JUDGMENT R.K. Agrawal, J.
1. Vasudhaiva Kutumbakam, a sukta of one of our ancient Veda - Riga Veda, means "The Whole World is One Family". It is the code of life that is embedded in our heart beat, in our breath, in birth, in death, in our food, in love, in the experience of life and all that it contains. It is always and has always been true. People in our country have long cherished values which, in modern times, are best expressed under the rubric of universalism and various dimensions of democracy. Before the colonial intervention of the west and the rulers of the foreign original the participatory mode of governance from the grass roots to the top, devolution of political power at all levels, and cultural plurality were hallmarks of our social-political system. We had our own failings such as the obnoxious practice of untouchability, Mahatma Gandhi, the Father of Nation, called such persons as "Harijan" - son of God. The communitarian principles manifested through the caste system degenerated into hierarchical fundamentalism leading to a wide gap between the members of the society. For a section of the society all material resources and posts/offices were available in plenty. For others who were not so fortunate even one square meal was not available. These persons remained backward and were cut off from the main stream of the nation's life. After our country got independence from foreign rule, the founding fathers of our Constitution in the true spirit of Vasudhaiva Kutumbakam like any parent who take special care for any child who by birth or by other natural circumstances or otherwise is not equal to other children, were concerned for the upliftment of socially backward classes identified as Scheduled Castes and Scheduled Tribes and that is why special provisions for those people were made in the matter of membership of State Legislature and Parliament for a specified period and also in the matter of public employment. After a passage of four decades, when the necessity was felt for making provisions for local self-government both at the village panchayat level and urban municipality, while amending the Constitution, specific provision was made providing for reservation for specified categories of persons which by now not only meant Scheduled Castes, Scheduled Tribes but also women and persons belonging to other socially backward classes both for the membership as also for the Chairpersons. We are reminded of the well known principle enunciated by the famous scientist Newton - "To every action there is always an equal and opposite reaction and action-reaction forces act on the different bodies", commonly known as Newton's Third Law of Motion, not only applies to the field of science but has universal application in our life also. Here the reaction is by way of challenge regarding the constitutional validity of the provisions in the Constitution enabling the State Legislature to make laws for providing reservation for the office of Chairpersons in municipalities for persons belonging to Scheduled Castes, Scheduled Tribes, women and other socially Backward classes. Whether it is within the framework of the Constitution and is permissible or not, is the question on which thought provoking arguments have been advanced in the present two writ petitions.
2. In Civil Misc. Writ Petition No. 2247 of 2001 the two petitioners, Heera Lal Umar and Bhikhari Lal, who are residents of town Gola Bazar, district Gorakhpur, have challenged the provisions of Clauses (4) and (6) of Article 243T of the Constitution of India, as inserted by the Constitution (Seventy-fourth Amendment) Act, 1992 (hereinafter referred to as "the Constitution Amendment Act"), in Part IX-A of the Constitution of India, as unconstitutional. It may be mentioned here that the whole of Part IX-A was inserted by the aforementioned Constitution Amendment Act. They have also challenged the validity of the provisions of Section 9-A(5) of the U.P. Municipalities Act, 1916 (hereinafter referred to as "the Act") and the U.P. Municipality (Reservation and Allotment of Seats and Offices) Rules, 1994 (hereinafter referred to as "the Rules") as amended from time to time and to declare them as ultra vires. Apart from the aforesaid challenge, the petitioners have also sought for quashing of the notification dated 24.10.2000 and the subsequent election of the President in respect of the Nagar Panchayat, Gola Bazar, District Gorakhpur with a further direction to the Secretary, Nagar Vikas, Government of Uttar Pradesh, respondent No. 1, to conduct fresh election of the President, Nagar Panchayat, Gola Bazar, district Gorakhpur, according to the provisions of the amended Rules whereas in Civil Misc. Writ Petition No. 63611 of 2005 which has been filed by Dr. Naresh Chandra who claims himself to be the President, Nagar Palika Parishad, Mawana, district Meerut, the provision of Section 9-A(5) of the Act is sought to be declared as invalid in law and also for quashing the Rules. He has further sought a writ in the nature of mandamus directing the Principal Secretary, Local Body, U.P., Lucknow, respondent No. 1, not to reserve the post of the President in the coming election of the Nagar Palika Parishad and treat it as a general seat so that the candidates of all categories may contest the election and the citizens also have a better choice of electing a better candidate. In this petition, Dr. Naresh Chandra has not challenged the validity of Clauses (4) and (6) of Article 243T of the Constitution of India.
3. Briefly stated, the facts giving rise to both the petitions are as follows:
Facts :
Civil Misc. Writ Petition No. 2247 of 2001 :
4. The two petitioners claim to be the office bearers of a national political party, namely, the Bhartiya Janta Party. Whereas the petitioner No. 1 was nominated by the said Party as its candidate for the post of the President, Nager Panchayat, Gola Bazar, district Gorakhpur, which was to be held in the year 2000, the petitioner No. 2 claims himself to be the President. Nagar Mandal of the said Party. According to them, the Government of Uttar Pradesh, vide notification dated 28.9.2000 published (SIC) of the offices of the President of the Nagar Panchayats in the State applying reservation to various categories according to the Rules as amended by the U.P. Municipalities (Reservation and Allotment of Seats and Offices) (huh Amendment) Rules, 2000. On the basis of the aforementioned notification, the District Magistrate, Gorakhpur, respondent No. 2, notified a list on 4.10.2000 of the President of the Nagar Panchayats in Gorakhpur in which the office of the President, Gola Bazar, was shown as unreserved. He invited objections to the aforesaid list within seven days. According to the petitioners, in view of the amended Rules, the Nagar Panchayats were arranged firstly in the increasing percentage of population of Scheduled Caste and thereafter in the increasing percentage of population of Scheduled Tribe and then in the increasing percentage of population of other backward classes upto the number of seats reserved for them and lastly in the increasing population. The Nagar Panchayat, Gola Bazar, Gorakhpur, was put at serial No. 306 and was shown as unreserved. The petitioners claim that no body had filed any objection to the notification dated 4.10.2000 within the time or even after the expiry of seven days' period, either before the District Magistrate, Gorakhpur or before the State Government. After 11.10.2000 political activities started and various candidates made up their mind to contest the election. The petitioner No. 1 having been nominated by the Bhartiya Janta Party as its candidate for the office of the President, Nagar Panchayat, Gola Bazar, Gorakhpur, started his election campaign. However, the final notification for election was published on 24.10.2000 in which the Nagar Panchayat, Gola Bazar was put at serial No. 64 (from serial No. 306) and has been reserved for woman (backward) on the basis of which election for the office of the President, Nagar Panchayat, Gola Bazar, had been held. According to the petitioners, they filed representation dated 30.10.2000/8.11.2000 before the State Election Commission, U.P., and also a representation was sent to the Chief Minister. Government of Uttar Pradesh, through fax on 30.10.2000. The petitioners claim to have made another representation before the State Election Commission, Uttar Pradesh, on 20.12.2000 and also personally met the State Election Commissioner on 4.1.2001, whereupon he was informed that the State Election Commission has nothing to do with the notice dated 4.10.2000 and the elections are to be conducted on the said basis. Thereafter, the petitioners made a representation on 10.1.2001 before the Secretary, Nagar Vikas, Government of Uttar Pradesh, respondent No. 1, through fax but without any response, whereafter the petitioners have invoked the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India by challenging the vires of the provisions of the Constitution Amendment Act, the Act and the Rules mentioned hereinabove. They have also challenged the alleged arbitrary action of the State Government in reserving the office of the President, Nagar Panchayat, Gola Bazar, Gorakhpur for woman (backward) instead of the general/unreserved, as proposed.
Civil Misc. Writ Petition No. 6364 of 2005 :
5. In Civil Misc. Writ Petition No. 6364 of 2005, filed by Dr. Naresh Chandra, who claims to be a renowned surgeon of Mawana, district Meerut had been elected as the President of the Nagar Panchayat Parishad, Mawana, in the election held in the year 2000, which office, at that time, was not reserved for any of the specified categories. He has approached this Court on the ground that the respondents are bent upon to declare the schedule of reservation for the post of the Presidents of the Nagar Panchayat Parishads and to hold the election thereafter on the basis of such reservation. According to the petitioner, the post of the President of the Nagar Panchayat Parishad is a single unit post and no reservation on such post can be made.
6. We have hard Sri Kunal Ravi Singh, learned Counsel, and Sri V.K.S. Chaudhary, learned senior counsel, in the writ petition filed by Heera Lal Umar; Sri Ravi Kiran Jain, learned senior counsel, assisted by Sri Ajai Rajendra, Advocate, on behalf of the petitioner in the writ petition filed by Dr. Naresh Chandra; Sri S.M.A. Kazmi, learned Additional Advocate General, assisted by Sri S.P. Kesarwani, Standing Counsel, on behalf of the State of U.P. and Ors. State respondents and Sri Devi Shanker Shukla, learned Standing Counsel, appearing for the Union of India.
Rival submissions :
7. Sri V.K.S. Chaudhary, learned senior counsel, submitted that the democracy is the basic feature of the Constitution of India. By Clauses (4) and (6) of Article 243T of the Constitution of India, which have been inserted by the Constitution Amendment Act, the right to contest the election on the post of the President of the Nagar Panchayat, which is a part of the democracy, is sought to be taken away by excluding person other than the persons belonging to the specified categories, to contest and hold the office of the President. He submitted that the insertion of Clauses (4) and (6) of Article 243T in the Constitution of India, therefore, contravenes the provisions of Article 368 of the Constitution of India. In this connection, he invited the attention of the Court to the provision of Section 13-C of the Act, which lays down the qualification for election of a member. According to him, a person who is an elector for any ward in the municipality, can seek election as a Corporation in the said Municipality from any ward and it is not necessarily confined to that ward from where he is an elector. Under Section 43-AA of the Act, qualification for the President ship of a municipality has been given. It also specifies that a person to be chosen as a President of a municipality should be an elector for any ward in the municipal area. He, thus, submitted that for holding the post of the President of a municipality, the only requirement is that the person should be an elector from any ward in the municipal area. By virtue of the provisions of Clauses (4) and (6) of Article 243T of the Constitution of India, the State of U.P. has amended Section 9-A of the Act by the U.P. Act Nos. XII of 1994 and XXVI of 1995, whereby under Sub-section (5), the office of the President and the Vice-President of a municipality in the State have been reserved for the Scheduled Caste, the Scheduled Tribe, the backward class and the women, to be prescribed by the Rules, thus, depriving the petitioners from contesting for the post of the President of the municipality. He further submitted that unlike the provisions of Articles 84 and 173 of the Constitution of India, which provides for qualification for membership of the Parliament/State Legislature, whereunder a citizen of India is free to contest from any constituency throughout the country/State, except the reserved constituency for becoming a member of the Parliament/State Legislature, a person cannot contest the election for the Presidentship of a municipality unless he is an elector in any ward of the said municipal area.
8. Sri Chaudhary submitted that Clause (4) of Article 243T of the Constitution of India in so far as it makes the provision for reservation in the office of the President in municipalities, is violative of the basic structure of the Constitution of India. According to him, equality before the law is a part of the basic structure of the Constitution. Reservation, except as provided under Article 16(4) of the Constitution, runs counter to this basic structure. The Parliament was, thus, not empowered under Article 368 of the Constitution of India to amend and insert such a provision in the Constitution and, therefore, insertion of Clauses (4) and of Article 243T of the Constitution of India contravenes Article 368 of the Constitution of India. According to him, equality before the law as provided under Articles 14 and 15 of the Constitution of India are basic structure of the Constitution. Article 15(4) which was added later, does not speak about reservation, as does Article 16(4) of the Constitution of India. According to him, in the case of socially, and educationally backward classes, there is no other question but to improve them in respect of social status and education. This matter calls for positive action for improvement in their social life and learning. This is the object. The special provision spoken of must be something other than reservation, some constructive and affirmative action for these classes for removal of deficiency and for their upliftment.
9. Sri Chaudhary further submitted that even if Clauses (4) and (6) of Article 243T of the Constitution of India, without conceding are assumed to be valid, the reservation has to be provided by the Legislature of a State and not by the State Government which is the Rule making body under the Act. According to him, the provisions of Sub-section (5) of Section 9-A of the Act suffers from the vice of excessive delegation inasmuch as the State Legislature has abdicated its essential legislative function without laying down the policy and percentage of reservation for the Scheduled Caste, the Scheduled Tribe, the backward class and the women for the office of the President and the Vice-President of the municipality in the State of U.P.
10. He also submitted that it is well settled by the Apex Court in a catena of decisions that a single post/office cannot be reserved and the post/office of the President of a municipality being a single post, could not, therefore, be reserved and the provisions empowering reservation on such a single post is wholly illegal and unconstitutional.
11. Sri Chaudhary further submitted that the provisions of Clauses (4) and (6) of Article 243T of the Constitution of India cannot also be saved by taking recourse to the provisions of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of India, as both these provisions operate in different field.
12. Sri Chaudhary further submitted that in order to implement reservation policy, there must be some reasonable nexus with the object sought to be achieved. Nexus behind reservation in public employment is to provide job to those persons who due to their social and economic backwardness may not get the jobs. Reservation in election without ascertaining that a particular class is not represented in the ratio of its population is illegal and without jurisdiction.
