S.J. MUKHOPADHAYA, J.

(1) The controversy relating to reservation in the matter of education and service, which started since 1951, was ultimately set at rest in the end of 1992, by the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 .Immediately thereafter, by the Constitutions (73rd Amendment) Act, 1992, a new principle of reservation has been laid down under Article 243D of Constitution of India, in the matter of Panchayat election. The Respondent-State of Bihar then came out with Bihar Panchayat Raj Act, 1993 (for short Panchayat Act, 1993). The aforesaid Constitutional Amendment and Panchayat Act, 1993 have now given rise to the new controversy relating to reservation in Panchayat election. By the aforesaid 73rd Amendment of Constitution, followed by Panchayat Act, 1993, a new Provision has been laid down, reserving seats in favour of Scheduled Castes, Scheduled Tribes and Backward class persons, in the matter of Panchayat election. As to whether such reservation of seats in the matter of Panchayat election is permissible or not, is the main issue in the present writ petitions.

(2) The petitioners of C.W.J.C. 3351/94 have challenged a part of Article 243D of Constitution, to the extent clause (6) is concerned. They have also challenged Sections 13, 15 and 36 of Panchayat Act, 1993. The validity of the total constitutional provisions of Article 243D is also under challenge in C.W.J.C. 10716/95. In the said writ petition, other provisions like Sections 38, 63, 69 and 91 of Panchayat Act, 1993 are also under challenge, apart from other sections. In one of the writ petitions (C.W.J.C. 11414/94), apart from the aforesaid challenges, Schedule-I of Panchayat Act, 1993, has also been challenged. The said Schedule-I contains list of Backward class. A provision relating to formation of Gram Kutchery (Village Court) which has been included under Chapter-VI of Panchayat Act, 1993, is also under challenge in C.W.J.C. 6853/95. In the rest of the writ petitions, one or other aforesaid provisions are under challenge.

(3) Before dealing the matter, it is to be taken into note that there is acute paucity of precedence of Supreme Court and High Courts, directly covering the issue, in question. However, from some of the decisions of the Supreme Court, relating to reservation, including the last decision in Indra Sawhney, AIR 1993 SC 477 , and a decision of Full Bench of this Court in Janardan Paswan, AIR 1988 Patna 75, it appears that certain similar question have been dealt with therein.

(4) Mr. Kanth, Senior Advocate led the argument on behalf of the petitioners, followed by other counsel for the petitioners. It is for the said reason, the main argument which was advanced by Mr. Kanth, reiterated by others, is being taken into account. Some additional argument, which has been advanced by one or other counsel, has also been taken into note.

(5) According to the counsel for the petitioners, the provision of Article 243D is ultra vires, as the same suffers from the vice of unconstitutionality and infract Article 14. While giving the background relating to various Constitutional Amendments, it was contended that while the Supreme Court looked into the matter initially in Shankari Prasads case AIR 1951 SC 458 and decided the issue relating to Constitutional Amendment, the matter was finally set at rest in Keshvanda Bhartis case AIR 1973 SC 1461 . According to Mr. Kanth, no amendment to any part of the Constitution is permissible, if it violates or disturb or alter the basic structure and basic feature of the Constitution.It was urged that democracy, democratic republic, political justice, equality of status, as well as, opportunity having been made part of preamble of Constitution of India, specifically, they being guided by Articles 14, 15, 40, 325 and 326, they are the basic structure of Indian Constitution. The counsel relied on the definition of basic structure as laid down by Supreme Court in Keshvananda Bhartis case AIR 1973 SC 1461 , which was subsequently followed by the Supreme Court in Indira Nehru Gandhi, AIR 1975 SC 2299 and in Minerva Mill Limited, AIR 1980 SC 1789 . It was contended that democracy in the context of Indian Constitution mean peoples power for self governance. The same can be made effective only when certain rights continue to remain with the people, namely, (a) right to vote; (b) right to choose their representatives in a free and fair manner and; (c) right to participate in the self governance.According to him, though reasonable restrictions can be made in the adult franchise, but any law seeking to abrogate the inherent right of the people, which flows from the preamble, including right to have a democratic Government and equality of status and opportunity, such law must be held to be offending the basic feature / structure of the Constitution.According to the petitioners, to participate in democratic process is an inherent right and / or basic right flowing from the Constitution itself, the same is not dependent on any of the particular Article or provisions of the Constitution, nor is dependent on any statutory grace. It was submitted that selection in various authorities, such as, Municipality, Legislative Assembly etc. the legislative competence, though wide, has to remain confined only as a regulatory measures of general applications without offending or curtailing the basic right of the people.It was submitted that Parliamentary form of Government is, in fact, not indigenous concept of Indian People. It is a borrowed ideology, borrowed through the windows opening to the west, after independence. It was for the said reason, the very first line of preamble says: "We the people of India ............."While narrating the Indian history, it was contended that theCall for Swaraj" started since the Congress session in Calcutta in 1906, which was ultimately converted as Call for Purna Swarajin 1929. It was submitted that the Swaraj means self governance, which is the initial conception of Indian democracy and any curtailment of such inherent right, particularly curtailment of right to participate in such self-Governance, amounts to infringing the fundamental right and affecting the basic feature of the Constitution.According to the petitioners, equality is not only the fundamental right, but it is also form and part of the basic structure. The Legislative powers cannot be exercised abrogating the principles of equality, including equality of status and opportunity. The departure is permissible only if classification is made, which is based on intelligible differentia, having nexus with the object sought to be achieved. According to him, once the classification so resorted, which adversely affect any class of people, the burden to establish the reasonableness, constitutionality and validity of such discriminatory action lies upon the State. It is for the State/ Union to satisfy the aforesaid to tests, particularly, when the differentia is alleged to be made on the ground of Backwardness of 128 castes, supposedly forming a group known as Backward class. It was contended that differentia can be intelligible, only if the State by affirmative action can show that the favoured class, in the particular chosen field, is a deprived class.It was submitted that the castes like - Yadavas, Kurmis and Koeris, who have been included as Backward class in Schedule-I of Panchayat Act, 1993, they are more than adequately represented, not only at the level of Panchayat, but also at the level of Assembly and Parliament, to the extent of more than 50 per cent. In this background, it was submitted that there was no intelligible differentia that is there to make any reservation in favour of such class, namely, the so called Backward class.The counsel referred the Full Bench decision of this Court in Janardan Paswan, AIR 1988 Patna 75. It was stated that similar reservation in the matter of Panchayat election was made by the State of Bihar Vide Bihar Panchayat Raj Act (Amendment) Ordinance, 1987. A Full Bench of this Court specifically held that such reservation in the matter of Scheduled Castes, Scheduled Tribes and Backward Class was not permissible at the grass-root level of village Panchayat, as the Constitution mandates and equality of franchise for the citizens in the context of election, both the general as well as grass root level Panchayat election. It was further submitted that the Full Bench of this Court in Janardan Paswan (supra) gave specific finding that the solitary post of Mukhiya cannot be reserved in favour of any class / caste. It was also submitted that the matter having been finally settled by a Full Bench of this Court, Article 243D being similar like Bihar Panchayat Raj (Amendment) Ordinance, 1987, the same is also to be declared as ultra vires.Counsel for the petitioners, while referring the definition of Gram Sabha, submitted that every villager whose name finds place in the electoral roll is a member of Gram Sabha. Such members have the right to vote and right to be elected but it was contended that because of reservation provided under various provisions of the Act, in pursuance of Article 243D, Constitution, the members of General category though allowed to take part in vote, they have been denied to participate in self-government, having not been allowed to seek election. This, according to the petitioners, amounts to total abrogation of inherent right of General citizens as conveyed by concept of democracy. According to the petitioners, even the right to vote loses all its meaning, the choice being limited amongst a class of people.

(6) So far as reservation is concerned, according to the counsel for the petitioners, reservation at different levels of Panchayat is a new concept, so far Constitution is concerned. It was submitted that the Article 243D cannot be equated with the provisions like Articles 330, 332 and 334 of Constitution. It was submitted that the Articles 330 and 332, being special provision for limited period, reservation has been provided in favour of Scheduled Castes and Scheduled Tribes of a particular area (State) in Lok Sabha and Vidhan Sabha. Such reservation has not been made for all over the country. It was suggested that under the aforesaid provision, though reservation has been made to become the Member of Lok Sabha and/ or Vidhan Sabha, there is no reservation prescribed to be a member of Gram Sabha with respect to a Panchayat. It was, in the aforesaid background, suggested that no comparison can be made with respect to reservation as stipulated under Articles 330 and 332 of Constitution with the present reservation as laid down under Article 243D of Constitution.According to the counsel, in Lok Sabha or Vidhan Sabha, though there is reservation for being a Member, there is no reservation in forming a Ministry. It was suggested that in the case of Panchayat, there is no such reservation for being a member of Gram Sabha, but a reservation has been made to become a member of the Cabinet of self-Government, i.e. to become a Pancha. It was suggested that the Members of Gram Sabha are to be compared with members of Lok Sabha, the Panches are to be compared with the Council of Minister and the Mukhiya is to be compared with the Prime Minister of the country. So, according to them, as there is no provision like reservation in forming a council of Ministers or for the post of Prime Minister, no such provision relating to reservation can be made with respect to seats of Panchayat (Panches) and/or Mukhiya and similarly in Samiti and / or Zilla Parishad.So far as the provision of reservation which has been made dependent on the proportion of population of a class is concerned, it was submitted that such proportionate reservation is repugnant and totally contrary to the Constitution. According to the counsel, communal award for separate electoral roll for Muslims was introduced by Indian Councils Act, 1909, based on Morley Minto reference. Separate Constituencies were created for a different groups based on population divisions in society, but the same was consciously rejected by the framers of the Constitution, while opting for mixed and joint electorate. Even Dr. Ambedkar, who was initially of the view that a separate electorate be carved out with respect to the members of the Scheduled Caste, which compelled Mahatma Gandhi to go on indefinite fast, finally culminated into historic Puna pact, deciding in principles that temporary provision of reservation for Scheduled Caste and Scheduled Tribes be given in the mixed or joint electorate. It was submitted that by virtue of the provision of Article 243D, the principle which was earlier rejected by the framers of the Constitution, the same is now being introduced.

