 50% (quantitative
limitation) with respect to vertical reservations in favour
of SC/ST/OBCs should not be breached. On the question
of breaching this upper ceiling, the arguments made by
the petitioners were a little misconceived since they had
H
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
981
INDIA &ANR.
accounted for vertical reservations in favour of SC/ST/
A
OBCs as well as horizontal reservations in favour of
women to assert that the 50% ceiling had been breached
in some of the
States. This
was
clearly a
misunderstanding of the position since the horizontal
reservations in favour of women are meant to intersect
B
with the vertical reservations in favour of SC/ST/OBC,
since one-third of the seats reserved for the latter
categories are to be reserved for women belonging to the
same. This means that seats earmarked for women
belonging to the general category are not accounted for c
if one has to gauge whether the upper ceiling of 50% has
been breached. [Para 37] [1018-D-H]
Indra Sawhney v. Union of India 1992 Supp 3 SCC 217,
referred to.
3.5. Reservations in excess of 50% does exist in
some exceptional cases, when it comes to the domain of
political representation. The Legislative Assemblies of the
States of Arunachal Pradesh, Nagaland, Meghalaya,
Mizoram and Sikkim have reservations that are far in
excess of the 50% limit. However, such a position is the
outcome of exceptional considerations in relation to
these areas. Similarly, vertical reservations in excess of
50% are permissible in the composition of local selfgovernment institutions located in the Fifth Schedule
Areas. However, such exceptional considerations cannot
be invoked when the quantum of reservations is
examined in favour of backward classes for the purpose
D
E
F
of local bodies located in general areas. In such
circumstances, the vertical reservations in favour of SC/
G
STIOBCs cannot exceed the upper limit of 50% when
taken together. It is obvious that in order to adhere to this ·
upper ceiling, some of the States may have to modify
their legislations so as to reduce the quantum of the
existing quotas in favour of OBCs. [Para 39] [1019-f=-H;
H
1020-A-C]
.
982
SUPREME COURT REPORTS
[2010) 6 S.C.R.
A
Union of India v. Rakesh Kumar (2010) 1 SCALE 281,
referred to.
4.1. Article 243-0(4) provides a clear Constitutional
basis for reserving the Chairperson positions in favour
8 of SC and STs (in a proportionate manner) while also
providing that one-third of all chairperson positions in
each tier of the Panchayati Raj Institutions would be
reserved in favour of women. The considerations behind
the provisions of Article 243-0 cannot be readily
C compared with those of Article 16(4) which is the basis
for reservations in public employment. In the domain of
service law that single posts cannot be reserved under
the scheme of Article 16(4). The Chairperson position
should not be viewed as solitary seats by themselves for
the purpose of reservation. Instead, the frame of
D reference is the entire pool of Chairperson position in
each tier of the three levels of Panchayati Raj Institutions
in the entire State. Out of this pool of seats which is
computed across panchayats in the whole state, the
number of offices that are to be reserved in favour of
E Scheduled Castes and Scheduled Tribes is to be
determined on the basis of the proportion between the
population belonging to these categories and the total
population of the State. This interpretation is clearly
supported by a bare reading of the first proviso to Article
F 243-0(4). [Para 40) [1020-E-H; 1021-A-C)
Janardhan Paswan v. State of Bihar, AIR 1988 Pat 75;
Krishna Kumar Mishra v. State of Bihar AIR 1996 Pat 112,
referred to.
G
4.2. When the frame of reference is the entire pool of
H
chairperson positions computed across each tier of
Panchayati Raj institutions in the entire state, the
possibility of cent-per-cent reservation does not arise. For
this purpose, a loose analogy can be drawn with
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
983
INDIA & ANR.
reservations in favour of Scheduled Castes and
A
Scheduled Tribes for the purpose of elections to the Lok
Sabha and the respective Vidhan Sabhas. Before
elections to these bodies, the Election Commission
earmarks some electoral constituencies as those which
are reserved for candidates belonging to the SC/ST
B
categories. For the purpose of these reservations, the
frame of reference is the total number of Lok Sabha or
Vidhan Sabha seats in a State and not the single position
of an MP or MLA respectively. Regarding the Chairperson
positions in Panchayats, it is therefore permissible to c
reserve a certain number of these offices in favour of
Scheduled Castes, Scheduled Tribes and women,
provided that the same is done in accordance with the
provisos to Article 243-0(4). [Para 41) [1021-H; 1022-A-D]
4.3. In the case of urban local bodies, Article 243-T(4)
D
also enables reservation of chairperson posts in favour
of Scheduled Castes, Scheduled Tribes and women.