13. So far as challenge to the merits of the notification dated 4.10.2000 issued by the State of U.P. is concerned, he submitted that in the notification dated 28.9.2000 Gola Bazar was mentioned at serial No. 306 and was proposed to be unreserved for the election to be held in the year 2000. It was reserved for the other backward class in the election held in the year 1995. However, without there being any objection, the Government of Uttar Pradesh, vide notification issued on 24.10.2000 by which at serial No. 64 against Gola Bazar the office of the President has been reserved for the backward class (woman). He further invited the attention of the Court to page 24A of the paper book, which is part of Annexure 1 to the writ petition, and submitted that the State Government has reserved the office of the President of the Nagar Panchayat, Gola Bazar, for the backward class and not for the backward class (woman), which establishes that some forgery has been done.
14. In support of his various pleas, he has relied upon the following decisions:
1. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ;
2. Dr. Chakradhar Paswan v. State of Bihar and Ors. ;
3. S.R. Bommai and Ors. v. Union of India and Ors. ;
4. Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. ;
5. Rasik Auto Stores and Ors. v. Navin V. Hantodkar and Anr. (1998) 8 SCC 176;
6. Indira Sawhney (II case) v. Union of India and Ors. ; and
7. Bidhya Charan Singha v. State of W.B. .
15. Sri Ravi Kiran Jain, learned senior counsel, submitted that under Entry 5 of List II of the Seventh Schedule, the State Legislature is competent to enact laws relating to local self-government. Any law to be enacted by the State Legislature is subject to the provision of the Constitution of India as provided under Article 245. According to him, the mandate of the Constitution by Clauses (4) and (6) of Article 243T is that the State Legislature has to provide for reservation of the office of the President in the municipality for the Scheduled Caste, the Scheduled Tribe, and the women as also for the other backward class of citizens. The mandate being positive and clear, the State Legislature by inserting Sub-section (5) of Section 9-A in the Act, has failed to make any provision for reservation for the above mentioned categories and instead has abdicated its essential legislative function in favour of the Rule making authority, i.e., the Government of Uttar Pradesh, which, under law, could not have been done. He submitted that the provisions of Sub-sections (1), (3), (4) and (6) of Section 9-A of the Act are verbatim reproduction of the provisions of Clauses (1), (2), (3) and (5) of Article 243T of the Constitution of India except that the words "backward classes" have been incorporated in. Sub-sections (1), (3), (4) and (6) of Section 9-A of the Act alongwith the words "Scheduled Caste and Scheduled Tribe". The Parliament while empowering the State Legislature by providing reservation for the office of the President of municipality in favour of the Scheduled Caste, the Scheduled Tribe, the women and the backward class has left the percentage and the number of seats in respect of each category at the discretion of the State Legislature and that is why it has not fixed the maximum limit of 1/3rd or any other limit as provided for number of seats in every municipality mentioned in Clauses (1), (2) and (3) of Article 243T of the Constitution of India. He, thus, submitted that the State Legislature could have provided for reservation of the office of the President of municipality but could not have left it to the Rule making authority to do so. Thus, the reservation for the post of the President in municipality which has been done under the Rules is wholly illegal and unconstitutional. In support of his various pleas, he has relied upon the following decisions:
1. Hamdard Dawakhana and Anr. v. The Union of India and Ors. ;
2. Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha ;
3. New Manek Chowk Spg. and Wvg. Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad and Ors. ;
4. Devi Das Gopal Krishnan v. State of Punjab and Ors. ;
5. The Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Anr. ; and
6. Krishna Mohan (P) Ltd. v. Municipal Corporation of Delhi and Ors. .
16. Sri Devi Shanker Shukla, learned Standing Counsel appearing for the Union of India, submitted that Part IX-A has been inserted in the Constitution of India by the Constitution Amendment Act. The aims and objects of inserting the said part was for strengthening the urban local bodies as it had conic to the notice of the Government of India that in many States urban local bodies had become weak and ineffective for various reasons including failure to hold regular elections, prolonged suppression and inadequate devolution of powers and functions with the result that the urban local bodies were unable to perform effectively as a vibrant democratic unit of local self-government. Having regard to these inadequacies, it was considered necessary that the provisions relating to the urban local bodies be incorporated in the Constitution itself, partly for putting on a firmer footing, the relationship between the State Government and the urban local bodies with respect to the functions and taxing powers, area for revenue sharing, ensuring regular conduct of elections, ensuring timely elections in case of supersession and providing adequate representation for the weaker sections, like, the Scheduled Caste, the Scheduled Tribe and the women. According to him, the Constitution can be amended by the Parliament in exercise of its power under Article 368. Relying upon Clause (4) of Article 368 of the Constitution of India, he submitted that the provisions of Article 13 has no application to any amendment made in the Constitution itself and, therefore, the Constitution Amendment Act cannot be challenged for violation of the fundamental rights guaranteed under Part III.
17. According to him, special provision in the form of reservation can be made for advancing any socially and educationally backward class of citizens and for the Scheduled Caste and the Scheduled Tribe and there is no limit to the extent of reservation under Clause (4) of Article 15. The provisions of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution of India have to be read harmoniously. According to him, the concept of reservation on a single post under the service jurisprudence is not applicable in the case of reservation of the office of the President of municipality. The office of the President of municipality is neither an employment nor appointment within the meaning of Article 16 of the Constitution of India as there is no employ and employee relationship. No person is appointed as the President of a municipality but, on the contrary, he is elected to the office. The concept of single cadre post as applicable to service jurisprudence has no application to a democratic office which is filled by way of election and hence the principle of 100% reservation would not be applicable. He further submitted that the view taken by the Patna High Court in the case of Krishna Kumar Misra and Anr. etc. etc. v. State of Bihar and Ors. and the Calcutta High Court in the case of Bidhya Charan Singha (supra) do not lay down the correct law as they have not taken into consideration the scope of Article 13(4) and Article 368(3) of the Constitution of India nor they have considered the question as to whether the office of the President is an appointment or employment under the State. In support of his aforesaid pleas, he has relied upon the following decisions :
1. In re Article 143, Constitution of India and Delhi Laws act (1912) etc. AIR 1951 SC 332;
2. C.K. Achutan v. The State of Kerala and Ors. ;
3. Champaklal Chimanlal Shah v. The Union of India ;
4. Sajjan Singh and Ors. v. The State of Rajasthan and Ors. ;
5. L.C. Golaknath and Ors. v. State of Punjab and Ors. ;
6. A.V.S. Narsimha Rao and Ors. v. The State of Andhra Pradesh and Anr. ;
7. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ;
8. State of Maharashtra v. Chandrabhan ,
9. Toguru Sudhakar Reddy and Anr. v. The Govt. of Andhra Pradesh and Ors. ;
10. Govt. of Andhra Pradesh v. P.B. Vijaykumar and Anr. ;
11. Sanjoy Bhattacharjee v. Union of India and Ors. ;
12. Ajit Singh (II) v. State of Punjab and Ors. ;
18. Sri S.M.A. Kazmi, learned Additional Advocate General, raised a preliminary point regarding maintainability of the writ petitions. He submitted that the cause of action to the petitioners in Civil Misc. Writ Petition No. 2,247 of 2001 does not survive as the term of the President, Nagar Panchayat. Gola Bazar, Gorakhpur had expired. He further submitted that in respect of the ensuing election, reservation to various post of the President in the municipalities is yet to be made and, therefore, the petitioner in Civil Misc. Writ Petition No. 63611 of 2005 also do not have any cause of action either to challenge the constitutional validity of Clauses (4) and (6) of Article 243T of the Constitution of India or the provisions of Sub-section (5) of Section 9-A of the Act and the Rules, in support whereof he has relied upon the following two decisions :
1. Bharat Coking Ltd. and Anr. v. Sanjeev Coke Manufacturing Company ; and
2. Basant Kumar v. State of Rajasthan and Ors. .
19. On merits, he submitted that the Parliament has incorporated Clauses (4) and (6) of Article 243T in the Constitution of India to promote the welfare of the people by securing and protecting a social order in which social, economical and political justice is available in all the institutions of the national life and further to minimize the inequalities in status, facilities and opportunities amongst individuals residing in different areas and engaged in different vocations, as provided under Article 38 of the Constitution of India, which forms part of Part IV being the Directive Principles of State Policy. It is to give effect to a social order for the promotion of the welfare of the people and any amendment made in the Constitution with an object to promote or to incorporate the Directive Principles of State Policy, cannot, by any stretch of imagination, be held to be unconstitutional or destructive of the basic feature of our Constitution. According to him, the right to contest any election is not a fundamental right. It has to be conferred by a statute. Likewise, the right, if any, to contest for the office of the President of a municipality is not a fundamental right. It is only a statutory right. If the Parliament in its wisdom has taken away the right of a particular class of person to contest for the membership of the municipality or for the office of the President of a municipality, the person so aggrieved cannot complain of any breach of his fundamental right. Further, the right to contest for the office of the President has not been abrogated hut has only been abridged inasmuch as in view of Clause (5) of Article 243T, reservation provided under Clauses (1), (2) and (4) shall cease to have effect on expiration of the period specified in Article 334 which at present provides for a period of sixty years from the commencement of the Constitution. According to him, as under Clause (4) of Article 15 of the Constitution of India, the States have been empowered to make special provision for the advancement of any socially and educationally backward classes of citizens, the Scheduled Caste and the Scheduled Tribe as also Clause (3) of Article 15 empowers the State for making special provision "for women and children, the provision of Clauses (4) and (6) of Article 243T of the Constitution of India is not a negation of any fundamental right. In fact, it serves the objective provided in Article 38 of the Constitution of India. According to him, the spirit for making the special provision for women, children, socially and educationally backward classes of citizens, the Scheduled Caste, and the Scheduled Tribe has been enshrined in our Constitution under Articles 15 and 16 and, therefore, the provisions of Clauses (4) and (6) of Article 243T of the Constitution of India cannot be said to have altered the basic structure of the Constitution. On the other hand, it is a step in the right direction for advancement of the have not and oppressed citizens. It gives them a chance to hold the office of the President of a municipality and, therefore, is a step towards removal of inequalities.
20. Sri Kazmi further submitted that there is a presumption regarding constitutionality of legislation and heavy burden lies upon the petitioners to prove unconstitutionality of the Act which the petitioners have failed to discharge in the present case.
21. So far as the question regarding 100% reservation on a single post is concerned, he submitted that the principle applicable in service jurisprudence regarding non-reservation on a single post would not be applicable in respect of election to be held for the post of President of a municipality. According to him, the Parliament itself has taken care of such a situation while providing that the State Legislature can make laws for the Scheduled Caste, the Scheduled Tribe, the women, backward classes of citizens for the office of the President in the municipalities. The words "Presidents in Municipalities" have been used in a plural sense meaning thereby that all the municipalities in the State have to be taken as a body for providing reservation on the post of the President. Such a provision has not been made in. respect of appointment/employment under the service law and, therefore, the decisions relied upon by the learned Counsel for the petitioners regarding reservation on a single post which all are under the service jurisprudence, would not be applicable.
22. He further submitted that the State Legislature while substituting Section 9-A of the Act by the U.P. Act No. XII of 1994 and after amendment by the U.P. Act No. XXVI of 1995 has, by Sub-section (5), treated all the municipalities as a group for the purposes of reserving the office of the Presidents and Vice-Presidents of municipalities in favour of the specified categories of persons. He, thus, submitted that the provision of Sub-section (5) of Section 9-A of the Act is a valid piece of legislation.
23. Coming to the submission advanced by the learned Counsel for the petitioners that the State Legislature has abdicated its essential legislative function by authorizing the Rule making authority to provide the manner of reservation of the office of the Presidents and Vice-Presidents in Municipalities in the State in favour of specified categories of person, he submitted that under Clauses (4) and (6) of Article 243T of the Constitution of India the Parliament had empowered the State Legislature to provide reservation by law. Law, according to him, not only comprises an Ordinance promulgated by the Governor or an Act passed by the State Legislature but also encompasses within its ambit the Rules made under the statutory provision, Regulations, Bye-laws, Notifications and the Orders issued by the executive. He, thus, submitted that if under Sub-section (5) of Section 9-A of the Act the State Legislature has empowered the Rule making authority to provide for reservation, it cannot be faulted. The necessary guidelines are available under Section 9-A of the Act itself which provides for reservation of seats. The object of reservation can be gathered from the provisions of Article 243T of the Constitution of India and Section 9-A of the Act. The basic reservation policy has been enacted by the State Legislature which is reflected under Section 9-A of the Act and Ors. matters are only ancillary. He also pressed into aid the provision of Articles 73 and 162 of the Constitution of India which provides that the executive power of the Union and the State respectively shall extend to all matters with respect to which the Parliament/State Legislature has the power to make laws. In this view of the matter also, Sri Kazmi submitted that the provisions of Sub-section (5) of Section 9-A and the Rules are valid piece of legislation and the reservations have been made accordingly.
24. He also referred to the provisions of Article 243ZA and 243ZF of the Constitution of India which provides that the Legislature of a State may, by law, make provision with respect to all matters relating to or in connection with election to the municipalities or for continuance of existing laws and municipalities for a period of one year from the commencement of the Constitution Amendment Act unless earlier amended or repealed by the competent Legislature.