(7) Counsel for the petitioners submitted that the reservation is an idea under the principles protective discrimination to ensure that the weaker sections have a place in Legislature, which otherwise was unlikely. The spirit underlying limited period of reservation is that as soon as they can get themselves elected independently, this provision is to be made redundant. By no stretch of imagination, such reservation can be made proportionate to the population, which will otherwise change the basic structure of the Constitution. The recognition of every citizens is an individual recognition without any level of caste or community.The counsel pointed out that the provisions under Arts. 330 and 332 of Constitution is limited to a particular area. Framers of the Constitution, taking into account the socio, political and geographical position of a particular State and / or particular caste, laid down such provision, which is completely an interim measure. The reservation of seats as made in favour of a particular community in Sikkim Legislative Assembly, has been taken into note by the Supreme Court in the case of R.C. Poudyal, (AIR 1993 SC 1804 ). The reason assigned therein for such reservation was historical. It was contended that while the framers of the Constitution took into note the history of Scheduled Castes, Scheduled Tribes and Backward Class, never thought it proper to make proportionate reservation in the matter of election; there is no occasion in the present time to lay down such reservation in the matter of Panchayat election.

(8) So far as compensatory discrimination is concerned, the counsel for the petitioners submitted that such compensatory discrimination or smoggling (sic) the very idea in the domain of jurisprudence is dangerous proposition. Wheel of time and history cannot be turned back. In any case, such compensatory discrimination beyond the limits of present life and present generation is repugnant to the spirit of Constitution as it stands since 1950. It was contended that such compensatory discrimination, if allowed, then the Muslims who ruled over India for centuries are to be deprived of their powers, which is not the spirit of the Constitution.

(9) So far as Panchayat Act, 1993 is concerned, it was contended that the definition of Backward Class has not been mentioned therein. Simply Schedule I of the said Act has been referred in the definition clause, which includes 128 castes. According to the counsel for the petitioners, the basic factors to include the aforesaid 128 castes, as a separate class for the purpose of Art. 243D(6) of Constitution is completely wanting. It was contended that though some of the castes included in Schedule-I of the Act may lack in political wisdom and may be inadequately represented in the political field, but they cannot be clubbed with the dominant castes, such as, Yadavas, Kurmis and Koeris, who are dominating in the political field. To club, the class which is lacking adequate representation in the political field with the class which is dominating the political field, itself is violative of Art. 14 of the Constitution. Giving reference to different dates, it was pointed out that in the last Panchayat election held in 1978, out of 11,378 posts / seats of Mukhiyas, more than 5,000 seats / posts are being held by dominant castes i.e. Yadavas, Kurmis and Koeris, but in spite of the same they have been included as Backward class in the Schedule-I. The counsel submitted that the aforesaid inclusion itself shows non-application of mind on the part of the Respondents, while framing the Panchayat Act, 1993, and is violative of Art. 14 of the Constitution.Giving reference to the decision of the Supreme Court in Indra Sawhney, AIR 1993 SC 477 , it was contended that while caste can be a criteria, such caste cannot be the sole criteria for determination of Backward class with respect to Art. 243D of Constitution. It was submitted that the determination of Backward class should have been made by Commission under Art. 340 of Constitution taking into note the social and political backwardness of caste or class of people. It was submitted that such determination with respect to Backward class having not been made for the purpose of Art. 243D of Constitution of India, the definition of Backward class and the Schedule I of the Act is fit to be set aside. It was submitted that the caste, as mentioned in Schedule I of the Act may be Backward class for the purpose of Art. 16(4) or 15(4) of Constitution, but for the purpose of electoral reservation, all of them cannot be held to be Backward class.It was suggested that no specific provision and definition having been laid down under clause (6) of Art. 243D of Constitution, with respect to determination of Backward class, the clause (6) of Art. 243D, the provisions of reservation in favour of such Backward class, as made under the Act, is fit to be declared as ultra vires.It was pointed out that while under the Act, is fit to be declared as ultra vires.It was pointed out that while under the scheme of the Act, a voter is restricted to participate in the electoral process only in the concerned village / area, in federal system, for the purpose of Assembly and Parliamentary election, a voter of one constituency is entitled to seek election from any other constituency. This shows that even the right of a person to seek election from another seats, which is unreserved, is not permissible.

(10) Mr. Tara Kant Jha, Senior Advocate, while appearing on behalf of the petitioners of C.W.C.J. Nos. 11414/95 and 11171/ 95, after reiterating the aforesaid submissions, he made his submission with respect to specific provisions of Panchayat Act, 1993. It was submitted that though under Art. 243D (Clauses 1 to 4), provision of proportionate reservation has been laid down, so far as Backward class is concerned, under clause (6) thereto, it has been left open to the concerned State. It was submitted that the Parliament, while laying down such Art. 243D, did not choose to make any particular mode of reservation in favour of Backward class, either by way of adequate representation or by way of proportionate representation. Depending on the backwardness of class of persons, their population in the State, neither the definition of Backward class was laid down, nor it has been made compulsory to make such reservation in favour of such Backward class under clause (6) to the aforesaid Article 243D of Constitution. It was submitted that if the sub-section (7) of Section 15 of the Act is given effect in the State of Bihar, admittedly almost in all segments/ areas, the total population of Scheduled Castes, Scheduled Tribes and Backward Castes (Class) being much more than 75 per cent, the total reservation of seats will come much more than 50 per cent, which will practically make the provision of Art. 14 of the Constitution as redundant. It was submitted that even theory of proportionate reservation has not been followed with respect to all the weaker sections, which will be evident from the fact while proportionate reservation has been made with respect of Scheduled Castes, Scheduled Tribes and Backward Class, such proportionate reservation has not been made with respect to other weaker section, namely, woman. It was submitted that admittedly the population of women in India as well as in the State of Bihar being about 50 per cent or more, making 1/3rd reservation in favour of such woman shows that the principle of proportionate reservation has not been followed.He also attacked the provision of subsection (7) of Section 15 on other ground. It was pointed out that while under clause (4) of Art. 243D, the reservation has been made with respect to chair-persons on the basis of proportionate population of Scheduled Castes and Scheduled Tribes, as is the population in the State, just in contrary under subsection (7) of Section 15. Such reservation with respect to seats of chair-persons has been made proportionate to population of area and not that of the State. It was submitted that the sub-section (7) of Section 15 itself being violative of Clause (4) of Art. 243D, is fit to be declared as ultra vires.

(11) Mr. P. K. Shahi, appearing in C.W.J.C. No. 1473 /95, mainly relied on the averments made in the said writ petition and enclosures attached thereto. From statements made in different paragraphs, it was pointed out that in one or other Panchayats, reservation has been made in the State of Bihar as high as 75 per cent to 90 per cent in favour of Scheduled Castes, Scheduled Tribes and Backward Classes. It was further pointed out that while Lohars were declared to be Scheduled Tribe by the decision of Patna High Court, as well as, the Supreme Court, as reported in 1994 (2) PLJR 580 (sic) such Lohars have been included as Backward class under Schedule-I of Panchayat Act, 1993. It was contended that the aforesaid inclusion itself shows that there was no determination of Backward Class made prior to promulgamation of Panchayat Act, 1993 and Schedule I thereto.

(12) Similarly, Mr. Banwari Sharma, while adopting the argument advanced by Mr. Kanth, placed reliance on the averment made in the writ petition (C.W.J.C. 10716 / 95). While giving the datas relating to reservation which has been made in favour of Scheduled Castes, Scheduled Tribes and Backward Class persons, in pursuance of Panchayat Act, 1993, it was submitted that the reservation being much more than 75 per cent, this Court should interfere in the matter. At the end of argument, he also placed reliance on a Book known as Bihar may Chunao - Jathi, Booth Lut Aur Hinsa, written by SHRIKANT, particularly, the datas given thereto.

(13) Mr. Pramod Kumar Sinha, Advocate appearing on behalf of the petitioners of C.W.J.C. No. 6853/95, mainly challenged Chapter VI of Panchayat Act, 1993, wherein provision has been laid down relating to Constitution of Gram Kutchery (village Court). It was submitted that Constitution of Gram Kutchery by electing members is unconstitutional and cannot be sustained in the law. Further, according to him, the members of Gram Kutchery being Judicial Officers, for all purposes, no reservation can be made with respect of such post of members of Gram Kutchery. He relied on different provisions of Chapter-VI of Panchayat Act, 1993, to show that the power of Judicial Officers of Lower Courts to try a case under Civil Procedure Code and Criminal Procedure Code has been curtailed and vested with Gram Kutchery. According to him, such curtailment is not only without application of mind but the same cannot be sustained in law, being not an alternative and efficacious forum to that of the Lower Court. It was pointed out by Mr. Sinha that no qualification has been laid down with respect to members of Gram Kutchery, who are to deliver the judgments relating to civil matters and criminal offences. Even an illiterate person can be elected as a member of Gram Kutchery, with respect of Section l10 of Panchayat Act, 1993. It was submitted that the provisions of Cr.P.C. having been laid down by an Act promulgated by Parliament, no curtailment with respect to the same can be made by a State legislation, such power being not vested with the State.