However, there are no further specifications to guide the
reservation of chairperson positions in urban areas.
While it is not possible to ascertain the legislative intent
E
behind the same, one can perhaps theorise that there
was an assumption that the intended beneficiaries are in
a relatively better-off position to overcome barriers to
political participation in urban local bodies, when
compared with rural local bodies. [Para 42) [1022-E-F]
F
4.4. It was also submitted that since chairpersons of
Panchayats and Municipalities are entrusted with
executive powers, reserving these posts could prove to
be the precursor for reservations of executive offices at G
higher levels of government. It was even suggested that
the reservation of chairperson posts was akin to
reserving the posts of Chief Minister and Prime Minister
at the State an_d National level, respectively. This analogy
with the higher levels of government is misplaced. The
H
984
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A offices of chairpersons in Panchayats and Municipalities
are reserved as a measure of protective discrimination,
so as to enable the weaker sections to assert their voice
against entrenched interests at the local level. The
patterns of disadvantage and discrimination faced by
B persons belonging to the weaker sections are more
pervasive at the local level. Unlike elected representatives
in the Lok Sabha and the Vidhan Sabha who can fall
back on the support of mainstream political parties as
well as media scrutiny as a safeguard against
c marginalization and unjust discrimination, elected
representatives from the disadvantaged sections may
have no such support-structures at the local level. In the
said respect, the Union Parliament thought it fit to enable
reservations of Chairperson positions in order to ensure
0 that not only are the weaker sections adequately
represented in the domain of local self-government, but
that they also get a chance to play leadership roles. [Para
43) [1022-G-H; 1023-A-D]
4.5. While the exercise of electoral franchise is an
E essential component of a liberal democracy, it is a wellsettled principle in Indian law, that the right to vote and
contest elections does not have the status of
fundamental rights. Instead, they are in the nature of legal
rights which can be controlled through legislative means.
F The Constitution empowers the Election Commission of
India to prepare electoral rol!s for the purpose of
identifying the eligible voters in elections for the Lok
Sabha and the Vidhan Sabha. This suggests that the
right to vote is not an inherent right and it cannot be
G claimed in an abstract sense. Furthermore, the
Representation of People Act, 1951 gives effect to the
Constitutional guidance on the eligibility of persons to
contest elections. This includes grounds that render
persons ineligible from contesting elections such as that
H of a person not being a citizen of India, a person being
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
985
INDIA & ANR.
of unsound mind, insolvency and the holding of an 'office
A
of profit' under the executive among others. Thus, there
is no inherent right to contest elections since there are
explicit legislative controls over the same. [Para 45] [1024G-H; 1025-A-B]
Mohan Lal Tripathi v. District Magistrate, Rai Bareil/y,
(1992) 4 sec 80, referred to
4.6. It cannot be accepted that in view of the standard
B
of reasonableness, .fairness and non-discrimination
required of governmental action under Article 21 of the
C
Constitution, there is a case for invalidating the
restrictions placed on the rights of political participation
as a consequence of reservations in local selfgovernment. In the instant case, an affirmative action
measure and hence the test of proportionality is a far
D
more appropriate standard for exercising judicial review.
It cannot be denied that the reservation of chairperson
posts in favour of candidates belonging to the Scheduled
Castes, Scheduled Tribes and women does restrict the
rights of political participation of persons from the
unreserved categories to a certain extent. However, the
test of reasonable classification is met in view of the
legitimate governmental objective of safeguarding the
interests of weaker sections by ensuring their adequate
representation as well as empowerment in local selfgovernment institutions. The asymmetries of power
require that the Chairperson should belong to the
disadvantaged community so that the agenda of such
Panchayats is not hijacked for majoritarian reasons. [Para
46] [1025-C-G]
4.7. Irrespective of the concerns about the efficacy
of reservations in local self-government, it is not proper
for the judiciary to second-guess a social welfare
measure that has been incorporated by way of a
E
F
G
constitutio.r:ial amendment. [Para 47] [1026-C]
l;i
986
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[2010] 6 S.C.R.