25. In support of his various pleas, he has relied upon the following decisions:
1. Rai Sahib Ram Jawaya, Kanpur and Ors. v. State of Punjab ;
2. Sri Ram Krishna Dalmiya etc. v. Sri Justice S.R. Chandolkar and Ors. ;
3. Tata Iron and Steel Co. Ltd. v. Workmen of Tata Iron and Steel Co. Ltd. and Ors. ;
4. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ;
5. Smt. Indira Nehru Gandhi v. Sri Raj Narain ;
6. The Superintendent and Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and Ors. ;
7. The State of Madhya Pradesh v. Ramcharan ;
8. The Registrar of Cooperatife Societies and Anr. v. K. Kunjabmu and Ors. ;
9. Waman Rao and Ors. v. Union of India and Ors. ;
10. Sanjeev Coke Manufacturing Company v. Bharat Coking Ltd. and Anr. ;
11. Balasinor Nagrik Cooperative bank Ltd. v. Babubhai Shankerlal Pandya and Ors. ;
12. Indira Sawhney etc. etc. (I case) v. Union of India and Ors. ;
13. Krishna Kumar Misra and Anr. etc. etc. v. State of Bihar and Ors. ;
14. State of Bihar v. Bihar Distillery Ltd. ;
15. Saraswati Devi v. Shanti Devi (Smt.) and Ors. ;
16. Agricultural Market Committee v. Shalimar Chemical Works Ltd. ;
17. Kasambhai F. Ghanchi v. Chandubhai D. Rajput and Ors. ;
18. Union of India v. Elphin Stone Spinning and Weaving Co. Ltd. and Ors. ;
19. Basant Kumar v. State of Rajasthan and Ors. ;
20. In Special Reference No. 1 of 2002 ; and
21. Bidhya Charan Singha v. State of W.B. and Ors. .
26. Sri Kazmi further submitted that the controversy raised before the Patna High Court and the Calcutta High Court was entirely different. He submitted that a Full Bench of the Andhra Pradesh High Court in the case of Prakarsham District Sarpanchas Association v. Government of Andhra Pradesh, Panchayat Raj Department 2001 ALT-1-138, has upheld the validity of Clause (6) of Article 243D of the Constitution of India. He also referred to a Division Bench decision of Lucknow Bench of this Court in Civil Misc. Writ Petition No. 3963 (M/B) of 2005, Krishna Dutt Mishra and Anr. v. State of U.P. and Ors. decided on 18.7.2005, wherein this Court has upheld the validity of the provisions of the third proviso to Section 11-A(2) and the second proviso to Section 12(5)(a) of the U.P. Panchayat Raj Act, 1948 and Ors. allied provisions of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961.
27. Sri Kunal Ravi Singh, in reply submitted that under Clauses (4) and (6) of Article 243-T of the Constitution of India, the Parliament has mandated the State Legislature to make laws for providing reservation for the offices of the Presidents of municipalities for specified categories of persons. The mandate being clear upon the State Legislature to make law, it could not have provided for the Rule making authority to provide for reservation for carrying out the purpose of Clauses (4) and (6) of Article 243-T of the Constitution of India. In effect, he referred to the maxim "Delegatus non potest delegare" which means that a delegatee cannot sub delegate its power. He further submitted that the provisions of Sub-section (5) of Section 9-A of the Act gives uncanalised and unguided powers to the Rule making authority for providing reservation. According to him, the State Legislature in Sub-section (5) of Section 9-A of the Act has neither laid down the policy nor the maximum percentage of each category of specified persons for whom the reservation has to be made for the offices of the Presidents and Vice-Presidents of municipalities. Such a delegation is not permissible. According to him, the powers can be delegated but essential legislative function cannot be delegated at all. In the present case the State Legislature has delegated the essential legislative function.
28. He has further submitted that a single post cannot be reserved and the Directive Principle of State Policy is only a guiding factor. It cannot be taken recourse to for destroying the basic features of the Constitution. The Right to contest election is a statutory right which flows from the Representation of Peoples Act, which is a Parliamentary enactment and cannot be set at naught by making reservation on the office of President of a municipality.
29. According to him, Clauses (3) and (4) of Article 15 and Clause (4) of Article 16 had empowered the State to make laws for the upliftment of certain categories of persons but it does not mean that while uplifting them, they should be converted into majority, i.e., more than 50%. In the present case, as the office of the President in a municipality is a single post, it cannot be reserved at all. Thus, the petitioners are entitled for the reliefs claimed.
30. In support of his aforesaid pleas, he has referred to the following decisions:
1. Mangulal Chunnilal v. Manilal Maganlal and Anr. ;
2. Krishna Kumar Misra and Anr. etc. etc. v. State of Bihar and Ors. ;
3. Agricultural Market Committee v. Shalimar Chemical Works Ltd. ;
4. Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. ;
5. S.R. Murthy v. State of Karnataka and Ors. ;
6. Anand Narain Singh v. U.P. Secondary Education Services Selection Board, Allahabad and Ors. 2004 ALJ 1211; and
7. State of Rajasthan and Ors. v. Basant Nahata .
Discussion :
Prelimianry objection regarding maintainability of the petitions :
31. Taking up the preliminary objection raised by Sri S.M.A. Kazmi, learned Additional Advocate General, regarding maintainability of the writ petition first, we find that Civil Misc. Writ Petition No. 2247 of 2001, preferred by Heera Lal Umar and Anr., was presented before the Registry on 17.1.2001. It came up before the Court on 19.1.2001 when the Court was pleased to issue notices to the Attorney General of India and the Advocate General of the State of U.P., returnable after eight weeks. Notices were also issued to other respondents also. At that time, the elections for the post of the President of the Nagar Panchayat, Gola Bazar, district Gorakhpur had already been held. The said post had been reserved for the backward class (woman). The petitioners therein have exhausted all the remedies, viz., making of representation before the State Election Commissioner, the Secretary, Nagar Vikas, Government of Uttar Pradesh, as also all other concerned authorities, but without any response. The matter remained pending for about 2 years when the Registry, on 11.3.2003, gave a report that the counter affidavit filed on behalf of the respondent No. 3 (a private respondent who had been elected as President, Nagar Panchayat, Gola Bazar, district Gorakhpur) and the rejoinder affidavit had been placed on record. None of the parties took any steps nor made any efforts to get the matter decided at an early date presumably for the reason that the election for the post of the President had already been held. When the next election became due and was expected to be held shortly there was an anxiety to get the matter decided before the next election. However, from the State there was no anxiety to get the matter decided as they, for reasons best known, did not choose to file the response/counter affidavit for bringing on record their stand. The case was thereafter listed for admission before the Court on 27.7.2005, when it was directed to be listed on 1.8.2005. On 1.8.2005, the Court issued fresh notices to the learned Attorney General of India and the learned Advocate General, State of U.P. The matter was directed to be listed on 29.8.2005. On 29.8.2005, the case was taken up when the counsel for the Union of India was not present and, therefore, it was directed to be listed peremptorily in the next cause list whereupon it was listed on 5.9.2005 when Sri K.C. Sinha, learned Additional Solicitor General of India prayed for and was granted three weeks and no more time to file the counter affidavit. The State of U.P. was also directed to file the counter affidavit within the same period and the matter was directed to be listed on 5.10.2005. On 5.10.2005, Sri Devi Shanker Shukla, learned Standing Counsel for the Union of India, appeared and prayed for further time to file the counter affidavit which prayer was opposed by Sri V.K.S. Chaudhary, learned senior counsel. However, as the constitutional validity of some of the provisions of the Constitution Amendment Act was challenged, the Court, in the interest of justice, granted four weeks' further time to file the counter affidavit and the matter was fixed for 16.11.2005. Upon an application being filed on 16.11.2005 by the learned Standing Counsel appearing for the Union of India that a draft counter affidavit had been sent to the Ministry concerned for vetting and was expected very shortly, the time for filing the counter affidavit was extended upto 31.11.2005 and the matter was directed to be listed peremptorily as first case on 7.12.2005. It may be mentioned here that on behalf of the respondent No. 4, i.e., the Union of India, counter affidavit has been filed only on 5.12.2005. The State of U.P. and the District Magistrate, Gorakhpur had not filed any counter affidavit. It appears that the matter was listed on 7.12.2005 but because of paucity for time it could not be taken up. It was again listed before the Court on 21.12.2005 when on a joint request of the learned Counsel for the parties, it was directed to be listed peremptorily on 4.1.2006. The matter was taken up on 4.1.2006 on regular basis and has been heard thereafter.
32. From the aforesaid narration of fact, it would be seen that the petitioners have approached this Court for redressal of their grievance at the earliest and if on account of non-listing of the case or being not taken up for one reason or the other, the petitioners cannot be put to any blame. Even otherwise, as the validity of a constitutional provision was involved, in the absence of any counter affidavit being filed by the Union of India, the interest of justice required to await the response of the Union of India so that adjudication of such an important issue can be done in a proper manner, without giving an opportunity of having any grievance of any party that they could not be file their response.
33. Moreover, we find that in Civil Misc. Writ Petition No. 63611 of 2005, Dr. Naresh Chandra had challenged the validity of Sub-section (5) of Section 9-A of the Act as also the Rules and had further sought a direction to the respondent No. 1, i.e., the State of U.P. through its Principal Secretary, Local Bodies, U.P., Lucknow, not to reserve the post of the President of the Nagar Panchayat in the coming election and treat it as a general scat so that the candidate of all categories may contest the election and the citizens also have a better choice of electing a better candidate. The election of the President, Nagar Panchayats, are scheduled to be held in this year and, therefore, the plea regarding maintainability of the writ petition on the ground that the cause of action does not survive or reservations to various post of the Presidents in municipalities is yet to be made, would not hold good.
34. It may be mentioned here that a Constitution Bench of five Hon'ble Judges of the Apex Court in the case of Minerva Mills Ltd. and Ors. v. Union of India and Ors. , has repelled a similar preliminary objection raised by the Attorney General and the Additional Solicitor General of India regarding consideration of the question raised by the petitioners therein as regards the validity of Sections 4 and 53 of the Forty Second Amendment made to the Constitution. The preliminary objection raised was to the effect that the issue formulated for consideration of the Court 'whether the provisions of the Forty Second Amendment of the Constitution which deprived the fundamental rights of their supremacy and, inter alia, made them subordinate to the Directive Principles of State Policy are ultra vires the amending power of Parliament?' is too wide and academic and it was urged that since it is a settled practice of the Court not to decide the academic question and since the property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the Forty Fourth Amendment, the Court should not entertain any argument on the point raised by the petitioners. The Apex Court was of the view that "it is settled principle of this Court not to decide the academic question and our Court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. It is only when the rights of persons are directly involved that relief in granted by this Court. However, the Court did not upheld the preliminary objection in the following words:
43. But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards the constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42nd Amendment is there for any one to see and by its Sections 4 and 55 amendments have been made to Articles. 31C and 368 of the Constitution. An order has been passed against the petitioners and Section 18A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved.
44. Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of justice to settle the true position. Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a Jaw may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into operation and which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes. We, therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.
35. In the case of Bharat Coking Ltd. (supra), relied upon by Sri Kazmi, another Constitution Bench of the same strength of the Apex Court had occasion to consider its earlier decision in the case of Minerva Mills Ltd. (supra) and had expressed serious reservation upon the view expressed for overruling the preliminary objection in the following words:
11...An objection was raised before the Court by the learned Attorney General that the Court should not concern itself with hypothetical or academic questions. The objection was overruled on the ground that the Forty-second Amendment was there for any one to see and that the question raised was an important one dealing with, not an ordinary law, but, a constitutional amendment which had been brought into operation and which of its own force permitted the violations of certain freedoms through laws passed for certain purposes. We have serious reservations on the question whether it is open to a Court to answer academic or hypothetical questions on such considerations, particularly so when serious constitutional issues are involved. We (judges) are not authorised to make disembodied pronouncements on serious and cloudy issues of constitutional policy without battle lines being properly drawn. Judicial pronouncements cannot be immaculate legal conceptions. It is but right that no important point of law should be decided without a proper lis between parties properly ranged on either side and a crossing of the swords. We think it is inexpedient for the Supreme court to delve into problems which do not arise and express opinion thereon.
36. In the case of Basant Kumar (supra), the Apex Court has held that where the stage at which the dead rent has to be fixed in a case of this nature has not arisen, we shall not engage ourselves in an academic exercise of finding out that the relevant Rules arc in conformity with the view expressed by this Court or not and such an exercise will be undertaken in a case where it is necessary to do so.
37. It may be mentioned here that a Constitution Bench of the Apex Court in Special Reference No. 1 of 2002 , has held that if the questions referred are likely to arise in future or such a question is of public importance or there is no decision of the Supreme Court which has already decided the questions referred, the Supreme Court is well within its jurisdiction to answer/advice the President in a reference made under Article 143(1) of the Constitution.
38. The decisions relied upon by Sri Kazmi would not be applicable in the present case for the reason that the election for the post of the Presidents of the Nagar Panchayat and the municipality are to be held shortly in the year 2006 itself. The Government of Uttar Pradesh is going to make reservation for the Scheduled Caste, Scheduled Tribe, Backward Class and the women in accordance with the Rules. The question raised in the present petitions is of great importance and, therefore, it would be expedient in the interest of justice to settle once for all the true position. If the preliminary objection is sustained, the result would be that if the petitions remain pending in a Court of law for no fault of the petitioners, then after some time, the petitioner would be non-suited only on the ground that no relief can be granted as the matter has become academic only. In the present case the validity of the constitutional amendment as also the provisions of the Act and the Rules are up for consideration providing for reservation on the post of the President in a municipality which is also otherwise of great public importance and, therefore, it would not be in the interest of justice to throw out the petitions only on this ground. We, therefore, overrule the preliminary objection raised by the learned Additional Advocate General.
