Social Inclusion in Local Government: The Promise and the Limits

Clause (5): this reservation, unlike the women's reservation, ceases with the period specified in article 334, which is now eighty years from the commencement of the Constitution.

And more than proportion, in the Scheduled Areas

Section 4(g) of PESA, 1996: reservation in the Scheduled Areas shall be in proportion to the population of the communities concerned, provided that the reservation for the Scheduled Tribes shall not be less than one half of the total number of seats, and provided further that all seats of chairpersons of panchayats at all levels shall be reserved for the Scheduled Tribes.

Section 4(h): the State Government may nominate persons of Scheduled Tribes having no representation at the intermediate or district level, not exceeding one tenth of the elected members.

This is the strongest inclusion provision in Indian local government law and it is regularly missed in answers. In the Scheduled Areas the law does not merely mirror the population; it guarantees a majority and every chairperson.

Backward classes: enabling only

Articles 243D(6) and 243T(6): nothing in this Part shall prevent a State Legislature from making provision for reservation of seats or chairperson offices in favour of backward class of citizens.

This is permission, not command, and the difference is the whole of the litigation that followed.

The limits the courts have imposed: the triple test

K. Krishna Murthy v. Union of India, (2010) 7 SCC 202

A Constitution Bench upheld articles 243D(6) and 243T(6) and, in doing so, laid down how they may be used. Its conclusions:

Reservation in local self-government rests on a distinct constitutional basis. The nature and purpose of reservation in local bodies is considerably different from that in higher education and public employment, so articles 243D and 243T form a distinct and independent constitutional basis for affirmative action and the principles evolved under articles 15(4) and 16(4) cannot be readily applied; and reservation here need not last as long as reservation there, but can be much shorter.

The clauses are valid because they are enabling. Objections about disproportionate reservation must be raised by challenging the State legislation, not the constitutional provision.

Political backwardness is a different thing. The Court accepted the distinction between selection and election: social and economic backwardness is a barrier to competing for a college place or a government post, and does not necessarily act as a barrier to political participation, so economic backwardness should not be conflated with political backwardness. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation, which are quite different from patterns of disadvantage in education and employment.

Identification must be separate and current. The identification of backward classes under articles 243D(6) and 243T(6) should be distinct from the identification of socially and educationally backward classes for article 15(4) and of backward classes for article 16(4); it is an executive function; and, as article 340 contemplates, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry. The Court refused to rule on the quantum before it because there was no contemporaneous empirical data, only a commission report twenty years old.

Fifty per cent. The upper ceiling of fifty per cent vertical reservation in favour of Scheduled Castes, Scheduled Tribes and other backward classes should not be breached in local self-government, exceptions being permissible only to safeguard the interests of Scheduled Tribes in panchayats located in the Scheduled Areas.

Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73

Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 was read as requiring a uniform twenty seven per cent of seats for other backward classes in every local body in the State, and the aggregate reservation exceeded fifty per cent in several of them.

Held: a rigid provision fixing a uniform quantum across a State cannot be sustained; the quantum must be fixed for each local body on a contemporaneous empirical inquiry; and the provision was read down, the words "shall be" preceding twenty seven per cent being construed as "may be", so that reservation for backward classes may be notified only to the extent that the aggregate for the Scheduled Castes, the Scheduled Tribes and backward classes together does not exceed fifty per cent.

The triple test, as the Court applied it, is worth memorising in this order:

One. A dedicated commission must conduct a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness as it affects local bodies within the State.

Two. The State must specify the proportion of reservation required, local body by local body, in the light of the commission's recommendations, so that it is not overbroad.

Three. In any case the reservation must not exceed fifty per cent of the total seats reserved for the Scheduled Castes, the Scheduled Tribes and backward classes taken together.

Consequence in practice. A State that has not appointed such a commission and produced current data cannot lawfully notify backward class seats, and elections have in fact been held in several States without them for that reason. Reservation for backward classes in local bodies is therefore conditional and evidence based, which is exactly what reservation for the Scheduled Castes and Scheduled Tribes under clause (1) is not.

The limitations

1. A seat is not authority

Everything at chapter 930 applies to caste as well. A reserved sarpanch may be a proxy, dependent on the household that employs him, or unable to sign anything the dominant families oppose. Ambedkar's objection at chapter 880 is the correct frame: the reservation puts the excluded person into the room in a village whose power did not change when he entered it.