A
l.R. Coelho v. State Tamil Nadu (2007) 2 SCC 1; His
Holiness Kesavananda Bharati Sripadagalvaru v. State of
Kera/a and Anr. (1973) 4 SCC 225; M.R. Balaji v. State of
Mysore AIR 1963 SC 649; Indra Sawhney v. Union of India
1992 Supp 3 SCC 217; Post Graduate Institute of Medical
B Education and Research v. K.L. Narasimhan (1997) 6 SCC
283; Janardhan Paswan v. State of Bihar AIR 1988 Pat 75;
Krishna Kumar Mishra v. State of Bihar AIR 1996 Pat. 112;
M. Nagaraj v. Union of India (2006) 8 SCC 212; N.P.
Ponnuswamy v. Returning Officer 1952 SCR 218; Jyoti Basu
C v. Debi Ghosal (1982) 1 SCC 691; Mohan Lal Tripathi v.
D
E
F
G
H
District Magistrate, Rai Bareilly (1992) 4 SCC 80; Rama Kant
Pandey v. Union of India (1992) 2 SCC 438; Ku/dip Nayar v.
Union of India (2006) 7 SCC 1; Indira Gandhi vs. Raj Narain
1975 Supp SCC 1, referred to.
Case Law Reference:
(2007) 2 sec 1
Referred to.
Para 9
(1973) 4 sec 225
Referred to
Para 9
AIR 1963 SC 649
Referred to
Para 13
1992 supp 3 sec 211
Referred to
Para 13,26, 38
(1997) 6 sec 283
Referred to.
Para 14
AIR 1988 Pat 75
Referred to.
Para 19, 40
AIR 1996 Pat. 112
Referred to.
Para 19, 40
c2oos) a sec 212
Referred to.
Para 21
1952 SCR 218
Referred to.
Para 21
(1982) 1 sec 691
Referred to.
Para 21
(1992) 4 sec 80
Referred to.
Para 21
(1992) 2 sec 438
Referred to.
Para 21
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
987
INDIA & ANR.
(2oos) 1 sec 1
Referred to.
Para 21
1975 Supp sec 1
Referred to.
Para 21
AIR 1999 Born 142
Approved.
Para 30
(2010) 1 SCALE 281
Referred to.
Para 39
(1992) 4 sec 80
Referred to
Para 45
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
356 of 1994.
Petition Under Article 32 of the Constitution of India.
W.P. (C) No. 245 of 1995
W.P. (C) No. 517 of 2005
WITH
A
B
c
D
Gopal Subramanium, ASG, Uday Holla, Rama Jois,
Salman Khurshid, Rakesh K. Khanna, K. Radhakrishnan,
A.Mariarputharn, R. Shanmugasundaram, Dinesh Dwivedi,
Hetu Arora, Anita Abrahim Dr. Rajeev Dhavan, Shail Kr.
Dwivedi, AAG, Naveen R. Nath, Lalit Mohini Bhat, Govind
Goyal, lmtiaz Ahmed, Naghma lmtiaz, Dr. Rashmi Khanna, Faizi
Ahmed Sayed, Vinay Kumar Garg, Rekha Pandey,
S.W.A.Qadri, Aman Ahluwalia, D.S. Mahra, B. Krishna Prasad,
Sushma Suri, B.V. Bairam Das, Anil Katiyar, Prashant
Bhushan, Meenakshi Arora, Jayshree Anand, K.K. Mahalik,
Ajay Pal, A.Subhashini, Vishwajit Singh, Ashok K. Mahajan,
Pramod Dayal, Sumita Hazarika, T. Harish Kumar, R. Ayyam
Perumal, Dinesh Kumar Garg, Aruneshwar Gupta, Anis
Suhrawardy, Hemantika Wahi, Pinky, K. Enatoli Serna,
G
Somnath, Janaranjan Das, Swetaketu Mishra, Kamini Jaiswal,
Naresh K. Sharma, Tara Chandra Sharma, Neelam Sharma,
Ajay Sharma, Kishan Datta, Rajeev Sharma, Rupesh Kumar,
E
F
S. Thananjayan, Aruna Mathur, Akhilesh Kumar (for Arputham,
Aruna & Co.), Ranjan Mukherjee, V.G. Pragasam, S.J. Aristotle,
H.