Validity of Clause (4) and (6) of Article 243-T of the Constitution of India :
Provisions of the Constitution of India :
39. The following provisions of the Constitution of India are to be taken into consideration while deciding the validity of Clauses (4) and (6) of Article 243-T of the Constitution, which, for ready reference, are reproduced below :
12. Definition. - In this Part, unless the contest otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
13. Laws inconsistent with or in derogation of the fundamental rights. --(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this Article, unless the context otherwise requires,--
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.
14. Equality before law. --The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. --(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to--
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this Article shall prevent the State from making any special provision for women and children.
(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment. --(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.
(5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
38. State to secure a social order for the promotion of welfare of the people. --(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
243-T. Reservation of seats. - (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipally 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 Municipality as the population of the Scheduled Castes in the Municipal area 01 of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under Clause (1) shah 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 Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a municipality.
(4) The office of Chairpersons in the Municipalities 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.
(5) The reservation of seats under Clauses (1) and (2) and the reservation of offices 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 in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.
368. Power of Parliament to amend the Constitution and procedure therefor. -- (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in--
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this Article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in Article 13 shall apply to any amendment made under this Article.
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this Article whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.
40. Coming to the merits of the case, we find that the para meters of the organs of the local self-government contained in Part IX-A which consists of Article 243-P to 243-ZG, was inserted by the Constitution Amendment Act with effect from 1.6.1993. The statement of Objects and Reasons appended to the Seventy Third Amendment Bill 1991, which was enacted as the Constitution (Seventy Fourth Amendment) Act, 1992 amongst others, mentions for reservation of the office of the Chairperson for the Scheduled Caste, Scheduled Tribe and the women, as may be specified in the State law. The statement of objects and reasons are reproduced below:
STATEMENT OF OBJECTS AND REASONS 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.
3. Accordingly, it is proposed to add a new part relating to the Urban Local Bodies in the Constitution to provide for-
(a) constitution of three types of Municipalities:
(i) Nagar Panchayats for areas in transition from a rural area to urban area;
(ii) Municipal Councils for smaller urban areas; -
(iii) Municipal Corporations for larger urban areas.
The broad criteria for specifying the said areas is being provided in the proposed Article 243-O;
(b) composition of Municipalities, which will be decided by the Legislature of a State, having the following features:
(i) persons to be chosen by direct election;
(ii) representation of Chairpersons of Committees, if any, at ward or other leveles in the Municipalities;
(iii) representation of .persons having special knowledge or experience of Municipal Administration in Municipalities (without voting rights);
(c) election of Chairpersons of a Municipality in the manner specified in the State law;
(d) constitution of Committees at ward level or other level or levels within the territorial area of a Municipality as may be provided in the State law;
(e) reservation of seats in very Municipality -
(i) for Scheduled Castes and Scheduled Tribes in proportion to their population of which not less than one-third shall be for women;
(ii) for women which shall not less than one-third of the total number of seats;
(iii) in favour of backward class of citizens if so provided by the Legislature of the state;
(iv) for Scheduled Castes, Scheduled Tribes and women in the office of Chairpersons as may be specified in the State law;
(F) fixed tenure of 5 years for the Municipality and re- election within six months of end of tenure, If a Municipality is dissolved before expiration of its duration, elections to be held within a period of six months of its dissolution;
(g) devolution by the State Legislature of powers and responsibilities upon the Municipalities with respect to preparation of plans for economic development and social justice, and for the implementation of development schemes as may be required to enable them to function as institutions of self-government;
(h) levy of taxes and duties by Municipalities, assigning of such taxes and duties to Municipalities by State Governments and for making grants-in-aid by the State to the Municipalities as may be provided in the State law;
(i) a Finance Commission to review the finances of the Municipalities and to recommend principles for-
(1) determining the taxes which may be assigned to the Municipalities;
(2) Sharing of taxes between the State and Municipalities;
(3) grants-in-aid to the Municipalities from the Consolidated Fund of the State;
(j) audit of accounts of the Municipal Corporations by the Comptroller and Auditor-General of India and laying of reports before the Legislature of the Stale and the Municipal Corporation concerned;
(k) making of law by a State Legislature with respect to elections to the Municipalities to be conducted under the superintendence, direction and control of the chief electoral officer of the State;
(l) application of the provisions of the Bill to any Union territory or part thereof with such modifications as may be specified by the President:
(m) exempting Scheduled areas referred to in Clause (1), and tribal areas referred to in Clause (2), of Article 244, from the application of the provisions of the Bill. Extension of provisions of the Bill to such areas may be done by Parliament by law;
(n) disqualifications for membership of a Municipality;
(o) bar of jurisdiction of Courts in matters relating to elections to the Municipalities.
4. The Bill seeks to achieve the aforesaid objectives.
41. From a reading of the provisions of Article 243-T, it is seen that provides for reservation of seats. Clause (1) deals with the reservation of seats for the Scheduled Castes and the Scheduled Tribes in every municipality vis-a-vis their population and proportion of total number of seats to be allotted by rotation to different constituencies. Clause (2) deals with the reservation of seats for the women to the extent of 1/3rd of the total number of seats reserved under Clause (1) belonging to the Scheduled Castes and the Scheduled Tribes, as the case may be. Clause (3) deals with the overall reservation provided to women in a municipality. Clause (4) provides for reservation of the office of Chairperson in the municipality in favour of the Scheduled Castes, Scheduled Tribes, and women in a manner to be provided by law by the Legislature of the State Clause (5) provides that the reservation provided under Clauses (1) and (2) and the reservation of the office of Chairperson other than the reservation for women under Clause (4), would cease after the expiration of the period specified under Article 334 which is sixty years from the date of commencement of the Constitution of India. However, Clause (6) enables the State Legislature to make provision for reservation of seats in a municipality or the office of the Chairperson in a municipality in favour of Backward Classes of citizens.
42. The Parliament has been empowered to amend the Constitution under Article 368. The Parliament has amended the Constitution by inserting Part IX-A by the Constitution Amendment Act. The Bill has been ratified by resolutions of not less than half of the State Legislature in the country.
Presumption regarding constitutionality :
43. It is well settled that an Act, what to say of a Constitution Amendment Act, is presumed to have been enacted within the four corners of the provisions of the Constitution. There is a presumption regarding its constitutionality.
44. In the case of Charanjit Lal Chowdhury v. The Union of India and Ors. , and Shri Ram Krishna Dalmia and Ors. v. Shri Justice S.R. Tendotkar and Ors. , the Apex Court has held that it is well funded that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been clear transgression of the constitutional principles.
45. In the case of The State of Bombay and Anr. v. F.N. Balsara AIR 1951 SC 318, and Mahant Modi Das v. S.P. Sahi , the Apex Court has held that the presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
46. The aforesaid decisions have been followed by the Apex Court in the case of Hamdard Dawakhana (supra).
47. In the case of Jalan Trading Co. (P) Ltd. (supra) the Apex Court has held that there is a presumption residing constitutionality of a statute when the challenge is founded on Article 14 of the Constitution and the onus of proving unconstitutionality lies upon the person challenging it.
48. The Apex Court in the case of Girish Kumar Navalakha (supra) has held that approach of judicial restraint and presumption of constitutionality requires that the legislature is given the benefit of doubt about its purpose.
49. In the case of Bihar Distillery Ltd. (supra) the Apex Court has held that the approach of the Court while examining the challenge to the constitutionality of an enactment is to start with the presumption of constitutionality and the Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Apex Court has further held that the Court should not approach the enactment with a view to pick hole or to search defects for drafting much less inexactitude of language employed. Indeed any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interferred with. Unconstitutionally must be plainly and clearly established before the enactment is declared as void.
50. In the case of Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors. , the Apex Court has held that a statute is construed so as to make it effective and operative. There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will.
51. Thus, we have to treat Clauses (4) and (6) of Article 243-T of the Constitution of India as valid unless the petitioners prove otherwise.
52. It is also well established that mere possibility of abuse of a provision of law does not per se invalidate the legislation. It must be presumed unless the contrary is proved, that the administration and application of a particular law would be clone not with an evil eye and unequal hand, as held by the Apex Court in the case of A. Thangal Kunju Musaliar v. M. Venkatichalam Potti .
53. In the case of Budhan Chowdhry v. State of Bihar , a contention was raised that a provision of law may not be discriminatory but it may lend itself to abuse bringing about discrimination between the persons similarly situated. The Apex Court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.
54. In the case of Mafatlala Industries Ltd. v. Union of India (1997) 3 SCC 536, a Bench of nine Hon'ble Judges of the Apex Court observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable.
55. In the case of Collector of Customs v. Nathella Samapthu Chetty (1962) 3 SCR 786, the Apex Court observed that the possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.
56. In the case of State of Rajasthan v. Union of India , the Apex Court has held that it must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief. (See Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of sri Shirur Mutt ),
57. The Apex Court in the case of Maulavi Hussein Haji Abraham Umarji v. State of Gujarat ; Unique Butyle Tube Industries (P) Ltd. v. U.P. Financial Corporation ; and Padma Sundara Rao v. State of T.N. , while interpreting a provision has held that the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.
58. The Apex Court in the case of Sushil Kumar Sharma v. Union of India and Ors. , has held that from the decided cases in India as well as in the United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra vires or unconstitutional. In such cases, action and the section may be vulnerable. If it is so, the Court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.
59. In view of the settled principles as mentioned above, we cannot hold a provision to be ultra vires or unconstitutional merely because there is a possibility of it being misused.
60. So far as the argument of Sri Devi Shanker Shukla, learned Standing Counsel for the Union of India, that the provisions of Clauses (4) and (6) of Article 243-T of the Constitution of India, as inserted by the Constitution Amendment Act, is beyond the pale of any challenge by taking recourse to Clauses (4) and (5) of Article 368, is concerned, we may mention here that the aforesaid two clauses, namely, Clauses (4) and (5) of Article 368, have been declared to be invalid by the Apex Court in the case of Minerva Mills Ltd. (supra). Thus, unconstitutionality can be tested on the touchstone of the principles laid down by the Apex Court in the case of Kesavananda Bharati (supra). Reliance placed on Clause (5) of Article 368 of the Constitution of India by Sri Shukla is also misplaced. Clause (4) of Article 13 of the Constitution of India specifically mentions that it shall not apply to any amendment of the Constitution made under Article 368. However, if an amendment alters the basic structure of the Constitution, which may also incidentally be one of the rights guaranteed under Part III of the Constitution of India, like equality before law under Article 14, a challenge to such a constitutional amendment can be made.
61. The power of the Parliament under Article 368 to amend the Constitution came up for consideration before the Apex Court in the famous case of Kesavananda Bharati (supra). The Apex Court has held that Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution. (See the view of the majority in point No. 2 at page 1007 of SCC).
Power to amend the Constitution :
62. In the case of Sajjan Singh v. State of Rajasthan the Apex Court has held that when Article 368 confers on Parliament the right to amend the constitution, the power in question can be exercised over all the provisions of the Constitution. How the power should be exercised has to be determined by reference to the Constitution as to whether the proposed amendment falls under the substantive part of Article 368 or attracts the provisions of the proviso.
63. In the case of A.V.S. Narasimha Rao and Ors. v. The State of Andhra Pradesh and Anr. , the Apex Court has held that the claim for supremacy of Parliament is misconceived. The Parliament in this matter is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must act within its appointed functions and not transgress them. What the Constitution says is a matter for construction of the language of the Constitution.
64. In the case of Kesavananda Bharati (supra), Hon'ble Sikri who wrote a separate judgment, has held that -
292. It seems to me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word "amendment" in the widest sense.
293. It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence, It seems also be have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom, of the individual would always subsists in the welfare state.
294. In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression "amendment of this Constitution" has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents.
302. The learned Attorney General said that every provisions of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features;
(1) Supremacy of the Constitution;
(2) Republican and Democratic forms of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
65. In the case of Smt. Indira Nehru Gandhi (supra) the Apex Court has held that implied limitation of a basic structure operating from even outside the language of Article 368 as it stood before the Twenty Fourth Amendment restrict its scope and within limitation must, however, be related to the provision of the Constitution. The Court has held that they are bound by the majority opinion in Kesavunanda Bharati (supra).
66. In the case of Waman Rao (supra) the Apex Court has held in paragraph 16 of the report as follows :
16. The judgment of this Court in Kesavanand Bharati provoked in its wake a multi-storied controversy, which is quite understandable. The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution. The seven learned Judges chose their words and phrases to express their conclusion as effectively and eloquently as language can do. But, as this distance of time any controversy over what was meant by what they said is plainly sterile. At 'this distance of time', because though not more than eight years have gone by since the decision in Kesavananda Bharati was rendered those few years are packed with constitutional events of great magnitude. Applying the ratio of the majority judgments in that epoch-making decision, this Court has since struck down constitutional amendments which would otherwise have passed muster. For example, in Smt. Indira Gandhi the Revenue Raj Narain, , Article 329A(4) was held by the Court to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the Speaker, it destroyed the basic structure of the Constitution. Ray C.J. based his decision on the ground that the 39th Amendment by which Article 329A was introduced violated the Rule of Law (p.418); Khanna J. based his decision on the ground that democracy was a basic feature of the Constitution, that democracy contemplates that elections should be free and fair and that the clause in question struck at the basis of free and fair elections (pp. 467 and 471); Mathew J. struck down the clause on the ground that it was in the nature of legislation ad hominem (p.513) and that it damaged the democratic structure of the Constitution (p.515); while one of us, Chandrachud, J. held that the clause was bad because it violated the Rule of Law and was an outright negation of the principle of equality which is, a basic feature of the Constitution (pp. 663-665). More recently, in Minerva Mills , Clauses (4) and (5) of Article 368 itself were held unconstitutional by a unanimous Court, on the ground that they destroyed certain basic features of the Constitution like judicial review and a limited amending power, and thereby damaged its basic structure. The majority also struck down the amendment introduced to Article 31C by Section 4 of the 42nd Amendment Act, 1976.
