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Punjab High Court · body

2008 DIGILAW 1120 (PNJ)

Harmeet Singh v. Punjab State Election Commission

2008-05-29

DAYA CHAUDHARY, K.S.GAREWAL

body2008
Judgment K.S.Grewal, J. 1. The short question in this group of petitions is with regard to the number of seats allotted to or reserved for different categories of persons for the offices of Sarpanches, as a result of elections to Gram panchayats which are under way in Punjab. 2. According to Article 243(D) of the Constitution of India there is reservations of seats in favour of Scheduled Castes in every Panchayat. The number of seats so reserved shall bear as nearly as may be, the same proportion to the total number of seats as the population of the Scheduled Castes in that area bears to the total population. It has further been provided that such seats may be allotted by rotation to different constituencies in a Panchayat. Furthermore, there is to be l/3rd reservation in favour of women. 3. Section 12(a) of the Punjab Panchayati Raj, 1994 (hereinafter referred to as Panchayat Act) provides reservation of seats for the office of Sarpanch and this is of direct concern to us in the present cases. Section 12 lays down that offices of Sarpanches of Gram Panchayats in the district shall be reserved for Scheduled Castes in the same proportion as the population of Scheduled Castes in the district bears to the total population in the district. Furthermore, reservation in favour of women too follows the mandate of Article 243(D). Under Section 12(4) officers reserved under Section 12(1) shall be allotted by rotation to the different Gram Panchayats in such manner as may be prescribed. The explanation of this sub-section states that the principles of rotation for the purposes of reservation shall commence from the first election to be held after the * commencement of the Act. 4. It is under the Punjab Reservation for the Offices of Sarpanches of Gram Panchayats. Chairman and Vice Chairman of Panchayat Samities and Zila Parishads Rules, 1994 (hereinafter referred to as the Reservation Rules) that provision has been made for reservation of seats for the offices of Sarpanches. Under Rule 3 the Deputy Commissioner has been empowered to reserve the offices of Sarpanches for persons belonging to the Scheduled Castes in the same proportion as the population of the Scheduled Caste in the district bears to the total population of the district. The Deputy Commissioner is also to prepare the roster of reservation. 5. Under Rule 3 the Deputy Commissioner has been empowered to reserve the offices of Sarpanches for persons belonging to the Scheduled Castes in the same proportion as the population of the Scheduled Caste in the district bears to the total population of the district. The Deputy Commissioner is also to prepare the roster of reservation. 5. The Government of Punjab in exercise of the powers conferred under Section 227 read with Sections 12, 106 and 169 of the Punjab Panchayati Raj Act, 1994 (Punjab Act No. 9 of 1994) carried out two amendments to the Reservation Rules but we are concerned with addition of Sub-rule (3) to Rule 3. The newly added rule provides that the roster referred to in Sub-rules (1) and (2) shall be prepared block-wise by the Deputy Commissioner. 6. The learned Senior Counsel for the petitioner has argued that the Act mandates reservations taking the district as a unit but through the amendment to the Rule, effective from April 10, 2008 the roster is to be maintained block-wise. Is this constitutionally permissible? 7. On the face of it, Section 12 certainly expressly lays down that reservation has to be district-wise. This means that it is the district as a unit which has to be considered the basis for making reservations. However, the very basis for reservation is in fact the Scheduled Caste Population Ratio (we may refer to it as SCPR for short). If SCPR of the district is known then further reservation is made. Therefore, SCPR is the determining factor whether treated district-wise or on the basis of any other unit. 8. According to learned Counsel for the State, the SCPR gives us the number of seats which are to be reserved for Scheduled Castes, both men and women. If SCPR is 43% then 43 out of 100 seats would be reserved for Scheduled Castes, remaining 57 seats would be for general category. However, l/3rd reservation is for women belonging to both general category and scheduled caste category. Therefore, 33 seats out of 100 have to be reserved for women. Likewise l/3rd seats out of Scheduled Castes seats have to be reserved for Scheduled Caste Women. Consequently, reservation for Scheduled Castes on the basis of SCPR would be 43 (29 men and 14 women). Therefore, 33 seats out of 100 have to be reserved for women. Likewise l/3rd seats out of Scheduled Castes seats have to be reserved for Scheduled Caste Women. Consequently, reservation for Scheduled Castes on the basis of SCPR would be 43 (29 men and 14 women). Reservation for women is to be 33 but 14 have already been reserved for scheduled caste women, therefore, 19 seats would be reserved for women belonging to the general category. This would leave 38 seats reserved for open general category. 9. According to the petitioners, rotation once commenced on district-wise basis must continue on that basis otherwise rotation would break down completely inviting constitutional ire. This is an additional argument to challenge the rules which has introduced block-wise rotation by completely over-looking the provisions of Section 12 that lays down district wise rotation. 