2. Rotation

Reserved seats and chairperson offices are allotted by rotation under clauses (1) and (4). It prevents any ward from being permanently reserved and it destroys incumbency on a five year cycle, so an effective member is regularly returned to a contest against those who were previously excluded from the seat.

3. The reservation cannot reach the practices

Reservation distributes seats. It does not by itself reach the separate glass, the separate street, the refusal to allow a sarpanch to sit on the chair or to hoist the flag, or the social boycott of a family that contested. Those are dealt with, if at all, by article 17, by the penal law on atrocities and by the courts, not by Part IX.

4. Backward class reservation is now the hardest to obtain

Since Gawali, it depends on a State doing empirical work it has often not done. A promise that requires the promisor to commission research before it can be performed is a weak promise, and an answer should say so plainly while accepting the Court's reason, which is that reservation without evidence of political backwardness is reservation without a justification.

5. And the office itself is weak

Article 243G is permissive, the money is transferred, and the officials are permanent. This is the limitation common to chapters 900, 930 and this one, and it is the single most important thing to say about inclusion in local government: the Constitution guaranteed the excluded a share of an office whose powers it did not guarantee.

A worked example

A zila parishad has sixty seats. The district population is fifteen per cent Scheduled Caste, ten per cent Scheduled Tribe. The State Act reserves twenty seven per cent for other backward classes in every local body in the State.

Scheduled Castes and Scheduled Tribes. Nine and six seats respectively, being as nearly as may be the proportion of population under article 243D(1). Of those fifteen, not less than five are for women of those communities under clause (2). Reserved by force of the Constitution, and no inquiry is needed.

Women. Not less than twenty of the sixty under clause (3), the five above counting within that number.

Other backward classes. Twenty seven per cent would be sixteen seats. Fifteen plus sixteen is thirty one, which is more than half of sixty. On Gawali, the statewide figure cannot be applied rigidly, the aggregate cannot exceed fifty per cent, and the backward class share must be fixed for this zila parishad on the report of a dedicated commission that has made a contemporaneous empirical inquiry. Without such a report the seats cannot lawfully be notified as reserved at all.

In a Scheduled Area the arithmetic is different. Section 4(g) of PESA requires not less than one half of the seats for the Scheduled Tribes and reserves every chairperson office at every level for them, and K. Krishna Murthy expressly preserved the Scheduled Areas as the exception to the fifty per cent ceiling.

Four different legal regimes in one worked example, and being able to separate them is what the topic tests.

Distinctions that carry marks

What this is NOT

It is not reservation on the article 16(4) model. K. Krishna Murthy held that articles 243D and 243T are a distinct and independent constitutional basis, that the principles evolved for education and employment cannot be readily applied, and that the duration here may be much shorter.

The fifty per cent ceiling is not absolute. The Court preserved an exception for Scheduled Tribes in panchayats in the Scheduled Areas, and PESA requires not less than one half there.

The triple test is not hostility to reservation. The Court upheld the enabling clauses. What it required is evidence of political backwardness, on the ground that social and economic disadvantage does not by itself prove a barrier to political participation.

And inclusion in local government is not a substitute for the rest. Article 17, the atrocities law and the ordinary courts do work that no distribution of seats can do.

Quick revision

1. Mandatory: 243D(1)/243T(1), Scheduled Castes and Scheduled Tribes in proportion to population in every local body; clause (2), one third of those seats for their women; clause (4), chairperson offices, upheld in K. Krishna Murthy as not equatable with solitary posts; clause (5), ceasing with article 334, now eighty years from commencement.
2. Enabling only: 243D(6)/243T(6) for backward classes.
3. K. Krishna Murthy (2010): a distinct and independent constitutional basis; political backwardness is not social and educational backwardness, and the selection/election distinction; identification must be separate from 15(4) and 16(4) and made by dedicated commissions under article 340 on a rigorous empirical inquiry; fifty per cent ceiling, except for Scheduled Tribes in Scheduled Areas.
4. Gawali (2021): a uniform statewide quantum cannot be sustained; section 12(2)(c) read down, "shall be" construed as "may be"; and the triple test: a dedicated commission's contemporaneous rigorous empirical inquiry; the proportion fixed local body by local body; and an aggregate ceiling of fifty per cent.
5. PESA s.4(g) and (h): in the Scheduled Areas, reservation for the Scheduled Tribes not less than one half, all chairperson offices at all levels reserved for them, and nomination of unrepresented Scheduled Tribes up to one tenth.
6. Limitations: the seat is not authority; rotation; the reservation cannot reach the practices, which belong to article 17 and the atrocities law; backward class reservation now depends on research the State has often not done; and article 243G is permissive, so the guaranteed share is a share of a weak office.