67. Thus, from the aforesaid decisions it is well established and admits of no doubt that even an Act amending the Constitution passed by the Parliament can be challenged on the ground that it violates the basic feature or the basic structure of the Constitution. What is the basic feature or the basis structure of the Constitution has not been defined.
Basic features - what are - some examples :
68. The Apex Court in the case of Smt. Indira Nehru Gandhi (supra) while referring to its earlier decision in the case of Kesavananda Bharati (supra), has held that all the seven Judges who constainted the majority, were also agreed that the democratic set up was part of the basic structure of the Constitution and democracy postulates that there should be periodical election so that the people should be able to re-elect the old representatives or, if they so chose, to change the representatives and elect in their place other representatives. According to the Apex Court, the democracy further contemplates that the election should be free and fair so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated and that they are effective instruments of ascertaining popular will both in reality and form and are nor mere rituals calculated to generate illusion of deference to mass opinion.
69. The Apex Court in the case of S.R. Bommai (supra) has held that the principle of federalism and democracy are embedded in our Constitution. It has also held that the States have an independent constitutional existence and they have as important role to play in political, social, educational and cultural life of the people as the Union, They are neither satellites nor agents of the Centre.
70. In the case of Indira Sawhney (II case) (supra) the Apex Court has held that the Parliament and the Legislature in this country cannot transgress the basic features of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. While holding so, the Apex Court has referred to the preamble of the Constitution which emphasis the principle of equality as basic to our Constitution and also culled out the views of the learned Judges who decided the case of Kesavananda Bharati (supra) as under:
64. The Preamble to the Constitution of India emphasises the principle of equality as basic to our Constitution. In Kesavananda Bharati v. State of Kerala it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, C.J. laid stress on the basic feature enumerated in the Preamble to the Constitution and said that there were other basic features too which could be gathered from the constitutional scheme (para 506-A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. Also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535-A of SCC). Hegde and Shelat, JJ. also referred to the Preamble (paras 648, 652). Ray, J.(as he then' was) also did so (para 886). Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature (para 1621). Dwivedi, J.(paras 1882, 1883) and Chandrachud, J.(as he then was)(see para 2086) accepted this position.
71. In the case of Shri Kihota Hollohon v. Mr. Zachilhu and Ors. , the Constitution Bench of the Apex Court has held that -
Democracy is a basic feature of the Constitution. Whether any particular brand or system of Government by itself has this attribute of a basic feature, as long as the essential characteristics that entitle a system of Government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under Sub-article (2) of Article 105 of the Constitution are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 105(2) as urged by Shri Sharma.
Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and pursuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.
72. The Apex Court in the case of Sambhamurthy v. State of A.P. AIR 1987 SC 663, has held that Clause (5) of Article 371-D of the Constitution which made the final order of the Administrative Tribunal, set up under Clause (3), subject to confirmation or annulment by the Government unconstitutional as violative of the rule of law which is clearly a basic and essential feature of the Constitution.
73. In the case of Kumar Padma Prasad v. Union of India , the Apex Court has held that independence of the judiciary to be part of the basic structure of the Constitution.
74. In the case of Raghunandan Ganpatrao v. Union of India , the Apex Court has upheld the validity of the Twenty Sixth Amendment Act, 1971 which derecognied former ruler of erstwhile Indian States and deprived them of their privy purse and Ors. privileges, holding that though the relevant provisions were an integral part of the Constitution, they did not constitute the basic structure of the Constitution.
75. In the case of Valsamma Paul v. Cochin University , the Apex Court has held that secularism is a basic feature of the Constitution.
76. In the case of Chandra Kumar v. Union of India , the Apex Court has held that the power of judicial review is a basic and essential feature of the Constitution,
77. In the case of High Court of Judicature at Bombay v. Shirish Kumar Rangarao Patil and Anr. , the Apex Court has held that the rule of law with independence of the judiciary as its essential attribute and judicial review are basic features of the Constitution.
78. In the case of State v. Mohanlal , the Apex Court has held that the power of the High Courts to review decisions of Administrative Tribunals and/or special Courts is now expressly preserved as a basic feature of the Constitution.
Right to contest election - whether a fundamental right:
79. It is well settled that the right to contest an election whether it is for the membership or for the post of the President is not a fundamental right. It is a statutory right. The Apex Court in the case of Jyoti Basu v. Debi Chosal , has observed that a right to elect fundamental though it is to democracy, is anomalously enough neither a fundamental right nor a common law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected, and no right to dispute an election. Statutory creations they are and, therefore, subject to statutory limitation.
80. Right to elect and right to be elected is a statutory right has also been held by the Apex Court in the case of Ramesh Mehta v. Sanwal Chand Singhvi and Ors. .
81. In the case of Peoples Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. , the Apex Court has held as under:
59. There cannot be any dispute that the right to vote or stand as a candidate for election and decision with regard to violation of election law is not a civil right but is a creature of statute or special law and would be subject to the limitations envisaged therein. It is for the legislature to examine and provide provisions relating to validity of election and the jurisdiction of the Court would be limited in accordance with such law which creates such election Tribunal.
82. In the case of K. Prabhakaran v. P. Jayarajan , the Apex Court has held that contesting an election is a statutory right and qualifications and disqualifications for holding the office can be statutorily prescribed.
83. From the aforesaid decisions it is apparent that even though the parliamentary democracy has been held by the Apex Court to be a basic feature of our Constitution yet the right to contest an election is not a fundamental right.
Special provisions for Scheduled Castes/Scheduled Tribes - its Necessarity:
84. Pandit Jawahar Lal Nehru in his-famous speech, known as 'Tryst with Destiny" made on the eve of India's independence towards the midnight on 14.8.1947 in the Indian Constituent Assembly, has said that the service of India means the service of the millions who suffer. It means the ending of poverty, ignorance, disease and inequality of opportunity.
85. In the book titled 'The Framing of India's Constitution, a Study" by B. Shiva Rao, 1968 Edition, at page 771, it is mentioned that the Constituent Assembly had recognised that the Scheduled Castes were a backward section of the Hindu community who were handicapped by the practice of untouchability. This evil practice of untouchability was not recognized by any other religion and the question of any Scheduled Caste belonging to a religion other than Hinduism did not arise but the Sikhs had made a demand that some of their backward sections, namely, the Mazhabis, Ramdasias, Kabirpanthis and Sikligars, should be included in the list of the Scheduled Castes which was accepted by the Advisory Committee. It further mentions that some of the members were of the view that unfortunately in this country the Hindu religion is suffering from the evil effects of certain customs and prejudices that have crept into society, so also the reformed community of Hindus, called the Sikhs, have also in course of time suffered from degeneration to a certain extent. The Constituent Assembly thereafter provided reservation of seats for the Members of the Scheduled Caste and the Scheduled Tribe in the Assembly as also in the Parliament and initially prescribed a period of 10 years from the date of commencement of the Constitution whereafter it was to cease. It also provided special treatment in the matter of recruitment to public services for the members of the Scheduled Caste and the Scheduled Tribe.
86. From the debates it appears that in order to remove inequality amongst the members of the backward section of the society, special provisions were made in the Constitution itself at the time of its enactment. By the Constitution Amendment Act, the intention of the Constitutional framers have been specifically incorporated providing reservation for the Scheduled Caste and the Scheduled Tribe and also empowering the State Legislature to make reservation for backwards not only in respect of seats of the municipality but also for the Chairpersons, Mere providing reservation/special treatment to specified classes of people in the local sell-government whether it is for the membership or Chairmanship, in order to remove inequality and to bring them in the main stream of the nation's fabric by having a sense of pride without which they could not even dream of it, cannot be said to violate the basic structure of our Constitution as the reservation has be in existence since the commencement of the Constitution in respect of the members of the State Legislature and the Parliament.
87. In the case of Krishna Kumar Misra (supra), a Full Bench of the Patna High Court was examining the validity of the provisions of Article 240-D of the Constitution of India, which provided for reservation of seats in the Panchayats. It is analogous to the provisions of Article 243-T. The Full Bench has held in paragraph 32 of the report that neither the provisions of Article 243-D nor the Bihar Panchayat Raj Act, 1993 debars any citizen to take part in an election so far as their right to vote is concerned and the right to seek election does not accrue under the Constitution. It has held that the Legislatures are competent to lay down the principle of reservation in the matter of Panchayat election and the same is intra vires. It has also upheld the validity of Clauses (4) and (6) of Article 243-D of the Constitution. However, it has held that as Clause (4) of Article 243-D speaks of the office of Chairpersons, it is clear that such reservation has been stipulated to such posts where the number is more than one.
88. In the case of Bidhya Charan Singha (supra), a learned Single Judge of the Calcutta High Court was considering a case where the question was whether a Scheduled Caste candidate who has been elected on a general or unreserved seat, can be a Pradhan of such Gram Panchayat reserved for a Scheduled Caste candidate or not. There were altogether three successful Scheduled Caste candidates. Out of three, one was from the reserved seat while another was from unreserved or general seat. In that context, it has been observed in paragraph 6 of the report as follows:
6. Coming back to the Chapter, i.e. Part IX inserted by way of 73rd Amendment I find that various Articles inserted therein for the purpose of formation of Panchayats etc. in the country. One Article is there, i.e. Article 243-D which is basically made for reservation of seats. Surprisingly in the Sub-article (4) thereunder question of reservation of the post of Chairpersons were inserted. It speaks that the office of the Chairpersons in the Panchayats at the 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 with certain proviso about the proportion of such representation therein. But where is the scope of such insertion in Article 243-D irrespective of issue of reservation of the post of Chairperson of the Gram Panchayats? Has this Article made for the same ? Is it the true import of the heading of the Article and Sub-articles (1), (2) and (3)? Is it not fixed for reservation of seats to which presently there is no controversy ? What is the necessity of clubbing reservation of seats with Article 243-D without clubbing with Article 243-C which deals with composition of Panchayats precisely the question of Chairpersons? Is it not alien, foreign or inharmonious with the import of Article 243-D? Is it not confusing so to say that Chairpersons perhaps meant the seats of the Gram Panchayat? Can it" be said that reservation for the posts of Chairpersons can be accepted without due deliberation in the Parliament or in the legislative houses?
89. The learned single Judge in paragraph 9 of the report has held that there was no occasion to deal with the reservation of Chairpersons or articulate in such manner in the following words:
9. Therefore, when Panchayat is a local self-Government, composition of such local self-Government is to be governed under Article 243-C. Article 243-D only speaks about reservation of seats. There cannot be any embargo about such reservation. But in the garb of reservation of seats under Article 243-D if there is any strong reference about reservation of Chairpersons then the same will be marching over the scope and ambit of Article 243-C which deals with composition of Panchayats. If it is allowed to be done without declaring unconstitutional, the predominant character of Article 243-C will be subdued. Only requirement of Article 243-D is reservation of seats. There was no occasion to deal with the reservation of the Chairpersons or articulate in such manner.
90. With great respect we are unable to, persuade ourselves to subscribe to the view expressed by the learned Single Judge of the Calcutta High Court. It is well settled that full effect to the various provisions of a statute what to say of the Constitution, has to be given and the provisions made in any clause of an Article of the Constitution of India cannot be said to be redundant or without any meaning. The framers of our Constitution and the law makers are presumed to know as to what they are legislating, the only requirement being it should be within the limits provided under the Constitution and should not exceed their jurisdiction. If by amending the Constitution the Parliament in Part IX of the Constitution by way of Article 243-D has provided for reservation for the members in the Panchayat and 'also for the Chairperson, the full effect has to be given and cannot be made redundant on account of Article 243-C.
91. It is well settled that while interpreting a particular section, the statute must be read as a whole and is equally applicable to different parts of the same section. In the case of The Balasinor Nagrik Cooperative Bank Ltd. v. Babubhai Shankerlal Pandya and Ors. , the Apex Court has held as follows:
It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it for the principle that the statute must be read as a whole is equally applicable to different parts of the same section.
92. In the case of Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors. etc. , the Apex Court has held that when the question arises as to the meaning of a certain provision in a statute it is not only legitimate but proper to read that provision in its context. The context means; the statute as a whole, the previous state of law, other statutes in pari material, the general scope of the statute and the mischief that it was intended to remedy. It has further held that the preamble of an Act, no doubt can also be read along with other provisions of the Act to find out the meaning of the words in enacting provisions to decide whether they are clear or ambiguous but the preamble in itself not being an enacting provision is not of the same weight as an aid to construction of a Section of the act as are other relevant enacting words to be found elsewhere in the Act. The utility of the preamble diminishes on a conclusion as to clarity of enacting provisions. It is therefore said that the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it.