988
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A Prabhu Ramasubramanian, Sanjay R. Hegde, Vikrant Yadav,
A. Rohen Singh, Amit Kr. Chawla, Riku Sarma, Krishna
Sharma (for Corporate Law Group) Vibha Datta Makhija, P.V.
Dinesh, Niranjana Singh, Abhishek Chaudhary, Prateek
Dwivedi, Manish Srivastava, (for Kamlendra Mishra), Kh. Nobin
B Singh, K.N. Madhusoodhanan, R. Sathish, 8.S. Banthia, Vikas
Upadhyay, Suparna Srivastava (NP), Neeraj Gupta, Ram
Swarup Sharma, Rajesh Srivastava, Manish Kumar Saran,
Nirmal Kumar Ambastha, Gopal Singh, Manish Kumar, Pallavi
for the appearing parties.
c
The Judgment of the Court was delivered by
K.G; BALAKRISHNAN, CJI. 1. In these writ petitions, we
are required to examine the constitutional validity of some
aspects of the reservation policy prescribed for the composition
D of elected local self-government institutions. In particular, the
contentions have concentrated on the provisions that enable
reservations in favour of backward classes and those which
contemplate the reservation of chairperson positions in the
elected local self-government institutions. These provisions
E have been challenged as being violative of principles such as
equality and democracy, which are considered to be part of the
'basic structure' doctrine.
2. The Constitution (Seventy-third) Amendment Act, 1992
F [hereinafter '73rd Amendment'] and the Constitution (Seventyfourth) Amendment Act, 1992 [hereinafter '7 4th Amendment']
had inserted Part IX and Part IX-A into the constitutional text
thereby contemplating the powers, composition and functions
of local self-government institutions, i.e. the Panchayats (for rural
areas) and Municipalities (for urban areas). In pursuance of
G objectives such as democratic decentralization, greater
accountability between citizens and the state apparatus as well
as the empowerment of weaker sections, these constitutional
amendments contemplated a hierarchical structure of elected
local bodies. With respect to rural areas, Part IX contemplates
H three tiers of Panchayats, namely those of 'Gram Panchayats' ·
DR K. KRl$HNA MURTHY & ORS. v. UNION OF
989
JNDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
(for each village, or group of small villages), 'Panchayat Samitis'
A
(at the block level) and the 'Zilla Parishads' (at the District level).
For urban areas, Part IX-A prescribed the constitution of 'Nagar
Panchayats' (for areas in transition from a rural area to an urban
area), 'Municipal Councils' (for smaller urban areas) and
'Municipal Corporations' (for a larger urban area).
B
3. To better appreciate the leg;slative intent,_ it would be
instructive to refer to the following extract from the Statement
-of Objects and Reasons for the '?3rd Amendment:
"1. Though the Panchayati Raj Institutions have been in
C
existence for a long time, it has been observed that these
institutions have not been able to acquire the status and
dignity of viable and responsive people's bodies due to a
number of reasons including absence of regular elections,
prolonged supersessions, insufficient representation of D
weaker sections like Scheduled Castes, Scheduled Tribes
and women, inadequate devolution of powers and lack of
financial resources.
2. Article 40 of the Constitution which enshrines one of the
E
Directive Principles of State Policy lays down that the State
shall take steps to organise village panchayats and endow
them with such powers and authority as may be necessary
to enable them to function as units of self-government. In
the light of the experience in the last forty years and in view
of the short-comings which have been observed, it is
considered that there is an imperative need to enshrine
in the Constitution certain basic and essential features of
Panchayati Raj Institutions to impart certainty, continuity
and strength to them.