(14) Mr. D.D. Thakur, Senior Advocate appeared on behalf of the Respondent-State of Bihar and led the argument.According to him, the interpretation of Art. 243D of Constitution should be made after taking into account various pronouncements made by different Courts. While giving history of Heydons case by the House of Lords of the year 1584, he relied on the decision of Supreme Court in the Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 : (AIR 1955 SC 661 ). While relying on said decision, it was contended that this Court should look into four things, namely:(i) What was the common law before the making of the Act;(ii) What was the mischief and defect for which the common law did not provide;(iii) What remedy the Parliament has resolved and appointed to cure the disease of the common wealth, and;(iv) The true reason of the remedy, and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and "pre private commando" and to add force and life to the cure and remedy, according to the true intent of the makers of the Act "pro bono publico."While giving history of India, it was submitted that after British period, the country was virtually pushed to squalour and poverty. Its political divisions and sub divisions resulted in a painful fragmentation; social, political, communal and cultural disintegration became a stark reality. According to him, while, regional imbalances accentuated; some States like Maharashtra, Gujarat and Punjab became more advanced in comparison to the States like U.P. and Bihar. The castism flourished and penetrated into deeper vitals of the Society. Disparity of income between various classes was substantial, communal holocast preceding and following partition resulted in communal distrust which jeopardised even the very fabric of the Indian policy. Scheduled Castes and Scheduled Tribes as victims of history had suffered incessantly for ages. The backward classes equally suffered deprivations. It was in the aforesaid background, while makers of the Constitution looked into the matter, the entire Constitution making process made effort to create a document which ensures a just society. According to him, such a society could be possible only if all segments are given a fair and equal treatment. According to him, it was in the aforesaid background, the fundamental principles were laid down for the purpose of justice-social, economic and political and equality and fairness. It was submitted that for the purpose of such an egalitarian or a just society, the founding fathers of the Constitution made Constitutional obligation on the State to orient its policy so as to endeavour to achieve goals on the directions as contained in Chapter IV of the Constitution. According to him, the power is vested with the Parliament to amend the Constitution under Art. 368. Such amendment was made for a number of times for various purposes and also for the purpose of removal of inequalities. Further, the Supreme Court upheld the first amendment in the case of Shaneri Prasad 1952 SCR 89 : (AIR 1951 SC 458 ), which followed the decision of Sajjan Singhs case, AIR 1965 SC 845 . It was submitted that though in Golaknaths case, by majority decision, it reversed the view taken in the earlier two judgments and held that the fundamental rights could not be abridged and Art. 13(2) includes within it even a Constitutional amendment. But it does not preclude to make such amendment under Art. 368 of Constitution which does not affect the basic structure of Constitution and its fundamental right guaranteed under Chapter III. Such amendment can be made for giving effect to the directive principles of the State and is immuned from any attack. He referred to the case of Minerva Mills 1980 SC 1789 and observations of Honble Mr. Justice Chandrachud, as quoted under:"Amend as you may, even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage, therefore, you cannot destroy its identity."Coming to the conclusion, following submissions were made:(i) There are certain basic theme which like a thread run through the entire fabric of the Constitution and one such theme is the promise for removal of inequalities. Reliance was placed on Articles 38, 39 and 46 of Chapter-IV, forming part of the directive principles of the State Policy;(ii) Even the original constitution founding fathers have inserted Arts. 330 and 332, providing reservation in favour of Scheduled Castes and Scheduled Tribes in regard to elections to the Parliament and to the Legislative Assemblies. According to him, aforesaid Articles speak of representation, proportionate to the population of the aforesaid classes. The reservation, which was taken place, earlier prescribed a period of 10 years or so, was extended from time to time, and which is to take its end by the end of this century. It was submitted that the presence of the aforesaid two Articles is an unmistakable evidence of the fact that founding fathers themselves recognised the need to make a provision for reservation in favour of weaker sections like Scheduled Castes and Scheduled Tribes in relation to their representation in the lower House of Parliament and State Legislature.It was contended that reservation in local bodies like Panchayat at village level, Samiti at the Block level and Zilla Parishad at District level, which are units of self-governance, is consistent with the original scheme of the Constitution. No intelligible or understandable hypothesis can be discovered to find fault with the provision of Art. 243D of the Constitution.

(15) Referring to Schedule 11 of the Constitution, it was contended that the duties and responsibilities of Panchayat have been laid down therein. Such Schedule 11 shows that all of them relate to welfare of the poor, backward classes, Scheduled Castes, and Scheduled Tribes. It was urged that in absence of reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes, there is a possibility of power and authority sleeping into the hands of those who did not belong to those weaker sections. To ensure that the people have the benefit of various schemes at the Panchayat level, it was necessary to ensure that the power to frame and execute those schemes is also vested to the weaker sections, namely, S.C./S.T. and Backward classes.It was contended that in absence of such reservation, there was a chance that people belonging to weaker sections may be eased out of electoral battles with the help of money and muscle power. Making reservation in favour of such classes, even when the population is more than 80 to 90 per cent, means ensuring governance at the Panchayat level by the people who are in vast majority in every Panchayat area. It was contended that the amendment, therefore, does not hamper with any basic or essential features of Indian Constitution.

(16) So far as the claim of the petitioners relating to their fundamental right is concerned, it was submitted that the right to elect or get elected is neither a common law, nor a fundamental right and is only statutory right. It is only the Legislature, who may or may not in its wisdom confer on a citizen such a right.In this connection, he placed reliance on the several decisions of the Supreme Court:(1) In the case of N.P. Ponuswami, AIR 1952 SC 64 ;(2) In the case of Rama Kant Pandey, AIR 1993 SC 1766 (para 8) and;(3) In the case of Mohan Lal Tripathi, AIR 1993 SC 2042 (at 2045).

(17) Mr. Thakur accepted that the equality is an essential feature of the Constitution. But, according to him, it is the real equality and not a theoretical equality. Referring to Pradip Jains case (1984) 3 SCC 654 : (AIR 1984 SC 1420 ) (Para 13 thereof), it was contended that rule of compensatory discrimination has been laid down by the Supreme Court, and thereby reservation in favour of weaker sections by making such compensatory discrimination should be held to be valid piece of legislation to bring real equality between the classes of citizens.

(18) With respect to Panchayat Act, Mr. Thakur placed reliance on Clause (6) of Art. 243D of Constitution. It was submitted that the aforesaid clause conceals to the State the power to make reservation. Those powers are already vested to the State under Art. 15(4) read with Art. 40 and Entry 5 of List 2 of the 7th Schedule. It was urged that the combined reading of these provisions fully authorises the State Legislature to make a law, and by means thereof, to make provisions of reservation. The only ground on such provision can be challenged, if it is shown to be in contravention to Art. 14 of the Constitution. The tests are: whether Art. 14 is violated and whether classes in whose favour the reservation is made are differentiable from the rest on the basis of an intelligible differentia and whether there is a nexus between the classification and the object sought to be achieved. Applying such test, it will be obvious that even the Constitution itself recognises the difference between the backward classes and the rest, which will be evident from Arts. 15(4), 16(4), 330 and 332 of the Constitution.In this background, it is submitted that it is now too late in the day to contend that classification is not valid and is hit by Art. 14 of the Constitution.

(19) Mr. Thakur tried to interpret the provisions of Clause (6) of Art. 243D in various fashion. It was contended that a section of the statute has to be considered and read as a whole and one part of section must get colour from the other part thereof.It was contended that provision of Art. 243D is to be read as a whole along with Clauses 1 to 4 of Art. 243D, for the purpose of reservation in favour of Scheduled Castes, Tribes, Women, which is proportionate to their population. It was submitted that the pattern of reservation as shown in Clauses 1 to 4 of Art. 243D, the same had been adopted by the State for the purpose of Backward classes. According to him, if Clauses 1 to 4 of Art. 243D is held to be constitutionally valid, not being violative of any basic feature of Constitution, it is not open for any one to challenge the reservation in favour of Backward Classes as made by the State of Bihar, authorised under Clause 6 of that Article.

(20) For the purpose of interpretation, it was suggested that if there are two interpretations possible, one which advances the object of Legislature, should be preferred. In this regard, he relied on the decision of the Supreme Court given in the case of U.P. Bhoodan Yagna Samiti, AIR 1988 SC 2239 .It was submitted that the object of the amendment of the Constitution and the enactment of the Panchayat Act were made to provide for a differential dispensation in favour of weaker sections of society, namely, Scheduled Castes /Tribes / Women and Backward classes.It was submitted that Clause 6 of Art. 243D is a power coupled with the duty to exercise it and the reservation in favour of Backward classes. By virtue of Panchayat Act, 1993 to discharge such a duty, lay upon the Legislature of the State of Bihar, therefore, no fault can be found therewith.Thereby, it was submitted that the Panchayat Raj Act, 1993 has the sanction of the Constitution and, therefore, it cannot be held to have contravened any provisions thereof.

(21) The counsel gave stress on the word any occurring in clause (6) of Art. 243D of Constitution. According to him, the word any gives carte blanche to the State Legislature to make any provision. When the Constitution clearly says nothing in Part IX shall prevent the Legislature of a State to make any provision for reservation in favour of Backward classes in relation to Panchayat election, it is hardly open to the petitioners to challenge the extent of that power. It is only on the ground of contravention of Art. 14, such challenge can be made which is not available in the present cases.

(22) Mr. Thakur submitted that while Art. 16(4) provides reservation in favour of educationally and socially Backward classes as are not adequately represented, in public services of the State, no such condition is contained in Art. 243D. It is, therefore, unmistakable that the State has not to show that the Backward Classes, Scheduled Castes and Scheduled Tribes were not adequately represented and, therefore, reservation for them was necessary in Panchayat Bodies. In fact, reservation in such Bodies is a step for advancement of the aforesaid classes, which is good enough for the purpose of election in Panchayat.According to the counsel for the State, the social backwardness is a term of white connotation and is inclusive of political backwardness as has been held by the Supreme Court in Vasant Kumar v. State of Karnataka, AIR 1985 SC 1496 and relied upon Para 71 of the case of Indra Sawhney, AIR 1993 SC 477 . It was further submitted that social backwardness could be caused by economic reasons, political reasons or social reasons jointly or severally. Denial of legitimate share for centuries in the political power or decision making processes has been held to be a cause of social and educational backwardness. Their advancement in these fields can as well as conducive to their advancement in the rest of the spheres of their lives. Relying on Art. 38, it was contended that the said Article relates to political justice and denial of due share in power structure at all levels is political injustice. Making reservation in Panchayat Bodies, such political injustice is to be removed. Justice - Political, Economic and Social being essential features of the Constitution.

(23) So far as power to declare a particular class as a Backward class and definition of such Backward class is concerned, it was submitted that Art. 340 provides appointment of Commission to investigate the conditions of educationally and socially Backward classes. Article 341 envisages the President to specify the castes, races or tribes who can be deemed to be Scheduled Tribes in relation to a State. Similar provision is contained in Art. 342. Giving reference to the lst Backward Commission under the Chairmanship of Mr. Karlekar and the 2nd Backward Commission under the Chairmanship of Mr. B.P. Mandal, it was submitted that after comprehensive exercise and on the basis of collected scientific data from various sources, the Backward classes have already been defined and they have thrashed out and thereby a declaration can be given by the State Government as has been done by Schedule of the Panchayat Act of 1993.