10. We asked counsel for the petitioners to give us details of past and present reservations for the offices of Sarpanches of their Panchayats. We were informed that in Dhabi Gujran (Punjab) in the present as well as the past two elections the office was reserved for general category (male). In Rangian (Ludhiana) as well the situation was identical to Dhabi Gujran. In Bhadson (Patiala) the office in 1998 reservation was for S.C. in 2003 for general and in 2008 again for SC. In Simbharo (Patiala) in 1998 reservation was for general (woman) 2003 for general category, 2008 for SC. In Bir Pind in 1998 reservation was for general in 2008 again for general there has never been a reservation for SC. 11. All petitioners have asserted that reservation by rotation should yield a change in reservation every election from general to general (woman in SC to SC woman). 12. Rotation means changing the seat meant for one category to another category. It is a statistical exercise which should be carried out with a certain degree of exactitude. One should be able to predict future reservations in the subsequent elections. In Punjab the principle of rotation was introduced in 1998. This was the first election after the coming into force of 73rd Constitutional Amendment. Therefore, in reality rotation stated to roll in the second election which took place in 2003. Original reservation of seats of 1998 and rotation in 2003 was on district wise basis but in 2008 it was changed to block-wise rotation in the last minute. This was the first election after the coming into force of 73rd Constitutional Amendment. Therefore, in reality rotation stated to roll in the second election which took place in 2003. Original reservation of seats of 1998 and rotation in 2003 was on district wise basis but in 2008 it was changed to block-wise rotation in the last minute. A clever manoeuvre no doubt and a cunning one too. But is it legally invalid. 13. We are not convinced that block-wise rotation is contrary to Section 12(4) because Section 12 itself provides that reservation of seats shall be rotated in such a manner as may be prescribed. Learned Additional Advocate General has argued that under Section 12(4) the State Government is to prescribe for rotation, it is certainly true that changing district wise rotation to block-wise rotation appears to be grossly violative of scheme of rotation. But on closer analysis, it would appear that this is not so. We have been informed by learned Additional Advocate General that the Scheduled Caste population ratio has been considered on block-wise for allotting reservation of seats in the present elections. Blockwise reservation excludes the population figure for areas which are not covered by the Panchayati Raj Institutions. 14. It should not be forgotten that the basis of reservation is SCPR of the block and l/3rd reservation for women. These figures change for different blocks. Rotation may cause heart burning in certain Gram Panchayats where rotational reservation is continuing for the second or the third time, in one form or the other. It is also possible that switching to block-wise rotation may extend reservation to later elections but we feel that block wise rotation is a more accurate and scientific method to determine allotment of the reserved seats. 15. Furthermore, it has been argued by the learned Additional Advocate General that Article 243-O of the Constitution interference by the High Court in electoral matters to question validity of laws relating to delimitation of constituencies or the allotment of seats (as is the case in allotting seats by rotation) is barred. 16. Mr. D.S. Pheruman, learned Counsel appearing on behalf of one of the petitioners in the connected case adopted the arguments advanced by the learned Senior Advocate but went on then further elaborate that there was no systematic rotations of seats. It was not known on what basis the rotation had been carried out. 16. Mr. D.S. Pheruman, learned Counsel appearing on behalf of one of the petitioners in the connected case adopted the arguments advanced by the learned Senior Advocate but went on then further elaborate that there was no systematic rotations of seats. It was not known on what basis the rotation had been carried out. Earlier, the rotation was district wise and had been done in alphabetic order of the various villages. Now rotation has been done block-wise but the same alphabetic order cannot be possibly available because the order of villages would be different when taken block-wise. It is not known whether the block-wise rotation was done alphabetically or on the basis of geography or on the basis of hadbast number of the Gram Panchayats. 17. The rotation has given very confusing results. Many instances were cited before us which showed that reservation for Panches in three rotation cycles 1998, 2003 and 2008 (all of which were district-wise) did not alter, as some villages continued to have one form of reservation or the other. The picture has not changed even in the new block-wise rotation. 