93. In the case of Prakasham District Sarpanchan Association (supra), the Andhra Pradesh High Court was considering the question as to whether Clause (6) of Article 243-D of the Constitution of India was opposed to the basic structure theory and violative of Articles 14 and 16 of the Constitution of India. The Andhra Pradesh High Court has held as follows:
(36) COMING to the second issue as to whether Article 243-D(6) of the Constitution of India is opposed to the basic structure theory and violative of Articles 14 and 15 of the constitution of India, Sri S. Ramachandra Rao, learned Senior counsel appearing on behalf of the petitioners, principally contented that providing a definite percentage of reservations to Scs/sts in the Gram panchayats under Article 243-D(1) and (2) of the Constitution and not providing such definite percentage of reservation to backward Classes but giving discretion to the States under Article 243-D(6) for providing reservations to BCs is unconstitutional and as such, Article 243-D(6) is opposed to the basic structure theory. We do not think, the attack made in this behalf could be sustainable. It must be remembered that the historical background and the social fabric from which the members of the Scheduled Castes and Scheduled Tribes come from. Constitutional makers have visualised the paramount need for safeguarding the interests of the member of SCs/sts and desired to bring them on par with the other members of the society. In their endeavour to uplift these sections, the Constitutional makers thought it fit to provide reservations to SCs/sts at a particular percentage not only in public employment but also in elected offices.
(37) OPTING for a Democratic System of governance, the First Prime Minister of India, late Pandit Jawaharlal Nehru had remarked, "merely accepting a Government to be democratic may not subserve the expectations of the society. Democracy would be meaningful when tears from every weeping eye is wiped out. It may not be possible to wipe out all tears at once, but that has to be done within a definite period. "An effort, therefore, was made under Article 330 of the Constitution which provides for reservations to Scheduled castes and Scheduled Tribes in the House of People. Unlike a specific provision in favour of SCs/sts under Article 330 of the constitution, there is no specific provision under the Constitution providing reservations in favour of Backward Classes in political Offices. However, under Article 15(4) of the Constitution, the States are given powers to make special provisions for the advancement of any socially and educationally Backward Class citizens or for SCs/sts.
(38) THROUGH the "3rd Constitutional amendment under Article 243-D(6) of the constitution, discretion is given to the State governments for providing reservations to backward Classes in Gram Panchayats whereas Article 243-D(1) and (2) mandates a specific percentage of reservations to be provided for SCs/sts as far as possible, in proportion to their population in that area. The State of Andhra Pradesh, in tune with the provisions under Article 243-D(6) of the Constitutiony in the A.P. Panchayat Raj Act, 1994 under Section 9(1-A), 34 per cent of reservations in favour of Backward Classes is provided in local bodies. However, in the absence of any constitutional requirement to provide specific percentage of seats for bcs also in political offices, it cannot be said, there is a discrimination between BCs on one hand and SCs/Sts on the other, nor Article 243-D(6) violates Articles 14 and 15 of the Constitution. Since there is no violation of equality clause guaranteed under Articles 14 and 15 of the Constitution of India, the provision under Article 243-D(6) of the Constitution cannot also be said to be opposed to the basic structure theory and the members of the Backward Classes cannot be equated to SCs/sts and, therefore, the plea in this regard advanced on behalf of the petitioners is rejected.
94. We are in respectful agreement with the view expressed by the learned Judges of the Andhra Pradesh High Court in the aforesaid mentioned case.
95. The laws passed truly and bona fide for giving effect to the directive principles will fortify the basic structure what to say of damaging the basic structure. The provisions of Clauses (4) and (6) of Article 243-T of the Constitution of India and, in tact, the whole of Article 243-T is a step to further the directive principles and to achieve the objective contained in Article 38 of the Constitution of India and, therefore, also the said provision cannot be said to be unconstitutional.
Directive Principles vis-a-vis Fundamental Rights :
96. It may be mentioned here that a Constitution Bench of the Apex Court in the case of State of Bombay v. F.N. Balsara AIR 1951 SC 318, had ruled that in judging the reasonableness of the restrictions imposed on the fundamental rights, one has to bear in mind the directive principles of State policy set forth in Part IV of the Constitution, while examining the challenge to the constitutional validity of law by reference to Article 19(1)(g) of the Constitution.
97. In the case of Waman Rao (supra) the Apex Court has held that mere abridgement, that is to say curtailment, and not necessarily abrogation, that is to say deprivation, is enough to produce the consequences provided for by Article 13(2). It has further held that it is impossible to conceive that any law passed for the purpose of giving effect to Sub-clauses (b) and (c) of Article 39 which are vital to the well being of the country and welfare of its people, at all violated Article 14 or 19 of the Constitution and in fact far from damaging the basic structure of the Constitution, laws passed truly and bona fidely for giving effect to the directive principles will fortify that structure.
98. Again the Apex Court in M.R.F. Ltd. v. Inspector, Kerala Govt. , on a conspectus of its various prior decisions summed up the principles as "clearly discernible", out of which three that are relevant for our purpose, are extracted and reproduced hereunder (SCC p.233, para 13):
13. On a conspectus of various decisions of this Court, the following principles are clearly discernible:
...
(1) While considering the reasonableness of the restrictions, the court has to keep in mind the directive principles of State, policy.
...
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See K.K. Kochuni v. State of Madras and Kerala ; O.K. Ghos v. E.X. Joseph .)
99. In the case of Indian Handicrafts Emporium v. Union of India , the Apex Court while dealing with the case of a total prohibition reiterated that "regulation" includes "prohibition" and in order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens as against the greater public or social interest sought to be ensured. Implementation of the directive principles contained in Part IV is within the expression of "restriction in the interests of the general public."
100. In the case of Indira Sawhney (I case) (supra), the Apex Court has held as follows:
4. The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the Articles under the sub-heading "Right to equality" - (Articles 14 to 18). In short, the goal is "equality of status and of opportunity". Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several Articles in Part IV (Directive Principles of State Policy). "Justice, Social, Economic and Political" is the sum total of the aspirations incorporated in part IV.
101. A seven Judges Constitution Bench of the Apex Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors. , had considered the Kesavananda Bharati case (supra) regarding determination of the position of directive principles vis-a-vis fundamental rights and has observed as follows:
Post Kesavananda Bharati , so far as the determination of the position of directive principles, vis-a-vis fundamental rights are concerned, it has been an era of positivism and creativity. Article 37 of the Constitution while declaring the directive principles to be unenforceable by any court goes on to say, "that they are nevertheless fundamental in the governance of the country". The several clauses of Article 37 themselves need to be harmoniously construed assigning equal weightage to all of them. The end part of Article 37 - "it shall be the duty of the State to apply these principles in making laws" is not a pariah but a constitutional mandate. The series of decisions which we have referred to hereinabove and the series of decisions which formulate the three stages of development of the relationship between directive principles and fundamental rights undoubtedly hold that, while interpreting the interplay of rights and restrictions, Part III (Fundamental rights) and Part IV (Directive principles) have to be read together. The restriction which can be placed on the rights listed in Article 19(1) are not subject only to Article 19(2) to 19(6); the provisions contained in the chapter, on directive principles of State policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the fundamental rights.
102. The Apex Court in the case of Mirzapur Moti Kureshi Kassab Jamat (supra) has held that for testing the constitutional validity of any statutory provision or an executive act or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and fundamental duties as enshrined in Article 51-A of the Constitution play a significant role.
103. The provisions of Clauses (4) and (6) of Article 243-T of the Constitution of India have been inserted with a view to achieve one of the principles enshrined in Article 38 of the Constitution of India which forms part of Part IV, viz. Directive Principles of State Policy, an endeavour to eliminate inequalities in status, facilities and opportunities. Any law which gives effect to the Directive Principle of the State Policy, as provided in Clause (2) of Article 38 of the Constitution of India, cannot be said to damage the basic structure of the Constitution of India.
104. The laws passed truly and bona fide for giving effect to the directive principles will fortify the basic structure what to say of damaging the basic structure. The provisions of Clauses (4) and (6) of Article 243-T of the Constitution of India and, in fact, the whole of Article 243-T is a step to further the directive principles and to achieve the objective contained in Article 38 of the Constitution of India and, therefore, also the said provision cannot be said to be unconstitutional.
105. Now coming to the question as to whether the reservation for the office of the Chairpersons in the municipalities can be made in favour of the Scheduled Caste, the Scheduled Tribe, the women or the backward class of citizen at all, as it is a single-post, we find that under Clauses (3) and (4) of Article 15 of the Constitution of India, the State has been empowered to make special provisions for the women and the children and for socially and educationally backward classes of citizen or for the Scheduled Caste and the Scheduled Tribe. The framers of the Constitution in the matters of public employment has also empowered the State, by Clause (4) of Article 16, to make any law for reservation in appointment or post in favour of the backward class of citizens not adequately represented in the service under the State.
106. In the case of C.K. Achutan (supra) the Constitution Bench of the Apex Court has held that Article 16(1) of the Constitution of India both in its terms and in the collocation of the words, indicates that it is confined to employment by the State and has reference to employment in service rather than as contractors.
107. In the case of Dr. Chakradhar Paswan (supra) the Apex Court has held that 50 point rosters prescribed by the State of Bihar by its circular dated 8.11.1975 cannot be applied to isolated or separate post. The Apex Court has held that such reservation was impermissible under Article 16(4) of the Constitution of India and is clearly violative of guarantee enshrined in Article 16(1) of the Constitution of India providing equal opportunity to all citizens relating to public employment It has further held that Article 16(4) is an exception to Article 16(1) and Article 16(2) and, therefore, the power to make a special provision for reservation of post and appointment in favour of the backward classes must not be so excessive which would, in effect, efface the guarantee of equal opportunity in the matter of public employment or at best make it illusory. It has further held that the reservations are legitimate to the extent that they provide the backward class with an opportunity equal to all the members of more advanced classes. Referring to Devdasan's case the Apex Court has held that the reservation for backward community should not be so excessive as to create a monopoly or unduly disturb the legitimate claim of other communities.
108. In the case of Indira Sawhney (I case) (supra) the Apex Court while considering the question of the extent of reservation permissible under Clause (4) of Article 16 of the Constitution of India, has held as follows:
94-A. We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These Articles speak of reservation of seats in Lok Sabha and the State legislature in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits - and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandum in favour of backward classes is well within the reasonable limits. Together with reservation in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayana Rao v. State striking down the enhancement of reservation from 25% to 44% O.B. cannot be sustained and is hereby set aside. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.
It needs no emphasis to say that the principle aim of Articles 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provisions under Article 16(4) - conceived in the interest of certain sections of society should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out That Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (see his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.
From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain extra-ordinary 'situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
In this Connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.
109. In the case of Sanjoy Bhattacharjee (supra) the Apex Court has held that for subsequent vacancies, everyone in the open market is entitled to apply for consideration of his/her claim on merit in accordance with law and it would be consistent with the provisions of Articles 14 and 16(1) of the Constitution. Therefore, the direction sought for not to fill up the vacancies having arisen subsequently until the candidates in the waiting list are exhausted, cannot be granted. The Tribunal rightly refused to grant any such direction.
110. In the case of P.B. Vijaykumar (supra) the Apex Court has held that making special provision for women in respect of employment or post under the State is an integral part of Article 15(3) and is not whittled down in any manner by Article 16 of the Constitution of India. In paragraph 6 of the report it has held as follows:
6. This argument ignores Article 15(3). The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go together. In addition to Article 15(1) Article 16(1), however, places certain additional prohibitions in respect of a specific area of State activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an. office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by Clauses 3, 4 and 5 of Article 16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 the former being a more general provision and" the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in 'his connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of Slate activity including employment under the State.
111. In the case of Post Graduate Institute of Medical Education and Research, Chandigarh (supra) the Constitution Bench of the Apex Court has held that Articles 14, 15 and 16 including Articles 16(4) and 16(4-A) must be applied in such a manner so that balance is struck in the matter of appointment by creating reasonable opportunity for the reserved classes and also for other members of the community who do not belong to reserved classes. It has held in paragraphs 34 and 35 of the report as follows:
34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.
35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only man that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.
112. In the case of Anand Narain Singh (supra), this Court has followed the principles laid down by the Apex Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh (supra) and has held that post of a Principal in an intermediate college being a single post, cannot be reserved.
113. The principle of no reservation of a single post as laid down by the Apex Court in the decisions referred to above are all relating to public employment, i.e., under the service jurisprudence. No doubt, in the case of Post Graduate Institute of Medical Education and Research, Chandigarh (supra) the Apex Court has held that Articles 14, 15 and 16 must be applied in such a manner so that balance is struck in the matter of appointment by creating reasonable opportunity for the reserved classes and also for other members of the community who do not belong to reserved classes. It would apply only in a case of appointment and not in a case where the office is to be held by election.
114. We may mention here that the Parliament was conscious of the fact that every municipality will have only one President and that is why in Clause (4) of Article 243-T of the Constitution of India it has mentioned the words "Chairpersons" and "municipalities" which are in plural and, therefore, for providing reservation on the office of the Chairpersons of the municipalities in the State, all the municipalities are to be taken together as a unit and reservations have to be made according to law made by the State Legislature. The cases relied upon by the learned Counsel for the petitioners, the leading case being Post Graduate Institute of Medical Education and Research, Chandigarh (supra), relate to the reservations arising under the service jurisprudence. They have no application to an elected post where the Parliament while inserting Article 243-T has taken to club all the posts.