(24) While Mr. Thakur accepted that the reservation is only a transitional phenomina, but submitted that while clause (5) of Art. 243D of Constitution stipulates reservation conterminus with the expiry of the period specified in Art. 334, clause (6) of Art. 243D, has left the same open for the State Legislature to decide whether reservation is to be subjected to any limitation or duration. The Parliament never intended to limit the same, no limitation having been imposed under clause (6) of Art. 243D for the purpose of reservation in favour of Backward classes. However, it was contended that logically when reservation in favour of Women, which too is a transitional measure, to continue even beyond the period fixed by Art. 334, there is no reason as to why the reservation in favour of Backward classes cannot continue beyond the expiry of the period mentioned in Art. 334. His argument was based on the ground that the commencement of reservation in favour of Women and Backward class is simultaneous, whereas there was a reservation in favour of S.C./S.T., that was made while the Constitution came into effect.

(25) At this stage, it was submitted by Mr. Thakur that this court has only to see whether as today when the Court is ceased of the matter, there is anything wrong with the statute which is hit by any provision of the Constitution. If the classification is held to be valid today, the statute cannot be struck down only because at some future stage of the history, a classification is likely to cease to be relevant or permissible under the Constitution.

(26) So far as Gram Kutchery is concerned, Mr. Thakur relied on various sections of the Panchayat Act i.e. Sections 88 to 92 and onwards. It was submitted that the significant digression from the ordinary system of adjudication of disputes between adversaries is the provision that the Panches, Sarpanch and Upsarpanch of the Gram Kutchery instead of being appointed, have to be elected by electors of the Panchayat area. The other departure is that the rules of evidence contained in the Evidence Act are not strictly binding on the Gram Kutchery. Creation or Constitution of a justice dispensing body by means of election based on the adult franchise in a Panchayat area is in any way not abhorable or repulsive to either the basic feature of the Constitution or for the matter any part of the Constitution. According to him, there is nothing which can be said to be wrong to have an elected body at the village level for dispensing justice in regard to petty matters.Referring to Bihar Panchayat Raj Act, 1947, it was pointed out that the judicial powers both criminal and civil were conferred upon the Gram Kutchery even under the 1947 Panchayat Act. By Bihar Panchayat Raj Act, 1993, it has only enlarged the jurisdiction of Gram Kutchery, but the same is with additional safeguards against injustice and arbitrariness.So far as power of the State to constitute such Gram Kutchery, while it was accepted that such power is not vested under Art. 243D of the Constitution, but it was contended that in absence of any prohibition laid down under any law, it is always open to the Respondent-State to constitute a court or forum to discharge judicial function. According to him, dispensation of justice at the village level to the respectable of the village has been age-old system which has put the test of time. Reliance was also placed on Art. 372 of Constitution and it was submitted that Bihar Panchayat Raj Act, 1947 was originally saved by Art. 372, subject to other provisions of Constitution. According to the counsel, Chapter VI of Constitution relates to Subordinate Courts, Art. 233 relates to appointment of District Judges and the said Article is not in conflict with either the provisions of the Bihar Panchayat Raj Act, 1947 or those of 1993 Panchayat Act. It was contended that Art. 233A provides for appointment in judicial service, but the same has got nothing to do with the impugned Panchayat Act of 1993. According to him, while the provisions of Art. 234 have to be complied with if the appointment is made to Judicial Service, but if on the basis of experience of centuries, adjudicatory Institutions are developed, at grass-root level on the basis of experience there is nothing in the Constitution which prohibits, nor can it be said that mere fact that the elected body is granted powers (Civil and Criminal) for settlement of disputes, the provisions of Art. 234 stood contravened. In the scheme, nothing which can be said to be inconsistent with other provisions like Art. 235 or any other provision of the Constitution. He also placed reliance on the case reported in AIR 1964 Madh Pra 239 (Para 10 thereof), and thereby submitted that the challenge made by the petitioners deserves to be dismissed.

(27) From the aforesaid argument of both sides, the following questions emerge for determination in the present case:(i) The question relating to meaning of expression Backward class, as stipulated under clause (6) of Art. 243D of Constitution;(ii) The question relating to the mode of identification of Backward class, as stipulated under clause (6) of Article 243D of Constitution;(iii) The question relating to Constitutional validity of reservation in the matter of Panchayat election;(iv) The question relating to determination of permissible limit, if reservation is permissible in Panchayat election;(v) The question relating to constitutional validity of Article 243D of Constitution or any part thereto;(vi) The question relating to validity of Constitution of Gram Kutchery (village Court) by way of election and;(vii) The question relating to validity of Bihar Panchayat Raj Act, 1993 or any particular provision thereto.

(28) Before giving my finding, it is desirable to take into note the observations of Honble Khanna, J. as made in Kesavananda Bhartis case AIR 1973 SC 1401 :"That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, the judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. "The aforesaid observation, I have taken into note coupled with the fact that the matter involved in the present case is not only of academic interest but is also extremely delicate and sensitive, social and political, as it represents complex problems of Indian society.(i) The question relating to meaning of expression Backward class, as stipulated under clause (6) of Article 243D of Constitution:The definition of expression Backward class for the purpose of Articles 15(4) and 16(4) of the Constitution now stands settled. In Balajis case (AIR 1963 SC 649 ), the Supreme Court while dealing with the question, observed that it may not be irrelevant to consider the caste of a group of citizens for the purpose of determination of expression Backward class. But it took the view that the classification of Backward class of citizens based solely on the caste of citizens, may not always be logical and may, perhaps contain vice of perpetuating the caste themselves. Social backwardness is one of the ultimate analysis, the result of poverty to a very large extent. It further held that if caste is taken as themselves as the sole basis for determination of social backwardness of a group of citizens, the test may break down in relation to many sections of Indian society, like Muslims, Christians and Jains. It is for the said reason, the expression socially and educationally backwardness was made as one of the predominant factor coupled with the caste of citizens, for the purpose of determination of Backward class.In P. Rajendran (AIR 1968 SC 1012 ), the Supreme Court held that a caste is also a class of citizens. If the caste as a whole is socially and educationally backward, reservation can be made in favour of such caste. But it was taken into note that the caste cannot be the sole consideration for the purpose of determination of class. The aforesaid principle was reiterated by Supreme Court in Periakaruppan AIR 1971 SC 2303 and subsequent decisions."Social hierarchy and economic position exhibit an indisputable mutuality. The lower the caste, the poorer its member. The poorer the members of a caste, the lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power wielded by an individual or class in rural society. Social status and economic power are so woven and fused into caste system in Indian rural society that one may without hesitation, say that if poverty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a persons caste.Finally the matter was set at rest by Supreme Court in Indra Sawhneys case AIR 1993 SC 477 , by majority, as quoted hereunder:

"A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Art.16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purpose of Art. 16(4)."

(29) So far as expression of Backward class, as is there under clause (6) of Art. 243D of Constitution is concerned, it is much more wider. Though certain limitations have been prescribed under Arts. 15(4) and 16(4) of Constitution, like socially and educationally backwardness, there is no such limitation prescribed with respect to the expression Backward Class under Clause (6) of Art. 243D. It is well within the domain of the legislature to determine as to who is the Backward class and the caste can be one of the factor for such determination. The expression Backward class as accepted by the Supreme Court for the purpose of Articles 15(4) and 16(4) of Constitution can well be made applicable under clause (6) of Art. 243D of Constitution, subject to the conditions, as mentioned below.(ii) The question relating to the mode of identification of Backward class, as stipulated under clause (6) of Art. 243D of Constitution:In Indra Sawhneys case, AIR 1993 SC 477 , the majority view of the Supreme Court is, as follows:

"We do not mean to suggest - we may reiterate that the procedure indicated hereinabove is the only procedure or method/ approach to be adopted. Indeed, there is no such thing as a standard or model procedure/approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate and so long as the approach adopted by it is fair and adequate, the Court has no say in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission/ Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot be that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and / or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward if it is found in any other group, section or class, they too can be treated as backward. "