3. Accordingly, it is proposed to add a new Part relating
F
G
to Panchayats in the Constitution to provide for, among
other things, Gram Sabha in a village or group of villages;
constitution of Panchayats at village and other level or
levels; direct elections to all seats in Panchayats at the
H
990
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A
village and intermediate level, if any, and to the Offices of
Chairpersons of Panchayats at such levels; reservation of
seats for the Scheduled Castes and Scheduled Tribes in
proportion to their population for membership of
Panchayats and office of Chairpersons in Panchayats at
B
each level; reservation of not less than one-third of the
seats for women; fixing tenure of 5 years for Panchayats
and holding elections within a period of 6 months in the
event of supersession of any Panchayat; ... "
C In the same vein, we can refer to the following extracts from the
Statement of Objects and Reasons for the 74th Amendment:
D
E
F
G
H
"1. In many States, local bodies have become weak and
ineffective on account of a variety of reasons, including the
failure to hold regular elections, prolonged supersessions
and inadequate devolution of powers and functions. As a
result, Urban Local Bodies are not able to perform
effectively as vibrant democratic units of self-government.
2. Having regard to these inadequacies, it is considered
necessary that provisions relating to Urban Local Bodies
are incorporated in the Constitution, particularly for -
(i) putting on a firmer footing the relationship between the
State Government and the Urban Local Bodies with
respect to -
(a) the functions and taxation powers; and
(b) arrangements for revenue sharing
(ii) ensuring regular conduct of elections;
(iii) ensuring timely elections in the case of supersession;
and
(iv) providing adequate representation for the weaker
sections like Scheduled Castes, Scheduled Tribes and
women.
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
991
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
3, Accordingly, it is proposed to add a new Part relating
A
to the Urban Local Bodies in the Constitution to provide
for-
(a) constitution of three types of Muncipalities:
(i) Nagar Panchayats for areas in transition from a
rural area to urban area
(ii) Municipal Councils for smaller urban areas;
B
(iii) Municipal Corporations for larger urban areas:
C
(e) reservation of seats in every Municipality -
•
(i) for Scheduled Castes and Scheduled Tribes in
0
proportion to their population of which not less than
one-third shall be for women; ... "
4. Before outlining and addressing the contentions
advanced on behalf of the petitioners and the respondents, it
will be useful to survey the constitutional provisions that have
E
been called into question. The rival contentions relate to Article
243-0(4) and 243-T(4) which contemplate the reservation of
chairperson posts, as well as Article 243-0(6) and 243-T(6)
which enable reservations in favour of backward classes. With
respect to the reservation of seats in Panchayats, Article 243F
D reads as follows: -
243-D. 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
G
H
992
A
B
c
D
E
SUPREME COURT REPORTS
[2010) 6 S.C.R.
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 !he 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
th:J village or any other level shall be reserved for the
Scheduled Castes, the Scheduled Tribes and women in
such manner as the Legislature of a State may, by law,
provide:
Provided that the number of offices of Chairpersons
reserved for the Scheduled Castes and the Scheduled
F
Tribes in the Panchayats at each level in any State shall
bear, as nearly as may be, the same proportion to the total
number of such offices in the Panchayats at each level as
the population of the Scheduled Castes in the State or of
the Scheduled Tribes in the State bears to the total
G
population of the State:
Provided further that not less than one-third of the
total number of offices of Chairpersons in the Panchayats
at each level shall be reserved for women:
H
Provided also that the number of offices reserved under
DR. K. KRISHNA MURTHY & ORS. v. UNION OF
993
INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
this clause shall be allotted by rotation to different
A
Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and
the reservation of office of Chairpersons (other than the
reservation for women) under clause (4) shall cease to
have effect on the expiration of the period specified in
Article 334.
(6) Nothing in this Part shall prevent the Legislature of a
State from making any provision for reservation of seats
B
in any Panchayat or offices of Chairpersons in the
C
Panchayats at any level in favour of backward class of
citizens.
(emphasis supplied)
· Similarly, the composition of Municipalities is guided by the
D
reservation policy contemplated in Article 243-T:
243-T. Reservation of seats.