18. It is true that block-wise rotation has in a few cases given asked results but this is inevitable. The reservation pattern is not so uniform that it would be a perfect rotation cycle in which all four categories of reservation would get regular rotation every five years. The determining factors SCPR which is the only constant but this ratio may vary from 22% to 43%, therefore, so would the reservation for Scheduled Castes and women. We have demonstrated above how the reservation is done but to expect that the rotation of seats would be uniform and fairly distributed, is not an easy task. Rotation can never be a please-all phenomenon. 19. Ideally the State Election Commission should be using information technology, armed with an appropriate software capable of carrying out algorithmic calculations. Rotation is like a spinning top whose axis is spinning in an eccentric fasion. It is now known that even the earths rotation is not perfect, while the earth rotates on its axis once in 24 hours the axis of the earth also wobbles by completing one cycle in about 24000 years. This has been scientifically proved and many old astronomical calculations have had to be changed on the basis of this phenomenon. 20. It is now known that even the earths rotation is not perfect, while the earth rotates on its axis once in 24 hours the axis of the earth also wobbles by completing one cycle in about 24000 years. This has been scientifically proved and many old astronomical calculations have had to be changed on the basis of this phenomenon. 20. One fails to understand why the State Election Commission can not declare in advance which Gram Panchayat shall have a Sarpanch of which category in 2008, 2013, 2018 and so on. There ought to be much more transparency. There should be time for filing objections petitions, it should not be a pick and choose method. Advance rotations should be notified for the next five rotation cycles. A rule similar to Rule 6 of the Reservation Rules should be framed for the office of Sarpanch as well. 21. We know it is a tall order. Block-wise rotation was put into effect just a few minutes before nominations opened, very little time was given to the prospective candidates to plan their course of action for the election or raise objections to unreasonable and misconceived rotation/reservation. 22. However, we are unable to really interfere in the election process at this stage even though block-wise rotation is apparently not in conformity with district-wise rotation mandated by Section 12 of the Panchayati Raj Act. Our reasons for this is firstly block-wise rotation is more accurate and scientifically proven, if it continues and is not changed after five years to some other rotational unit. Secondly, the Constitution forbids any interference in the election process in the allotment of seats. The constitutional bar is contained in Article 243-0 and the Constitutional position has been highlighted in Anugrah Narain Singh and Anr. v. State of U.P. and Ors.. 23. We are bound by the constitutional prohibitions and can not at this stage undo rotation which has already been put into motion and on the basis of which rotation, thousands of people have fought elections in the hope of ultimately getting elected as Sarpanches of the Panchayats in the different categories allotted to them. Similarly, many others have opted out of elections knowing that they would not be able to become Sarpanches because their Panchayats did not fall in the category to which they belong. Similarly, many others have opted out of elections knowing that they would not be able to become Sarpanches because their Panchayats did not fall in the category to which they belong. A Scheduled Caste candidate may have opted to fight the election because the seat was reserved for Scheduled Castes but change of reservation may put it in the general category, debarring that person from competing for the office of Sarpanch and there may not be any other acceptable general category Panch in that village. This is an additional reason for upholding the amended rules. One must harmonise the rule with the Panchayat Act and the Constitution through harmonious construction as we have done. 24. However before parting we would like to express our extreme dismay at the manner in which the elections have been conducted by making last minute changes in the rules of the game. This is unfair and has caused resentment in the people. It is not good for the village community who have seen through the whole exercise and regard it with cynicism and disappointment. Panchayat Raj Institutions are meant for development of the villages and not for machiavellian politics which seem to be the rule today. 25. In contemporary India inclusion is the order of the day. Be it financial educational or social. Our Constitution is a fine example of inclusion in governance, but it is dis heartening that in local self-government through Gram Panchayats, where every villagers wants to participate in the betterment of village life inclusion is not being allowed to develop and grow. Principle of inclusion is not being given the importance it deserves. Even the principle of subsidiary which requires matters to be handled by the lowest government authority, is being ignored. These are important issues which must be addressed by right thinking public men. 26. However, in view of the above discussion, we are unable to agree with the contentions raised by the petitioners and hold that Notification dated May 8, 2008 introducing block-wise reservation through Sub-rule (3) to Rule 3 of the Reservation is ultra vires Article 243(D) of the Constitution of India or Section 12(1) of the Punjab Panchayat Raj Act. 27. The petitions are dismissed.