(30) From the aforesaid finding, it will clear that it is the authority who is to identify Backward class, is also to determine as to what will be the factor(s). For the purpose of identification of Backward class, certain guidelines have been given by Supreme Court in Indra Sawhney, AIR 1993 SC 477 . But while giving such guidelines, it has been held that crimy layer is to be excluded from the purview of Backward class, while making such identification. So far as the present case is concerned, as it relates to Panchayat election, a little deviation is to be made. In the matter of identification of Backward class, for the purpose of clause (6) to Art. 243D, no person can be eliminated from Backward class on the ground of crimy layer. One of the major determining factor will be as to whether particular Backward caste and/ or group of people lacks representation in political field and thereby lack political power.In Indra Sawhney, AIR 1993 SC 477 , Honble Sawant, J. observed:"To accept that after the inauguration of the Constitution and the introduction of adult franchise, there has been a change in the administrative power-balance is to be unrealistic to the point of being gullible. Undoubtedly, the lower castes and classes who constitute the overwhelming majority of no less than 75% of the population have secured for the first time in the history of this country, an advantage in terms of political leverage on account of their voting strength. We do see today that the political executive is not only fairly representative of the lower classes but many times dominantly so. But that is on account of the voting power and not on account of social, educational or economic advancement by them."In the present case, the petitioners have stated that many of the Backward castes, who have been declared to be Backward class under Scheduled-I of Panchayat Act, 1993, they are already represented much excess to the tune of 50-60% in the Panchayats of Bihar.The petitioners have clearly stated that in the last Panchayat election in Bihar out of 11,378 seats of Mukhiyas, more than 5000 seats are being held by dominant Backward castes; like Yadavas, Kurmis and Koeris, but in spite of the same, they have been included as Backward class under Schedule I to the aforesaid Act. This fact has not been denied by the Respondent-State of Bihar.The Book which has been produced by the petitioners, namely, Bihar May Chunao Jati, Booth Lut Aur Hinsa, edited by SHRIKANT and published by Sikha Prakashan, Shri Krishna Puri, Patna therein details relating to seats held by different castes since 1967 Election in the State of Bihar have been given. Therein, while seats secured by different Backward castes and forward castes in Bihar Assembly election have been shown bifurcation on the basis of castes, in securing such seats in Bihar Assembly election, have also been shown therein.The following data show some of the features relating to election of Backward castes, Scheduled Castes and Scheduled Tribes and other classes in Assembly elections, so far it relates to the State of Bihar:In number of seats held in Bihar Assemblyfrom amongst Higher castes andBackward castespersons YearNumber of Legislators from forward castesNumber of Legislators from forward Backward castes 1967133821969122831985118881990105114 Percentage of seats secured in Assembly YearForward castesBackward castes 196741.8226.10196938.3629.55198536.3333.33199032.8134.74 M.L.As. of different castes in Bihar Assembly elected out of 1990 election. Caste TotalPercentage Brahman27 8.36Bhumihar3410.52Rajput4112.69Kayasth3 0.93Yadav6319.50S.C.4814.86S.T.29 8.98Muslim20 6.19Kurmi18 5.57Koeri12 3.71Sudi Kalwar10 3.09Bania3 0.93Mallah2 0.62Gangaut1 0.31Bengali3 0.93 Caste TotalPercentage Marwari3 0.31Nonia1 0.31Kahar1 0.31Kharwar1 0.31Teli2 0.62Punjabi1 0.31 Total 323 seatsI have quoted the observation of the Supreme Court and the chart aforesaid only to show that even amongst Backward castes, there may be certain castes, who are dominant in political field and holding much political power at present. As the main object here, as urged by the counsel for the respondents, is to provide political power in favour of Backward class persons, such Backward castes, which are dominating in the political field cannot be included, within the meaning of Backward class, for the purpose of reservation, as laid down under clause (6) of Art. 243D of Constitution. If any particular Backward caste in any State is at present adequately represented and holding adequate political power (even in the Assembly), such Backward castes cannot be treated as Backward class for the purpose of clause (6) of Art. 243D of Constitution.It has already been observed by majority decision in Indra Sawhneys case, AIR 1993 SC 477 , that there should be a body composed of experts in the field, both official and nonofficial, which should be vested with necessary powers to make a proper and effective enquiry to find out as to which caste and / or group of people is to be included within the meaning of Backward class . For the purpose of clause (6) of Article 243D of Constitution, such body while determining Backward class will take into note the observations, made above.(iii) The question relating to Constitutional validity of reservation in the matter of Pachayat election:To determine as to whether reservation can be made in the matter of Panchayat election or not, various factors are to be taken into note. It is well settled that the principle of reservation is a special transitional provision, mainly meant for weaker sections. The preamble of Constitution while guaranteed justice, political, social, the principle of distributive justice cannot be ignored. It is also to be seen as to in making such provision of reservation, in the matter of Panchayat election, whether the basic structure of constitution is being destroyed or not. The principle of equality, including equality in the matter of adult franchise, whether still remains intact, is also to be tested. While it is to be determined as to whether there is an intelligible differentia or not while making two classes, it is also to be seen whether the same has got any nexus with the object sought to be achieved. Further it is to be tested as to whether the harmony between the fundamental rights and directive principles are being maintained or not. One of the test is as to whether the citizens have any right to vote and / or right to seek election, and whether such right stands curtailed by virtue of such reservation or not.Reservation as stipulated under different constitutional provisions has been held to be special provision, which is now a settled law. Certain benefits like reservation can be granted in favour of weaker sections, detriment to the rest of the citizens, is a settled principle. Justice, political and social are enshrined in the preamble of the Constitution of India. The definition political, though laid down in different manner, one of such definition as laid down in corpus juris is :". . . . . . . In a generic sense, political means of or pertaining to the exercise of the rights and privilege or the influence by which individuals of a State seek to, determine or control its public policy. ... . . . "In the aforesaid background, to do political justice, it is open to the legislature to give rights and privileges in favour of one or other class of citizens so that they may determine and control their public policy, by sharing power with the rest of the citizens.While dealing social justice, the Supreme Court in Sadhu Rams case, AIR 1984 SC 1471 , held, as follows (at p. 1478 of AIR) :"There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the court would lean in favour of the weaker section of the society. Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. "How social justice is to be made in favour of a weaker section, has been dealt by the Supreme Court in Sadhu Rams case, AIR 1984 SC 1471 . It was held that the convenience of the situation and the need for adjusting the rights of a large number of people without deprivation of any accrued right of anybody would be justice, according to law. A meaningful definition of the rule of law must be based on the realities of contemporary societies.Therefore, while delivering legal justice, realities of contemporary justice are to be looked into, coupled with the social justice.The weaker sections, which includes S.C. / S.T. and Backward Class, the principle of distributive justice can be made applicable in their cases, as already held by the Supreme Court in Lingappa Pochannas case, AIR 1985 SC 389 .According to the Supreme Court, in the said case, our Constitution permits and directs the State to administer distributive justice.In the language of the Supreme Court in Lingappa Pochannas case (AIR 1985 SC 389 ), the distributive justice has been defined, as under (at p. 398 of AIR) :"The present legislation is a typical illustration of the concept of distributive justice, as modern jurisprudents know it. Legislators, Judges and Administrators are now familiar with the concept of distributive justice. Our Constitution permits and even directs the State to administer what may be termed distributive justice. The concept of distributive justice in the sphere of law-making connotes, inter alia,

the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle : From each according to his capacity, to each according to his needs. Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargaining should be restored their property. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements."The aforesaid decisions clearly show that the Legislators have full power to come out with special provision for upliftment of weaker section. If there are two unequals, to provide justice; political and social, the policy of distributive justice can be resorted to and thereby reservation can be made even for the purpose of Panchayat election to provide political powers to a class of persons, not adequately holding such political power. For the purpose of achieving such object, if reservation is made in Panchayat election in favour of one or other weaker sections, including S.C./ S.T. and / or Backward Class, I do not find any infirmity in the same.To find out as to whether in making such reservation, it changes the basic structure of Constitution, and affects the principle of equality as guaranteed under Art. 14 of Constitution or not, it is to be looked into as to what is the intelligible differentia that has been made between the two classes of citizens, and whether the same has got nexus with the object sought to be achieved.The basic structure of the Constitution has been laid down by Supreme Court in Kesavananda Bhartis. case, AIR 1973 SC 1461 . The majority decision reads, as follows :"....... 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.The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed."So far as democracy is concerned, the Supreme Court in Indra Sawhneys case, AIR 1993 SC 477 , held that the democracy does not mean mere election, it also means equal and effective participation in shaping the destiny of the country. If majority of population is denied share in actual power, there exists no real democracy. It is harsh reality. Nobody can run away from it nor it can be ignored. Effective workable remedial measure is to be taken.In the language of the Supreme Court, the directive principle imposes an obligation on the State to take positive action for creating socio-economic condition in which there will be a egalitarian socio order with social and economic justice to all, so that the individual liberty will become cherished value and the dignity of the individual living reality, not only for a few privileged persons, but for entire people of the country. It held that the directive principles enjoy a very high place in the constitutional scheme and it is only the framework of socio-economic structure envisaged in the directive principles that the fundamental rights are intended to operate, so that the same can become meaningful and significant for millions of poor and deprived people. This will be evident from the finding in Minerva Mills Ltd., AIR 1980 SC 1789 .

(31) From the aforesaid finding of the Supreme Court, it will be evident that if benefit of reservation is given in the matter of Panchayat election, in favour of one or other weaker sections, lacking political power, it neither affects the basic structure of the Constitution, nor it destroys the principle of democracy and / or fundamental rights of any individual. The principle of distributive justice, is also applicable in such case, to do justice - political and social - in favour of any one or other weaker sections like Scheduled Castes, Scheduled Tribes or Backward class. While doing so, it does not destroy the harmony between the fundamental rights and directive principles, as enshrined under Part-III and IV of Constitution.So far as right to vote and / or right to seek election is concerned, the contention of the petitioners cannot be accepted. There is no specific provision laid down under the Constitution vesting any right to any individual to seek election. There are provisions like Arts. 325 and 326, which create right in favour of a citizen in the matter of adult suffrage for the purpose of Legislative Assembly / Parliament. But while the same relates to right to vote, it does not confer any right to any citizen to seek election.The Supreme Court in N. P. Ponnuswami, AIR 1952 SC 64 , held (at p. 71 of AIR) :"The points which emerge from this decision may be stated as follows : (1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. (2) Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it."Similar view was taken by the Supreme Court in Mohan Lal Tripathy, AIR 1993 SC 2042 , as quoted hereunder :"Democracy is a concept, a political philosophy an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes, or a political right, or privilege and not a natural, absolute or vested right. Concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised."Subsequently, similar view has been reiterated by the Supreme Court in other cases, including in Ramakant Pandey, AIR 1993 SC 1766 .

(32) In the present case, neither the provisions of Art. 243D, nor the Panchayat Act, 1993 debars any citizen to take part in election, so far as their right to vote is concerned.So far as right to seek election is concerned, as shown above, according to the decision of the Supreme Court, a citizen does not accrue such right under the Constitution.So far as Full Bench decision of this Court in Janardan Paswan, AIR 1988 Patna 75, is concerned, as cited by the petitioners, though the Full Bench held that a citizen has electoral right of franchise, but it has not made clear that such right of franchise includes, right to seek election or not. In any case, the Supreme Court judgment being clear, the petitioners cannot claim any right to seek election.

(33) For the reasons stated above, I hold that the Legislators are competent to lay down the principles of reservation in the matter of Panchayat election and the same is intra vires.(iv) The question relating to determination of permissible limit, if reservation is permissible in Panchayat election :In Balaji, AIR 1963 SC 649 , while the Constitution Bench rejected the argument that in absence of limitation contained in Art. 15(4), no limitation can be prescribed by the Court on the extent of reservation, it observed that such provision of Constitution being a "special provision", must be within reasonable limits. The Court observed that (at pp. 662 and 663 of AIR) :

". . . . . . . It would be extremely unreasonable to assume that in enacting Art.15(4), the Parliament intended to provide that where the advancement of the Backward Class or Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored . . . . . . . The special provision contemplated by Art.15(4), like reservation for the post and appointments contemplated by Art. 16(4) must be within reasonable limit .. . .. .. Speaking generally and in a broad way, special provision should be less than 50 per cent. how much less than 50 per cent. would depend upon the relevant prevailing circumstances in each case."

In Devdasan, AIR 1964 SC 179 , similar view was taken. Subsequently, the matter was considered by the Supreme Court at different stages. Though some other view was taken, in the meantime in Thomas, AIR 1976 SC 490 , but the matter was finally set at rest in Indra Sawhney, AIR 1993 SC 477 .While setting the matter at rest, B. P. Jeevan Reddy, J. speaking on behalf of majority took into notice the speech of Dr. Ambedkar, with respect to limitation in the matter of reservation. Taking into note the aforesaid speech of Dr. Ambedkar in the Assembly, the Supreme Court observed, as follows :

"It needs no emphasis to say that the principal aim of Arts. 14 and 16 is equality and equality of opportunity and that Cl. (4) of Art. l6 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 Art. 14. The provision under Art.16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in clause (1) of Art. l6 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". 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 reservation contemplated in clause (4) of Art. 16 should not exceed 50%.While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary 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 cause made out."Finally in the aforesaid case, majority of the Judges came to the following conclusion :"The reservation contemplated in clause (4) of Art. 16 should not exceed 50% while 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary 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 the conditions peculiar to and characteristic of 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."

