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Tuesday, May 24, 2022

Reserved for judgment

Earlier, parliament had introduced reservation in RLBs through the 73rd and 74th Constitution Amendment Acts, and in ULBs through articles 243D and 243T respectively.

Written by Sudhirkrishnaswamy |
November 27, 2008 3:09:04 am

Should there be reservations in local government? Earlier, parliament had introduced reservation in Rural Local Bodies (RLBs) through the 73rd and 74th Constitution Amendment Acts, and in Urban Local Bodies (ULBs) through articles 243D and 243T respectively. The constitutional validity of these amendments were challenged in the Supreme Court for destroying the basic features of democracy, equality, fraternity, secularism and the unity and integrity of India. The hearings were completed earlier this month and the matter has been reserved for judgment. Here’s what I think the Supreme Court should do: read down the provision for backward class reservation, and declare invalid reservation in elected executive offices.

The 73rd and 74th Amendments are not the first instance of reservation to seats in legislatures in the Indian Constitution. However, three features of these amendments demand careful scrutiny. First: the rationale for reservation in legislatures is the same as those advanced in support of reservation of seats in education and public employment (justification problem). Second, the amendments extend the mandatory categories of beneficiaries besides SC/ST to include women and “backward class” (beneficiary problems). Finally, the amendment reserves electoral seats and the elected higher executive offices in local government (executive reservation problem). I will consider each problem in turn.

Justification problem: Affirmative action policy is justified by showing empirical evidence of inadequate representation as a result of discrete acts or structural discrimination. While the under-representation of women and SC/ST groups in all political institutions may be asserted to be empirically true, the same cannot be said for all the backward classes in our existing political institutions. The basic feature of democracy requires that any abridgment of the right to contest elections or the right to choose a candidate must be adequately justifiable. In Indira Gandhi v Raj Narain (1975 SC) the court held that the statutory right to resolve election disputes before an impartial tribunal was a key ingredient of the basic feature of democracy. Hence, the court must protect the basic feature of democracy by requiring that states must empirically demonstrate inadequate representation before they proceed to make reservations for backward classes.

Beneficiary problem: The reservation of seats in legislatures in the Indian Constitution was limited to SC/STs and Anglo-Indians. The expansion of the category of beneficiaries to reservation in local government institutions raises a critical question: are the criteria for identifying beneficiaries for reservation in the fields of education and public employment the same as those who should benefit from reservation in legislatures? The Supreme Court cases on reservation have assumed that there is a constitutional and moral equivalence between reservation in education, public employment and elections thereby obscuring the empirical and normative justifications in each sector. In a liberal democratic election, more populous groups are likely to register significant electoral success. Hence, where beneficiaries identified belong to the largest groups in our society which already enjoy significant electoral success, reservation may constitutionally entrench their control over these institutions. Moreover, as the amendments do not prescribe the quantum of reservation for backward classes, there is need for clarity on how the 50 per cent limit on reservation will be computed as reservation for different categories is computed along a horizontal and vertical axis to accommodate cross-cutting categories.

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Executive reservation problem: The amendments provide for reservation of seats in legislatures and in the offices of chairpersons of the ULBs and RLBs. The introduction of reservation to higher executive offices is a new and significant expansion of reservations, analogous to reserving the posts of chief minister and prime minister at the state and union government. The force of this analogy is obscured by portraying RLBs and ULBs as the decentralised “executive” arm of government as they do not enjoy law making powers. This portrayal mischaracterises the devolutionary nature of local government and does not explain why articles 243D and 243T separately provide for reservation for legislative seats and executive offices. While reservation has been allowed in the lower unelected portion of executive government, we have hitherto not permitted reservation to the higher elected segment of the executive. The reservation of such offices is tantamount to constraining voter choice in the entire political unit by limiting the head of executive government by virtue of the caste, class or gender identity of the candidate. This constraint on voter choice destroys the fundamental maxims of a liberal democracy where the key criterion to be head of government is the weight of a popular mandate. This maxim applies with equal force to the heads of executive government at all three levels: the union, state and local government. Hence, the court should strike down reservation in higher executive office as it damages the basic feature of democracy.

The justification, beneficiary identification and the executive reservation problems identified above do irreparable damage to the basic feature of democracy. The Supreme Court should use this opportunity to encourage the pursuit of equality by sustaining reservation in local government, but refine its use to protect the core values of our representative democracy.

The writer is assistant professor at National Law School, Bangalore

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