115. The propositions which emerge from the aforesaid decisions of the Apex Court, are that under Article 368 the Parliament has absolute right to amend the Constitution. However, by amendment, the basic features/structures of the Constitution should not be altered. Democracy is a part of the basic structure/feature of our Constitution. The form of the Government is not necessary to be gone into so long as the essential characteristic that enables a system of Government to be called democratic are otherwise satisfied. The right to contest an election either for the membership of a body or any post is not a fundamental right but a right granted under a particular statute. Thus, by insertion of Clauses (4) and (6) in Article 243-T in Part IX-A of the Constitution of India by the Constitution Amendment Act which provides for reservation of the office of the President in municipality for specific categories of person, namely, Scheduled Caste, Scheduled Tribe, Backward Class and women, do not destroy the basic structure of the Constitution of India what to say of any fundamental right of the petitioner. We, therefore, do not find any force in the submission raised for challenging the validity of the Constitutional amendment.
116. In the case of Krishna Dutt Mishra (supra) the Lucknow Bench of this Court has upheld the validity of Section 11-A of the United Provinces Panchayat Raj Act, 1947 by which specific provisions were made for reservation of the office of Pradhan for the Scheduled Caste, the Scheduled Tribe and the backward classes. This Court has held as follows:
To conclude thus, it is held that no provision of U.P. Panchayat Raj Act or U.P. Kshettra Panchayat and Zila Panchayat Act is violative of Article 243-D of the Constitution of India. It is also held that the State Legislature is competent and has the power to amend the Rules under the U.P. Panchayat Raj Act and U.P. Kshettra Panchayat and Zila Panchatyat Raj Act and the State Legislature is also competent to make Rules or to amend them as and when it deems proper for rotation of seats, the manner and mode thereto and also at appropriate time and it cannot be said that the aforesaid act of the State Legislature is ultra vires of any provisions of Constitution of India. It is further held that the State is fully empowered to carry rapid survey and to act upon this result so as to find out the population of Backward Classes and for reservation of seats for such classes. However, the said reservation shall not exceed 27% in any case and at all costs. It is further made clear that the reservation for women as directed by Article 243-D of the Constitution of India will be 1/3 of the total seats of each category. In case of Backward classes, out of 27% it "may" be reserved 1/3 for women of Backward category. For Scheduled Caste category and Scheduled Tribe category, the State "shall" reserve 1/3 of such seats to Scheduled Caste and Scheduled Tribe categories, as the case may be. However, : this reservation shall not in any case exceed 50% as directed by the Hon'ble Supreme Court in Indra Sawhney's case reported in 1992 Supp (3) SCC page 217, which settles the law finally for the reservation to such classes shall not exceed 50% in any case. Out of the remaining 50% seats shall go to general class and general category, who may, if they so like, reserve any number of seats to their women.
117. Special provisions were made for reservations to the post of the Pradhan of a Gram Panchayat for the Scheduled Castes, Scheduled Tribes and Backward Classes in Section 11-A of the U.P. Panchayat Raj Act, 1947 by the State Legislature whereas, in the present case, the State Legislature has not made any specific provision under Sub-section (5) of Section 9-A of the Act for reserving the post of the President/Vice-President for the Scheduled Castes, Scheduled Tribes, women, Backward Classes and has left it to the wisdom of the Rule making authority.
Validity of Sub-section (5) of Section 9-A of the Act:
118. This leaves us to the challenge to the validity of the provision of Sub-section (5) of Section 9-A of the Act. For ready reference Section 9-A of the Act is reproduced below:
9-A. Reservation of seats. --(1) In every municipality seats shall be reserved for the Scheduled Castes, the Scheduled Tribes and the backward classes 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 municipality as the population of the Scheduled Castes in the municipal area or of the Scheduled Tribes the municipal area or of the backward classes in the municipal area bears to the total population of such area and such seats may be allotted by rotation to different wards in a municipality in such order as may be prescribed by rules:
Provided that the reservation for the backward classes shall not exceed twenty seven per cent of the total number of seats in the municipality:
Provided further that if the figures of population of the backward classes are not available their population may be determined by carrying out a survey in the manner prescribed by rules.
(2) * * * (3) Not less than one third of the total number of seats reserved under Sub-section (1) shall be reserved for the women belonging to the Scheduled Castes, the Scheduled Tribes or the backward classes, as the case may be.
(4) Not less than one-third of the total number of seats in a municipality including the number of seats reserved under Sub-section (3) shall be reserved for women and such seats may be allotted by rotation to different wards in a municipality in such order as may be prescribed by rules.
(5) The offices of the Presidents and the vice-Presidents of Municipalities in the State shall be reserved for the Scheduled Castes, the Scheduled Tribes, the backward classes and the women in such manner as may be prescribed by rules:
Provided that if the office of the President of a Municipality is reserved, the office of Vice-President in that Municipality shall not be reserved.
(6) The reservation of seats and offices of the Presidents for the Scheduled Castes and the Scheduled Tribes under this section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation. --It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, Scheduled Tribes, the backward classes and the women from contesting election to unreserved seats and offices."
119. From the perusal of the aforesaid provisions, we find that whereas Sub-sections (1), (3), (4) and (6) are verbatim reproduction of Clauses (1), (2), (3) and (5) of Article 243-T of the Constitution of India except for the addition of the word "backward classes" in various subsections of Section 9-A of the Act, Sub-section (5) of Section 9-A of the Act has been enacted by the State Legislature pursuant to the provisions contained in Clauses (4) and (6) of the Article 243-T of the Constitution of India. By Sub-section (5) of Section 9-A of the Act, the State Legislature has provided the reservation for the offices of the Presidents and Vice Presidents of Municipalities in the State for the Scheduled Castes, the Scheduled Tribes, the backward classes and the women in such manner as may be prescribed by the Rules. Under Clause (a) of Sub-section (2) of Section 296 of the Act, the State Government is empowered to make Rules providing for any matter for which power to make provision is conferred expressly or by implication under the Act. The State Government has framed Rules known as Uttar Pradesh Municipalities(Reservation and Allotment of Seats and Offices) Rules, 1994. The aforesaid Rules have undergone amendments from time to time. Rule 6 of the said Rules provides for reservation for the post of President in favour of the Scheduled Castes, Scheduled Tribes, women and the backward classes whereas Rule 6-A provides for reservation for aforesaid categories for the office of Vice President. Learned counsels for the petitioner did no; dispute that the provisions of Section 9-A of the Act has been enacted to give effect to the provisions of Article 243-T, which is contained in Part IX-A of the Constitution of India. However, they contend that while amending the Constitution by the Constitution Amendment Act the intention of the Parliament was clear by Clauses (4) and (6) of Article 243-T that the reservation for the offices of the Chairpersons in the Municipalities for the Scheduled Castes, Scheduled Tribes, women and the backward class citizens is to be made by the State Legislature. The contention is that the State Legislature by enacting Sub-section (5) of Section 9-A of the Act has instead of providing maximum number/percentage of reservation in favour of the specified categories on the post of Chairpersons in the municipalities in the State have left it to the rule making body of the State Government, thus abdicating itself from the essential legislative functions. The State has sought to justify the provisions of Sub-section (5) of Section 9-A of the Act by invoking the executive power of the State under Article 162 of the Constitution of India as also behind the definition of the word "State" as given in Article 12 and of the word "law" in Sub-clause (a) of Clause (3) of Article 13 of the Constitution of India.
120. Article 12 of the Constitution of India gives inclusive definition Of the word "State", which includes, inter alia, the government arid the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Sub-clause (a) of Clause (3) of Article 13 of the Constitution of India gives an inclusive definition of the word "law" to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The Rules, thus, framed by the State Government would be treated as a law framed by the State. It may be mentioned here that under Article 162 of the Constitution of India, the executive power of the State extends to the matters with respect to which the Legislature of the State has power to make law. This power is, however, subject to the provisions of the Constitution of India.
121. In the case Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab , the Apex Court has held that the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. It has further held that ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its regaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction, of foreign policy, in fact the carrying on or supervision of the general administration of the State.
122. In the case of Shri Ram Krishna Dalmiar (supra), the Apex Court has held that "State" is defined in Article 12 as including the Government and 'law' is defined in Article 13 as including any notification or order.
123. In the case of State of Madhya Pradesh v. Ram Charan (supra), the Full Bench of the Madhya Pradesh High Court has held that under our legal order and jurisprudence based on the Constitution, "law" is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notifications made and issued under statutory powers and which are legislative in nature amount to law. A statutory order or notification will be legislative in nature if in substance it adds to, supplements, modifies or amends a statute or exempts certain matters from its operation.
124. In these days in order to meet the changing circumstances, which cannot be always foreseen on account of increasing complexities of modem administration and the need for flexibility capable of rapid readjustment and to implement the socio-economic policies of a welfare State, it has become necessary for the Parliament and the State Legislatures to leave to the authorities i.e. Executive to provide for the niceties and Ors. requirements, according to the ground realities. The Apex Court in the case of Tata Iron and Steel Co. Ltd. v. Workmen of Tata Iron & Steel Co. Ltd. and Ors. has held as follows:
11. Now, the increasing complexity of modern administration and the need for flexibility capable of rapid readjustment to meet changing circumstances which cannot always be foreseen, in implementing our socio-economic policy pursuant to the establishment of a welfare State as contemplated by our Constitution, have rendered it convenient and practical, nay, necessary, for the legislatures to have frequent resort to the practice of delegating subsidiary or ancillary powers to delegates of their choice. The parliamentary procedure and discussion in getting through a legislative measure in the legislatures is usually time-consuming. Again such measures cannot provide for all possible contingencies because one cannot visualize various permutations and combinations of human conduct and behaviour. This explains the necessity for delegated or conditional legislation. Due to the challenge of the complex socio-economic problems requiring speedy solution the power of delegation has by now as per necessity become a constituent element of legislative power as a whole. The legal position as regards the limitation of this power is, however, no longer in doubt. The delegation of legislative power is permissible only when the legislative policy and principle are adequately laid down and the delegate is only empowered to carry out the subsidiary policy within the guidelines laid down by the legislature. The legislature, it must be borne in mind, cannot abdicate its authority and cannot pass on to some other body the obligation and the responsibility imposed on it by the constitution. It can only utilize other bodies or authorities for the purpose of working out the details within the essential principles laid down by it....
125. Similar view has been expressed in the case of The Registrar of Co-operative Societies and Anr. v. K. Kunjabmu and Ors. , wherein the Apex Court has held as follows:
3. It is trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure to its citizens 'social economic and political justice', to preserve 'liberty of thought, expression, belief, faith and worship' and to ensure 'equality of status and of opportunity and the dignity of the individual' and the unity of the nation', that is what the preamble to our Constitution says and that is what is elaborated in the two vital chapters of the Constitution on Fundamental Rights and directive Principles of State Policy. The desire to attain these objectives has necessarily recited in intense legislative activity touching every aspect of the life of the citizen and the nation. Executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. It has to be and is as it should be. The Parliament and the State legislature are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational incricacies which are better left to better equipped full time expert executive bodies and specialist public servants. Parliament and the State Legislatures visualize and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d'etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable. The Indian Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the constitution itself. The power to legislate carries with it the power to delegate....
126. The Hon'ble Supreme Court in the famous case In re Article 143, Constitution of India and Delhi Laws Act (1912) etc., Special Reference No. 1 of 1951 AIR 1951 SC 332 had in great detail laid down the principles of delegation of powers by the Legislature.
127. The aforesaid decision was considered by the Apext Court subsequently in the case of Rajnarain Singh v. Chairman Patna Administration Committee, Patna and Anr. and has referred to the views expressed by Hon'ble Mahajan, J. that Parliament has no power to delegate its essential legislative functions to others, whether State legislatures or executive authorities, except of course, functions which really in their true nature are ministerial. The Apex Court also referred to the view expressed by Hon'ble Das, J. that Parliament did not abdicate or efface itself and retained control in the sense of retaining the right to recall or destroy or set right or modify anything its delegate did, it could confer on the delegate 'all' the rights of legislation which it itself possessed. Hon'ble Patanjali Sastri, J. took the same extreme view whereas Hon'ble Fazl Ali, J. did not go as far though he upheld all the Acts, which were impugned in that case. However, he said that "the legislature must normally discharge its primary legislative function itself and not through others but it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. Hon'ble Mukherjee, J. has held that the essential legislative functions cannot be delegated, which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule: of conduct.
128. Thus, in the case of Rajnarain Singh (supra) the Apex Court has held that an executive authority can be authorized to modify either existing or future laws but not in any essential feature. Exactly what constitute an essential feature cannot be enunciated in general terms but this much is clear that it cannot include a change of policy.
129. In the case of Harishanker Bagla and Anr. v. The State of Madhya Pradesh , the Apex Court has held that the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct.
130. In the case of Devi Das Gopal Krishnan, etc. v. State of Punjab and Ors. , the Apex Court has held that the Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the- policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of leglative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits. But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities. It is the duty of the Court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature.
(underlined by us)
131. In the case of The Municipal corporation of Delhi v. Birla Cotton, spinning and Weaving Mills, Delhi and Anr. , the Apex Court has held that the principle is well established that the legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down the Courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the court has to deal including its preamble. Further the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. What form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstance of each statute under consideration.. In some cases guidance in broad general terms may be enough. In other cases more detailed guidance may be necessary.
132. In the case of Hamdard Dawakhana (supra) the Apex Court has held that the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and, must therefore be subject of enquiry and determination outside the hall of legislature. But the discretion should not be so wide that it is impossible to discern its limits. There must instead be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should not be so indefinite as to amount to an abdication of the legislative function.