From the various decisions of the Supreme Court, it is manifest and clear that though for the purpose of doing social justice, in favour of weaker sections, reservation can be made, but in no case, such reservation can exceed 50% limit. This principle is also equally applicable, so far as Art. 243D and / or Panchayat Act, 1993 is concerned, as in such a case, the principle for making intelligible differentia between the two classes and the object sought to be achieved practically remains the same i.e. to administer justice, political and social, in favour of weaker sections.So far as reservation dependent on proportionate representation in Panchayat election, as stipulated under clauses (1) to (4) of Art. 243D is concerned, I do not find any illegality in the same.The Supreme Court in Indra Sawhney, AIR 1993 SC 477 , by its majority decision held, as follows :

"We must, however, point out that Cl. (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. The principle of proportionate representation is accepted only in Arts. 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......."

The aforesaid finding of the Supreme Court goes to show that proportionate representation and adequate representation are not same. It further shows that the principle of proportionate reservation, limited for a period, by way of special provision is permissible.Admittedly, the total population of the Scheduled Castes and Scheduled Tribes in India is below 24%. In the aforesaid circumstances, even if reservation is made on the principle of proportionate representation, so far as Scheduled Castes and Scheduled Tribes are concerned, it will never exceed the 25%, much less 50% of the seats, as stated above.However, so far as one single unit seat is concerned, the matter would be different. Though the seats of elected members of Panchayats are not single unit seat, being consists of various seats (of Panches), the seat like Mukhiya of a Panchayat; Pramukh of a Samiti and Adhyaksh of a Zila Parishad are single unit seats.A Full Bench of this Court in Janardan Paswan, AIR 1988 Patna 75, held that reservation of the solitary post of Mukhiya in the self-contained unit of Panchayat amounts to 100% reservation of the said post and, thereby held that such reservation was not permissible. According to the said Full Bench :

"That even assuming entirely for the sake of argument that Article 15(1) is applicable (without in the least holding so), nevertheless the reservation of the solitary post of Mukhiya in the self-contained unit of a Panchayat exclusively for Scheduled Castes and Scheduled Tribes is patently excessive, unreasonable and violative of rules of equality."

I do not find any reason to differ with the same for the purpose of referring the matter to a larger Bench, when no reservation can exceed the limit of 50%. So, I also hold that the single unit posts like Mukhiya of a Panchayt; Pramukh of a Samiti and Adhyaksh of a Zila Parishad cannot be reserved.(v) The question relating to constitutional validity of Art. 243D of Constitution or any part thereto;To decide the aforesaid question, one must look into the provisions of Art. 243D, which is, as follows :

"Art. 243D(1) Seats shall be reserved for -(a) the Scheduled Castes; and(b) the Scheduled Tribes,in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayatas the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different Constituencies in Panchayat.(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.(3) Not less than one-third (including the number of seats reserved of women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different Constituencies in a Panchayat.(4) The offices of the Chairpersons in the Panchyat 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:Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayat at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayat at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayat at each level shall be reserved for women:Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.(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 the expiration of the period specified in Art. 334.(6) Nothing in this part that prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or office of Chairpersons in the Panchayats at any level in favour of Backward Classes of citizens."

So far as clause (1) to Art. 243D is concerned, it will be evident that the reservation in Panchayat election has been made in favour of Scheduled Castes and Scheduled Tribes persons, with respect to the seats of a Panchayat. Such reservation has been made on the principle of proportionate representation.As I have held that reservation can be made in the matter of Panchayat election in favour of Scheduled Castes and Scheduled Tribes persons and if such reservation is made on the principle of proportionate representation, the same will never exceed more than 25% (much less 50%). The clause (1) of Art. 243D of Constitution cannot be held to be unconstitutional. Apart from that clause (1) Art. 243 D having made for a limited period, as a special provision, being conterminous with Art. 334, it does not suffer from any vice.So far as clause (2) of Art. 243D of Constitution is concerned, it will be evident that 1/3rd of total number of seats reserved under clause (1), has been made reserved in favour of women belonging to Scheduled Caste or Scheduled Tribe, as the case may be. As it does not violate any of the provisions of the Constitution, much less the basic structure, clause (2) of Art. 243 is completely legal and constitutional.So far as clause (3) of Art. 243D is concerned, under the said provision, 1/ 3rd seats have been made reserved in favour of women in general. Such reservation also includes the number of seats reserved in favour of Scheduled Castes and Scheduled Tribes. Women being weaker section, I find no illegality in making such reservation in favour of women.However, it will be evident from clause (3) to said Art. 243D that no limitation has been prescribed therein. One of the question will arise as to when the reservation in favour of Scheduled Castes, Scheduled Tribes, including women belonging to the said castes, will come to an end (at present in January, 2000 A. D.), in terms with Art. 334 of Constitution, as laid down under clause (5) to Art. 243D, can such reservation with respect to women in general continue for an indefinite period. If it is held that no limitation having been prescribed under clause (3) to Art. 243D of Constitution, such reservation in favour of women will continue for an indefinite period, even though the same may not continue in favour of S.C. / S.T. and women category of the aforesaid class, then in that case, clause (3) to Art. 243D is to be held to be ultra vires.The Supreme Court in numerous decisions held and observed that the primary duty of the Court is to upheld the Constitution and the laws without fear or favour and, in doing so, the Court cannot allow any political ideology or economic theory which may have caught their fancy, to colour the decision.In the aforesaid circumstances, if clause (3) to Art. 243D of Constitution is to be upheld, then it is to be read that clause (3) to the said Art. 243D is also conterminous with that of Art. 334 of Constitution.At this stage, a question may arise as to whether this Court has got any jurisdiction to read something in between the lines of a Constitutional provision when no such specific provision has been laid down in that particular provision of the Constitution.According to me, clause (3) of Art. 243D cannot be read in isolation. It is to be read along with the rest of the provisions of the said Article.As a limitation has been prescribed in the matter of reservation in favour of women belonging to S.C. / S.T. such women (S.C./S.T.) being part and parcel of the reserved seats meant for women under clause (3) of Art. 243 D, it is to be held that such Art. 243D is conterminous with Art. 334 of Constitution.In this context, it may be taken into note that Art. 15(4) or Art.16(4) does not stipulate any limitation with respect to such reservation. But the Supreme Court to uphold the validity of such Arts. 15(4) and 16(4) of Constitution of India, read in between the lines and held that the limitation therein is maximum 50%.It is for the said reason, while holding that clause (3) of Art. 243D is conterminous with Art. 334 of the Constitution, I uphold the validity of the same.So far as clause (4) of Art. 243D of Constitution is concerned, it speaks of reservation in the office of Chairpersons in the Panchayats at the village or any other level in favour of S.C. / S.T. and women. In fact, it is an enabling provision, vesting power in favour of Legislature of a State to make reservation with respect of the offices of Chairpersons. I have already held that where the post / seat is a single unit post / seat, any reservation with respect to such single post will amount to 100% reservation and will be excessive and arbitrary. The same is not permissible. As clause (4) of Art. 243D speaks of the offices of the Chairpersons, it is clear that such reservation has been stipulated with respect to such posts, where the number is more than one. In the aforesaid background, I find that the clause (4) of Art. 243D is a valid piece of legislation.Clause (5) of Art. 243D does not speak of any reservation, but it limits the period of reservation up to a specific period, as laid down under Art. 334 of Constitution. This provision cannot be said to be ultra vires. On the other hand, by virtue of clause (5) to Art. 243D of Constitution, rest of the clauses of Art. 243D are being saved from being ultra vires.So far as clause (6) to Art. 243D of Constitution is concerned, it cannot be held to be ultra vires. In fact, it is the enabling provision by which the Legislature of a State has been vested with the powers to make reservation in favour of Backward Class citizens. It is the Legislature who will have to prescribe the criteria, reservation being special provision and transitory phenomena. While making such provision relating to reservation in favour of Backward Class, it is for the Legislature of the State to prescribe the period of expiry of such reservation. As the period of expiry reservation, with respect to Scheduled Castes and Scheduled Tribes citizens will come to an end in accordance with Art. 334 of Constitution of India, such period of expiry of reservation, so far as Backward Class is concerned, can be made either lesser than the period, as stipulated under Art. 334 of Constitution or conterminous, but in any case, the same cannot exceed the period as laid down under Art. 334 of Constitution, which is applicable in the case of Scheduled Caste and Scheduled Tribe citizens.However, in absence of such prescribed period of expiry of reservation, clause (6) of Art. 243D of Constitution cannot be held to be ultra vires. As I have held that reservation in the matter of Panchayat election can be made in favour of weaker sections like Backward Classes, I find no unconstitutionality with the provisions of Clause (6) to Art. 243D of Constitution.(vi) The question relating to validity of Constitution of Gram Kutchery (Village Court) by way of election:The contention of the petitioners is that the Respondent-State has not been delegated with any power under Art. 243D of Constitution to constitute a Gram Kutchery, though seems to be attractive at the first instance but, according to me, the same is misconceived.The preamble of Panchayat Act, 1993 shows that the said Act has been promulgamated under Art. 243D of Constitution of India. Thereby, it appears as if the Part VI of the said Act, 1993 has been created under Art. 243D of Constitution. Admittedly, Art. 243D of Constitution does not vest any power with the State to constitute a Gram Kutchery. However, according to me, wrong citation of provision of law in the preamble portion will not make the said provision illegal, if such power is otherwise vested.It is a settled law that the Legislature of a State has got inherent power to constitute a Court of law, there being no such prohibition. Such being the position, even if wrong citation of provision has been made in the preamble portion of Panchayat Act, 1993, the Constitution of Gram Kutchery, as made under Part VI of Panchayat Act, 1993 cannot be declared to be illegal.In State of U. P. v. Pradhan Sangh Kshettra Samittee, AIR 1995 SC 1512 , the Supreme Court held, as follows (at p. 1531 of AIR):