Test yourself

1. What does Part IX guarantee for the Scheduled Castes and the Scheduled Tribes, and what does it merely permit for backward classes? Articles 243D(1) and 243T(1) require that seats be reserved for the Scheduled Castes and the Scheduled Tribes in every panchayat and every municipality, in as nearly as may be the same proportion to the directly elected seats as their population bears to the total population of the area, with allotment by rotation. Clause (2) requires not less than one third of those reserved seats to go to women of those communities, and clause (4) reserves chairperson offices in the same proportion at each level. Clause (5) applies the article 334 sunset, now eighty years from the commencement of the Constitution. For backward classes, clause (6) provides only that nothing in the Part prevents a State Legislature from making provision for reservation of seats or chairperson offices in their favour. The first is a command that operates on the census figures alone; the second is a permission that operates only if the State legislates and can justify what it has done.

2. State the holdings in K. Krishna Murthy v. Union of India. That the nature and purpose of reservation in local self-government is considerably different from that in higher education and public employment, so that articles 243D and 243T are a distinct and independent constitutional basis for affirmative action and the principles evolved under articles 15(4) and 16(4) cannot be readily applied, and reservation here may be for a much shorter period. That articles 243D(6) and 243T(6) are valid because they merely enable, so complaints of excess must be directed at the State legislation. That claims of overbreadth could not be examined for want of contemporaneous empirical data, the onus being on the executive to investigate the patterns of backwardness that act as barriers to political participation, which are quite different from disadvantage in education and employment, with dedicated commissions to be appointed as article 340 contemplates, and the identification of backward classes for these articles being distinct from that under articles 15(4) and 16(4). That the upper ceiling of fifty per cent vertical reservation should not be breached in local self-government, exceptions being permissible only to safeguard Scheduled Tribes in panchayats in the Scheduled Areas. And that reservation of chairperson posts under articles 243D(4) and 243T(4) is valid, such posts not being equatable with solitary posts in public employment.

3. What is the triple test, and what did Gawali decide? The triple test requires, first, that a dedicated commission conduct a contemporaneous and rigorous empirical inquiry into the nature and implications of backwardness as it affects local bodies in the State; second, that the State specify the proportion of reservation required local body by local body in the light of that commission's recommendations, so that the provision is not overbroad; and third, that in any case the reservation not exceed fifty per cent of the total seats reserved for the Scheduled Castes, the Scheduled Tribes and backward classes taken together. In Vikas Kishanrao Gawali v. State of Maharashtra the Supreme Court applied it to section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, which had been read as fixing a uniform twenty seven per cent for other backward classes in every local body. It held that so rigid and uniform a provision cannot be sustained, read the words "shall be" preceding twenty seven per cent as "may be", and confined reservation for backward classes to what leaves the aggregate within fifty per cent, to be fixed for each local body on a contemporaneous empirical inquiry.

4. What does PESA add, and why is it the strongest inclusion provision in this area? Section 4(g) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 provides that reservation in the Scheduled Areas at every panchayat shall be in proportion to the population of the communities for whom it is sought, but with two provisos: that reservation for the Scheduled Tribes shall not be less than one half of the total number of seats, and that all seats of chairpersons of panchayats at all levels shall be reserved for the Scheduled Tribes. Section 4(h) further allows the State Government to nominate persons of Scheduled Tribes having no representation at the intermediate or district level, up to one tenth of the elected members. It is the strongest such provision because it does not merely mirror the population but guarantees a majority and every chairperson office, and because K. Krishna Murthy expressly preserved the Scheduled Areas as the exception to the fifty per cent ceiling that otherwise governs.

5. State the limitations of social inclusion through local government. That a reserved seat delivers presence and not authority, so a sarpanch from an excluded community may be a proxy, dependent on the households that employ his family, or unable to act against the dominant families, which is Ambedkar's objection to the village operating inside the institution built to answer it. That rotation, though fair between constituencies, destroys incumbency every five years. That reservation cannot reach the practices themselves, the separate glass, the separate street, the refusal to let an elected person occupy the chair or hoist the flag, and the social boycott of a family that contested, all of which belong to article 17, the law on atrocities and the courts rather than to Part IX. That backward class reservation, since Gawali, depends on empirical work many States have not done, so that elections have been held without those seats at all. And that article 243G is permissive, so what is guaranteed is a share of an office whose powers the Constitution did not guarantee.