133. In the case of Ramesh Birch and Ors., etc. etc. v. Union of India and Ors. , the Apex Court has considered all the earlier decisions on the above subject and has held as follows:
13. The problem posed before us is, what Chinnappa Reddy, J. in Registrar of Co-operative Societies v. Kunrambu , described as, the "perennial, nagging problem of delegated legislation and the so-called Henry VIII clause". This is an issue on which there is an abundance of authority, of even larger Benches of this Court. The judgments in R. v. Burah (1878)5 Ind App 178 (PC), Jatindra Nath Gupta, 1949 FCR 595 : AIR 1949 FC 175, the Delhi Laws Act case, 1951 SCR 747 : AIR 1951 SC 332, Hari Shankar Bagla , Rajnarain Singh , Sardar Inder Singh , Banarsi Das , Edward Mills , Western India Theatres , Hamdard Dawakhana , Vasantlal Maghanbhai , Jyoti Prashad , Shama Rao , Mohammad Hussain Gulam Mohammad , Liberty Cinema , Devi Das , Birla Cotton , Sitaram Bishambar Dayal . Hiralal Ratanlal , Gwalior Rayon , Papiah , Kunhambu , and Brij Sundar Kapoor , can be referred to for a detailed discussion and application of the relevant principles in the context of various kinds of legislative provisions. It is unnecessary, for our present purposes, to undertake a detailed examination of the several opinions expressed in these cases. Suffice it to say that these decisions have been interpreted as holding that the power of parliament to entrust legislative powers to some other body or authority is not unbridled and absolute. It must lay down essential legislative policy and indicate the guidelines to be kept in view by that authority in exercising the delegated powers. In delegating such powers, Parliament cannot "abdicate" its legislative functions in favour of such authority.
(underlined by us)
19. A perusal of the above judgments shows that the validity of the provisions in question were upheld on different lines of reasoning. Nevertheless all the learned Judges seem to have agreed - and, indeed, as pointed out in later decisions, it is inevitable in modern conditions--that, while Parliament should have ample and extensive powers of legislation, these should include a power to entrust some of those functions and powers to another body or authority. They also seem to have agreed that there should be a limitation placed on the extent of such entrustment. It is only on the question as to what this limitation should be that there was lack of consensus among the judges. All of them agreed that it could not be so extensive as to amount to "abdication" or "effacement". Some thought that there is no abdication or effacement unless it is total i.e. unless Parliament surrenders its powers in favour of a "parallel" legislature or loses control over the local authority to such an extent as to be unable to revoke the powers given to, or to exercise effective supervision over, the body entrusted therewith. But others were of opinion that such "abdication" or "effacement" could not even be partial and it would be bad if full powers to do everything that the legislature can do are conferred on a subordinate authority, although the legislature may retain the power to control the action of such authority by recalling such power or repealing the Acts passed by the subordinate authority. A different way in which the second of the above views has been enunciated-- and it is this view which has dominated since-- is by saving that the legislatures cannot wash their hands off their essential legislative function. Essential legislative function consists in laying down the legislative policy with sufficient clearness and in enunciating the standards which are to be enacted into a rule of law. This cannot be delegated. What can be delegated is only the task of subordinate legislation which is by its very nature ancillary to the statute which delegates the power to make it and which must be within the policy and framework of the guidance provided by the legislature.
(underlined by us).
134. In the aforesaid case the Apex Court has also held that all of them however appear to agree on one principle, viz. that where there is abdication or effacement the legislature concerned in truth and in fact acts contrary to the Instrument which constituted it and the statute in question would be void and still born.
135. In the case of Agricultural Market Committee v. Shalimar chemical Works Ltd. , the Apex Court has held as follows:
24. The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the Constitution and Ors. relative Articles and when the legislatures enact laws to met the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts as part of the Administrative Law. The legislature has to lay down the legislative policy and principle to afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. (See: Vasantlal Maganbhai Sanjanwala v. State of Bombay ). This Court in another case, namely, Municipal Corporation of Delhi v. Birla Cotton, Spg. And Wvg. Mills as also an earlier decision in Delhi Laws Act, 1912, In re (AIR 1951 SC 332) has laid down the principle that the legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects Of the Act concerned.
25. In Avinder Singh v. State of Punjab , Krishna Iyer, J. laid down the following tests for valid delegation of legislative power. These are:
(1) The legislature cannot efface itself;
(2) it cannot delegate the plenary or the essential legislative function;
(3) even if there be delegation, parliamentary control over delegated legislation, should be a living continuity as a constitutional necessity.
It was further observed as under: (SCC p. 149, para 17;
While what constitutes an essential feature cannot be delineated in detail it certainly cannot include a change of policy. The legislature is the master of legislative policy an dif the delegate is free to switch policy it may be usurpation of legislative power itself.
26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles of the guidance of the delegates. These principles also apply to taxing statues. The effect of these principles is that the delegate which has been authorized to make subsidiary rules and regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the act and has to restrict itself to the mode of implementation of the policy and purpose of the Act.
136. In the case of Kunj Behari Lal Butail and Ors. v. State of H.P. and Ors. , the Apex Court has held that it is very common for the legislature to provide for a general rule-making power to carry out the purpose of the Act. When such a power is given, it may ,be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act.
137. The Apex Court in the case of Kishan Prakash Sharma v. Union of India in paragraph 18 of the reports has held as follows:
18. So far as the delegated legislation is concerned, the case-law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a biding rule of conduct. The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delegatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statute, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive.
138. The Anex Court in the case of Distt. Registrar and Collector, Hyderabad and Anr. v. Canara Bank Etc. AIR 2005 SC 188, has held that where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14.
139. The Apex Court in the case of State of Rajasthan and Ors. v. Basant Nahata , in paragraph 66 has held as follows: -
66. A thing which itself is so uncertain cannot be a guideline for any thing or cannot be said to be providing sufficient framework for the executive to work under it. Essential functions of the legislature cannot be delegated and it must be judged with touchstone of Article 14 and Article 246 of the Constitution of India. It is, thus, only the ancillary and procedural powers which can be delegated and not the essential legislative point.
140. Thus, it is well settled that the Legislature cannot delegate its essential legislative functions to the Rule-making authority or to the executive. It has to lay broad guidelines. The maxim delegates non potest delegare sets out what is merely a rule of construction and, therefore, sub-delegation can be sustained if permitted by an express provision or by necessary implication from the statute has been well recognized by the Apex Court in the cases of Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors. and Mangulal Chunilal v. Manilal Maganlal and Anr. .
141. From the aforesaid discussion and the cases referred to, the following principles emerge:
(1) The Legislature cannot abdicate its essential legislative functions.
(2) The Executive power of the State extends to make laws in respect of which the State Legislature is competent and implement State made laws irrespective of the fact as to whether the State legislature has made any law or not.
(3) While delegating powers, the State Legislature has to provide broad guidelines for exercising the powers.
(4) A delegatee cannot sub-delegate its powers.
(5) The provisions of the entire sections and also the Act and it objects are to be seen while judging the validity of a part of a provision.
142. Applying the aforesaid principles to the present case, we find that even though under Sub-sections (1), (3) and (4) of Section 9-A of the Act, the manner and percentage of the reservation for the number of seats in municipalities in favour of the Scheduled Castes, the Scheduled Tribes, women and the backward classes have been specified, no such specification has been made in Sub-section (5) of Section 9-A of the Act and the State Legislature has given the enacting power to the Rule making authority i.e. State Government. From a reading of the various provisions of the Act as also the whole of Section 9-A, the policy or the guidelines for the reservation on the post of President in a municipality cannot be spelled out. It leaves the entire matter at the discretion of the Rule making authority, which is clearly impermissible. The submission of Sri Kazmi that Rules framed by the State Government is a law framed by the State in view of the provisions of Article 12 and sub-Clause (a) of Clause (3) of Article 13 of the Constitution of India does not admit of any doubt but the question is as to whether it can be said to be a law framed by the Legislature of the Stale of Uttar Pradesh or not. Sub-section (5) of Section 9-A is an instance of delegation of power upon the State Government by the State Legislature. The principles and the limits enunciated by the Apex Court in the aforementioned judgments would be applicable.
143. The State of U.P. and others respondents cannot take any benefit from the provisions of Article 15 and 16 of the Constitution as we find that unlike Clause (3) and (4) of Article 15, which empowers the State for making any special provision for women and children and for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and Clause 4-A of Article 16 of the Constitution of India empowers the State for making any provision for the reservation in matters of appointment or promotion in favour of any backward class citizens and for making provisions for reservation in matters of promotion with consequential seniority in favour of the Scheduled Castes and the Scheduled Tribes, The Parliament while inserting Clauses (4) and (6) in Article 243-T by the Constitution Amendment Act has specifically provided for making laws by the State Legislature. The. State Legislature, thus, cannot be equated with the State Government even in terms of Article 12 of the Constitution of India as Article 12 is specifically confined to Part III of the Constitution of India. However, the mandate is very clear that it is for the Legislature of the State of Uttar Pradesh to make provisions for the reservation for the offices of Presidents in Municipalities for the Scheduled Castes, Scheduled Tribes, women and backward classes.
144. In the case of Indra Sawhney (I case) the Apex Court has held that reservation under Article 16(4) of the Constitution of India can be made by executive wing of the Union or of the States as the case may be; The Apex Court has held as follows:
55...The use of the expression 'provision' in Article 16(4) appears to us to be not without design. According to the definition of 'State' in Article 12, it includes not merely the government and parliament of India and government and Legislature of each of the States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and others authorities referred to in Article 12. The expression 'local Authority' is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, Panchayats and others similar bodies. The expression 'other authorities' has received extensive attention from the Court. It includes all statutory authorities and others agencies and instrumentalities of the State Government/Central Government Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government? This aspect would become clearer if we notice ,the definition of "Law" in Article 13(3)(a). it reads-
13(3) In this Article, unless the context otherwise requires.--
(a) "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law,....
The words "order", "bye-law", "rule" and "regulation" in this definition are significant, Reading the definition of "State" in Article 12 and of "Law" in Article 13(3)(a), it becomes clear that a measure of the nature contemplated by Article 16(4) can be provided not only by the Parliament/legislature but also by the executive in respect of Central/State services and by the local bodies and "other authorities" contemplated by Article 12, in respect of their respective services. Some of the local bodies and some of the statutory corporations like universities may have their own legislative wings. In such a situation, it would be unreasonable and inappropriate to insist that reservation in all services should be provided by parliament/legislature. The situation and circumstances of each of these bodies may vary, The rule regarding reservation has to be framed to suit the particular situations. All this cannot reasonably be done by Parliament/Legislature.
Even textually speaking, the contention cannot be accepted. The very use of the word 'provision' in Article 16(4) is significant. Whereas Clauses (3) and (5) of Article 16 and Clauses (2) to (6) of Article 19--use the word 'Law' Article 16(4) uses the word "provision". Regulation of service conditions by orders and Rules made by the Executive was a well known feature at the time of the framing of the Constitution. Probably for this reason, a deliberate departure has been made in the case of Clause (4). Accordingly, we hold, agreeing with Balaji, that the "provision" contemplated by Article 16(4) can also be made by the executive wing of the Union-,or of the State, as the case may be, as has been done in the present case. Balaji has been followed recently in Comptroller and Auditor General of India v. Mohan Lal Mehrotra .
145. The principle laid down by the Apex Court in the case of Indra Sahwney (supra) a shall not be attracted in the present case as Clauses (4) and (6) of Article 243-T of the Constitution of India specifically provides for making reservations by a law to be made by the State Legislatures.
146. We are, thus, of the considered opinion that Sub-section (5) of Section 9-A of the Act in so far as it provides for making reservation far the offices of Presidents and Vice Presidents in the Municipalities in favour of the Scheduled Castes, Scheduled Tribes, backward classes and the women by the Rule making authority is ultra vires being abdication of essential legislative functions as it does lay any guidelines. Consequently, Rules 6 and 6-A of the Rules also do not stand of their own and are liable to be set aside.
147. Before parting, we would like to deal with the arguments advanced by Sri Chaudhary regarding forgery in the reservation list announced by the State Government regarding the post of President in Nagar Panohayat Gola Bazar, district Gorakhpur. We find that the said allegation is wholly incorrect inasmuch as the page No. 24-A, which is typed copy of the annexure No. 1 to the writ petition of Sri Hira Lal Umar, the word 'woman' has been typed beneath the word 'backward class'. It appears to be a typing error committed by the petitioner as in the gazette notification there is no such error and the words 'backward class woman' is in the same line. Regarding merits of the notification dated 4.10.2000 as the term had already expired we are not called upon to decide its validity.
CONCLUSIONS:
(1) The provisions of Clauses (4) and (6) of Article 243-T of the Constitution of India as inserted by the Constitution (Seventy Fourth Amendment) Act, 1992 in part IX-A of the Constitution of India are held valid and intra vires and are within the amending powers under Article 368 of the Constitution of India.
(2) The provisions of Sub-section (5) of Section 9-A of the U.P. Municipalities Act, 1916 are declared ultra vires.
(3) Rules 6 and 6-A of the U.P. Municipalities (Reservation and Allotment of Seats and Offices Rules, 1994 in so far as it provides for reservation on the post of Presidents and Vice Presidents of Municipalities are declared illegal and invalid,
148. In view of the foregoing discussions, Civil Misc. Writ Petition No. 63611 of 2005 succeeds and is allowed whereas Civil Misc. Writ Petition No. 2247 of 2001 partially succeeds and is allowed in part. However, there shall be no order as to costs.