"The last contention of the respondents was that the Act makes provision for the nyaya panchayats whereas the amended provisions of the Constitution do not direct the organisation of such panchayats and, therefore, the Act is ultra vires the Constitution. The contention is only to be stated to be rejected. Admittedly the basis of the organisation of the nyaya panchayats under the Act is different from the basis of the organisation of the gram panchayats, and the functions of the two also differ. The nyaya panchayats are in addition to the gram panchayats. The Constitution does not prohibit the establishment of nyaya panchayats. On the other hand, the organisation of the nyaya panchayats will be in promotion of the directive principles contained in Art. 39A of the Constitution. It is, therefore , difficult to appreciate this contention."The aforesaid finding of the Supreme Court also goes in favour of the Respondents.So far as appointment of members of Gram Panchayat, by way of election is concerned, I find no illegality in the same. It is for the Legislature to decide as to what will be the mode of appointment. If the election is made one of the mode of appointment, that will not render the provision as unconstitutional.(vii) The question relating to validity of Bihar Panchayat Raj Act, 1993 or any particular provision thereto:The following provisions of the Act are under challenge namely, Sections 13, 15, 36, 38, 63, 65, 83, 89 and 91, to the extent it relate to reservation. It is for the said reason, I am discussing only the relevant portion of the aforesaid sections, to the extent it stipulate reservation in favour of one or other class.Sub-section (1) of section 13:"Reservation of seats:- (1) In every Gram Panchayat seats shall be reserved for:-(a) Scheduled Castes;(b) Scheduled Tribes; and(c) 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 panchayat as the population of the Scheduled Castes / Scheduled Tribes / or of the Backward Classes bears to the total population of that area and such seats shall be allotted by rotation to different constituencies in a Gram Panchayat in such manner as may be prescribed by the State Election Commission."

From the plain reading of the aforesaid provision, it will be evident that the seats of Panchayats have been reserved in favour of Scheduled Castes, Scheduled Tribes and Backward Class of citizens, combining them together, on the principle of proportionate reservation.So far as Scheduled Castes and Scheduled Tribes are concerned, the Respondent-State are duty-bound to reserve seats in their favour on the basis of proportionate representation, as mandates under clause (1) of Art. 243D of Constitution. So, no deviation can be made to that effect. It has already been held by me that the reservation in Panchayat election cannot exceed the limit of 50%. Thereby, it is only after reserving the seats in favour of Scheduled Castes and Scheduled Tribes persons on the basis of proportionate representation, out of 50%, whatever the rest percentage of reserved seats will remain, it is only against such seats, reservation can be made in favour of Backward Class. For example, if on the principle of proportionate representation, the reservation in favour of Scheduled Caste and Scheduled Tribe is made in a particular area that of 20%, then maximum up to 30% of seats can be reserved in favour of Backward Class. In such a situation, the principle of proportionate representation with respect to Backward class may not be followed.Admittedly, in the State of Bihar, the population of Scheduled Caste and Scheduled Tribe is about 20 to 24% in different areas. On the other hand, the population of Backward Class in the State of Bihar varies from 50 to 70%. The total population of Scheduled Castes and Tribes and Backward Class, if taken together in the State of Bihar, it will be always more than 75%, almost in all areas.In the aforesaid circumstances, if combined reservation is made in favour of Scheduled Castes, Scheduled Tribes and Backward Classes on the principle of proportionate representation, that will be as excessive as 75% and / or above, which is not permissible in the law. This fact also emerges from the relevant data given by petitioners in the writ petitions.As under sub-section (1) of Section 13, a combined reservation has been made in favour of Scheduled Castes, Scheduled Tribes and Backward classes, on the principle of proportionate representation and in the State of Bihar; as the same will be much excessive (much more than 50%), thereby arbitrary, this provision cannot be sustained in the eye of law. Accordingly, I hold that sub-section (1) of Section 13 of Panchayat Act, 1993 as ultra vires.Sub-section (7) of Section 15: The provision is quoted hereunder:

"15. Election of Mukhia and Up-Mukhia: (7) Reservation of Seats:- (i) For the post of Mukhia seats shall be reserved as follows: (a) scheduled castes; (b) Scheduled Tribes, and (c) Backward classes.In every Panchayat Samiti, seats shall be reserved for Scheduled Caste / Scheduled Tribe / Backward Classes for the posts of Mukhia and the number of seats so reserved shall bear as nearly as possible the same proportion to the total number of seats of Mukhia of the Panchayat Samiti as the population of the Scheduled Castes / Scheduled Tribes / Backward Classes bears to the proportion of the total population of that area and such seats shall be allotted by rotation to different constituencies for Mukhia of the Panchayat Samiti by the State Election Commission in the prescribed manner."

The aforesaid provision also suffers from the vices, as pointed out with respect to subsection (1) of Section 13. As the combined reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes, has been made on the principle of proportionate representation, which will always exceed the maximum limit of 50% this clause (7) also suffers from such vices of excessive reservation.Apart from the same, under clause (4) to Art. 243D, the reservation to the post of Chairpersons is to be made on the principle of proportionate population ofthe State whereas sub-section 7 of Section 15 stipulates such reservation on the principle of proportionate population of the area, thereby it is evident that clause (7) of Section 15 is also violative of clause (4) of Art. 243D of Constitution.Apart from the same, I have already held that the solitary post like Mukhia of a Panchayat, Pramukh of a Panchayat Samiti and Adhyaksha of a Zilla Parishad cannot be reserved, as the same will amount to 100% reservation. It is for the aforesaid reasons, I hold that sub-section (7) of Section 15 of Panchayat Act, 1993 as ultra vires.Sub-section (1) of Section 36: The provision is quoted hereunder:

"36. Reservation of Seats:- (1) In every Panchayat Samiti seats shall be reserved for- (a) Scheduled Castes; (b) Scheduled Tribes; and (c) 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 Panchayat Samiti as the population of the Scheduled Castes / Scheduled Tribes or of the Backward Classes bears to the total population of the area and such seats shall be allotted by rotation to different constituencies in a Panchayat Samiti in such manner, as may be prescribed by the State Election Commission."In this case also, a combined reservation has been made in favour of Scheduled Castes, Scheduled Tribes and Backward Classes on the principle of proportionate representation.As discussed above, combined reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes, on the principle of proportionate representation in the State of Bihar and its areas will be always excessive, as it will amount to more than 50% reservation, I also hold that the sub-section (1) Section 36 as unconstitutional.Sub-section (2) (a) of Section 38: The aforesaid section is quoted hereunder: "

(2) There shall be reservation for the post of Pramukh in the following manner: (a) Such number of offices of Pramukh of Panchayat Samities in the district shall be reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes bearing as nearly as may be the same proportion to the total number of offices in the district, as the population of the Scheduled Castes / Scheduled Tribes or the Backward Classes in the district bears to the total population of that district;"From the plain reading of sub-section (2)(a) of Section 38, it is manifest that the reservation of the post of Pramukh of Panchayat Samities in the district has been made dependent on total proportionate population of Scheduled Castes, Scheduled Tribes and Backward Classes. As such proportionate reservation in favour of all the aforesaid classes will exceed much more than 75%, so far as State of Bihar and its different areas are concerned, the same being much excess to 50% reservation, is arbitrary and I declare the said sub-section (2)(a) of Section 38 as unconstitutional.Apart from the same, I have already held that the solitary post of Ptamukh of Panchayat Samiti cannot be reserved, as the same will amount to 100% reservation.In the aforesaid background, I hold that sub-section (2)(a) of Section 38 as unconstitutional.Sub-section (1) of Section 63: The aforesaid provision reads, as follows:

" 63. Reservation:- (1) In every Zila Parishad seats shall be reserved for- (a) Scheduled Castes; (b) Scheduled Tribes; and (c) 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 Zila Parishad, as the population of the Scheduled Castes, Scheduled Tribes or of the Backward Classes in that Zila Parishad area bears to the total population of that area and such seats shall be allotted by rotation to different constituencies in a Zila Parishad in such manner as may be prescribed."It will be evident from the aforesaid subsection (1) of Section 63 that the seats in Zila Parishad has been reserved in favour of Scheduled Castes, Scheduled Tribes and Backward Class dependent on the total population of the above castes of Scheduled Castes, Scheduled Tribes and Backward Classes. As the total proportionate reservation in favour of aforesaid classes, in the State of Bihar and its areas will be much more than 60 to 75% the same being much excess to 50% of the seats, the same is arbitrary. Thereby, I declare the said sub-section (1) of Section 63 as unconstitutional.Sub-section (2) of Section 65:Sub-section (2)(a) of Section 65 reads, as follows:"

65. Election of Adhyaksha and Up-Adhyaksha:(2) There shall be reservation for the post of Adhyaksha in the following manner:-(a) Such number of offices of Adhyaksha of Zila Parishads in the State shall be reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes bearing as nearly as may be the same proportion to the total number of offices in the State as the population of the Scheduled Castes / Scheduled Tribes or the Backward Classes in the State bears to the total population of the State."

In this case also the combined proportionate reservation in favour of S.C. S.T. and Backward Class persons will exceed the limit of 50%, in the State of Bihar. The same being excessive and arbitrary, I declare the aforesaid provision as ultra vires.Apart from that I have held that the post of Adhyaksha of a Zila Parishad being single unit post, no reservation can be made with respect to such post, the same will amount to 100% reservation, which is completely arbitrary. It is for the aforesaid reason, I declare sub-section (2)(a) of Section 65 as unconstitutional.Section 88:Section 88 reads, as follows:"88. Constitution of Gram Katchery and election of Sarpanch, Up-Sarpanch and Panches: (1) Every Gram Panchayat shall for the purposes of discharging the judicial functions imposed upon it by or under this Act, establish a Gram Katchery consisting of-(a) A Sarpanch of the Gram Katchahry under the provisions of this Act;(b) Such number of directly elected Panches as may be notified from time to time by the District Magistrate in the District Gazette and each panch representing as nearly as 500 population of the Panchayat area. Its territorial constituency will be the same as those of the members of the Gram Panchayat.(2) Each territorial constituency shall directly elect one Panch in the manner prescribed under the provisions of this Act.(3) Every Gram Katchery constituted under the provisions of this section shall be published in the District Gazette and shall come into force from the date fixed for its first meeting."It will be evident from Chapter VI of Panchayat Act, 1993 that the function of the Gram Kutchery is judicial function. The members of such Gram Kutcheries are vested with judicial power to decide certain civil matters in terms with provisions of C.P.C. as well as certain criminal offences in terms with provisions of Cr. P.C.Plain reading of different provisions of Chapter-VI clearly shows that only qualified persons, having legal knowledge, can deliver justice in favour of the villagers. Even powers of certain Courts, including Civil Courts have been curtailed to some extent, which are to be tried by the Gram Kutchery. Though it is open to the State to constitute Gram Kutchery as an alternative forum to that of Civil Court but, in that case, such alternative forum should be equally efficacious and members should be equally qualified like the Judicial Officers of the Civil Court.As no qualification has been laid down under the Panchayat Act, 1993 for appointment / election to the post of members of a Gram Kutchery, the provisions of Section 88 is held to be arbitrary. Accordingly, I hold the said provisions of Section 88 of Panchayat Act, 1993 as unconstitutional.Sub-section (1) of Section 89;Sub-section (5)(i) of Section 91;andSection 103:The aforesaid provisions of Panchayat Act, 1993 relate to reservation of seats in Gram Kutchery as well as jurisdiction of Gram Kutchery to try certain criminal offences. As I have held that the Constitution of Gram Kutchery itself under Chapter VI of Panchayat Act, 1993 as unconstitutional. As the rest of the provisions of sub-section (1) of Section 89; sub-section (5)(i) of Section 91 and Section 103, cannot be given effect, hence there needs no further discussion with respect to the aforesaid provisions.Schedule I of Panchayat Act, 1993:The aforesaid Scheduled-I includes 128 Backward Castes of the State of Bihar. As the Scheduled-I had been laid down by the State without any verification as to which Backward Caste is politically depressed class, and is not adequately represented in the political field of the state of Bihar, Scheduled-I of the Act cannot be acted upon for the purpose of Panchayat election.CONCLUSION:In the aforesaid background, I hold and summarise the answers to the various questions dealt above, as follows:(i) and (ii): The expression Backward Class, for the purpose of clause (6) of Art. 243D of Constitution may include Backward Caste. But, for the purpose of such inclusion of Backward Caste, though caste may be one of the dominant factor, other necessary factors are also to be taken into account.It is for the said reason, for the purpose of determination of Backward Class, apart from castes, it is to be seen as to whether any of such Backward Caste(s) is / are lacking power in the political field, and hereby denied justice -- political and social or not. The Backward castes, who are dominating the political field, including the seats available in the State Assemblies or Panchayat and are adequately represented, they are to be carved out from the definition of Backward Class, for the purpose of clause (6) to Art. 243D. The rest who will be declared as Backward Class, from them no elimination can be made on the ground of creamy layer, for the purpose of aforesaid provision of Constitution.(iii) and (iv) : Reservation can be made in the matter of Panchayat election in favour of Scheduled Castes, Scheduled Tribes and Backward Classes. However, limit of such reservation cannot exceed 50% of the total seats. No reservation can be made against the solitary seats like Mukhiya of a Panchayat, Pramukh of a Panchayat Samiti and Adhyaksha of a Zila Parishad.(v) : Article 243-D of Constitution, including Clause (6) thereto, is a valid piece of legislation and is intra vires.(vi) : Constitution of Gram Kutchery under Section 88 of Chapter-VI of Panchayat Act, 1993 is arbitrary and unconstitutional, no qualification being laid down for the post of members of Gram Kutchery, who will try certain civil matters and certain criminal offences.(vii) : The provisions of reservation made under sub-section (1) of Section 13; subsection (7) (i) of Section 15; sub-section (1) of Section 36; sub-section (2) (a) of Section 38; sub-section (1) of Section 63; sub-section (2) (a) of Section 65 of Bihar Panchayat Act, 1993, being much excessive and as the same will exceed the limit of 50% reservation, the aforesaid provisions are declared unconstitutional.Schedule-I of Panchayat Act, 1993 :Schedule-I includes 128 Backward Castes of the State of Bihar. As the Schedule-I has been laid down without any verification as to which Backward caste is politically depressed class and is not adequately represented in the political field, Schedule-I of the Act cannot be acted upon, for the purpose of Panchayat election.

(34) The writ petitions are disposed of with the aforementioned observations and directions.

(35) Finally, the Court appreciates the valuable assistance given by the learned counsel, namely, M / s. Tara Kant Jha; Binod Kumar Kanth ; Chandrashekhar; Shiv Kirti Singh; P. K. Shahi; Banwari Sharma; Pramod Kumar Sinha and others.The Court also appreciates the valuable time and assistance given by Mr. D. D. Thakur, Senior Advocate of the Supreme Court, duly assisted by M /s. Rameshwar Prasad No. 2, Advocate General, Ganga Prasad Roy, Addl. Advocate General-III, D. N. Yadav, Government Advocate, D. N. Singh, Government Pleader No. IV and V. N. Sinha, Government Pleader No. IX.The written argument submitted by the parties also helped the Court for coming to a definite conclusion.35A. D. P. WADHWA, C. J. :-. Constitution is the sacred document. Framers of our Constitution suffered untold miseries, underwent imprisonment during freedom struggle and they understood the ethos of the public. It could not be said that they were unaware of the conditions existing at the time of framing of the Constitution or they lacked wisdom when they did not provide for reservation to the House of People and Legislative Assemblies of the States except for a limited period of only 10 years of coming into force of the Constitution (Articles 330 and 334). By subsequent amendments to the Constitution the period of 10 years has been extended to 50 years from the date of the commencement of the Constitution. Reservation is thus a temporary phase and is not a permanent or basic feature of the Constitution. Our Constitution of which Dr. B. R. Ambedkar was the architect envisages coherent and unified casteless and secular society. Caste like religion is anathema to our Constitution. It is a matter of common knowledge that today our society is suffering scourge of casteism. It was submitted that in the State of Bihar political parties did not count and it was the caste that mattered. If that is so, it is most unfortunate that after 50 years of independence there should exist such a state of affairs. India cannot have caste ridden society which is against the basic concept of the Constitution. When Mr. Thakur, learned counsel for the respondent, said that Seventy-third Constitution Amendment received all round support in Parliament from the political parties, it was retorted by others that it was on account of politics of vote. We, however, are not concerned as to what prevailed with the elected representatives to bring about seventy-third Constitution amendment. Our duty is only to see if such an amendment does offend the basic structure of the Constitution. What the Constitution envisages in India is a nation free of casteism and religious bigotry.The Constitution (Seventy-third) Amendment Act and the Bihar Panchayat Raj Act following that extend the reservation on the basis of caste even up to the level of Panchayats, but since these provisions are only up to the year 2000 and keeping in view the law laid down by the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 relating to reservation in appointments or posts in favour of Backward Classes of citizens, we have upheld the validity of the Constitution (Seventy-third) Amendment Act. The principle laid down in Indra Sawhneys case though applicable only in respect of reservation in appointments made under Article 16(4) holding that reservation should not exceed 50% and a section of it like the creamy layer of backward classes had to be excluded from this reservation quota, similar principle can certainly be made applicable to interpret the provisions of the Constitution (Seventy-third) Amendment Act inserting Part IX in the Constitution to save its constitutional validity. Thus, the concept of exclusion of politically dominated Backward Classes has to be read in to the provisions of Part IX of the Constitution. Otherwise members of the politically dominated Backward Classes will corner the reserved seats and the less politically dominated Backward Class for whom reservation is in fact provided would not be truly represented. It may also be noted that the Constitution (Seventy-third) Amendment Act and the Bihar Panchayat Raj Act provide for rotation of reserved seats, the life of the first Gram Panchayat being five years. Since provision for reservation ceases to operate in the year 2000, any provision of rotation at this stage is meaningless when election for any Panchayat has not so far been held. Considering the fact that continuance of reservation is not a basic feature of the Constitution, it could not be presumed that period of reservation which expires in the year 2000 would be extended again by the Legislature; rather presumption would be that this period would not be so extended.

(36) Article 40 in Part IV of the Constitution relating to directive principles of State Policy on which reliance has been placed by the respondents to uphold the constitutional validity of these provisions is as under :-"40. Organisation of village panchayats. The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government."The concept of Panchayat under this Article must be taken to be what was at the time of the framing of the Constitution. It is not that you can describe any body of persons as constituting Panchayat or give it a name of a Panchayat and on the strength of Article 40 try to uphold the provisions. Powers or authority which are to be conferred on the Village Panchayat is to enable it to function as a unit of self-government. For that purpose a question may be asked, if it is necessary that judicial powers be conferred on Gram Panchayat It was argued by Mr. Thakur that Gram Katchery is different than Gram Panchayat. That may appear to be so, but it is difficult to agree that Gram Katchery is not a part of the same scheme. Eleventh Schedule to the Constitution which was introduced by the Constitution (Seventy-third) Amendment Act, 1992 with reference to Article 243-G does not include judicial powers which could be conferred on a Gram Panchayat.

(37) In support of the submission as to the validity of the provision relating to Gram Katchery as contained in Chapter VI of the Act, Mr. Thakur referred to the decision of the Supreme Court in State of U. P. v. Pradhan Sangh Kshettra Samiti, AIR 1995 SC 1512 , where it was observed as follows (at p. 1531 of AIR) :-"The last contention of the respondents was that the Act makes provision for the nyaya panchayats whereas the amended provisions of the Constitution do not direct the organisation of such panchayats and, therefore, the Act is ultra vires the Constitution. The contention is only to be stated to be rejected. Admittedly the basis of the organisation of the nyaya panchayats under the Act is different from the basis of the organisation of the gram panchayats, and the functions of the two also differ. The nyaya panchayats are in addition to the gram panchayats. The Constitution does not prohibit the establishment of nyaya panchayats. On the other hand, the organisation of the nyaya panchayats will be in promotion of the directive principles contained in Article 39-A of the Constitution. It is, therefore, difficult to appreciate this contention."

(38) It was submitted that the Supreme Court by its judgment had upset the decision of the Allahabad High Court in Pradhan Sangh Kshetra Samiti, Jalalpur v. State of U.P., AIR 1995 All 162 . If, however, we refer to this Bench decision of the High Court it would appear that the issue regarding the constitutional validity of Nyaya panchayat under the U. P. Panchayat Raj Act, 1947 as amended by U. P. Act 9 of 1995 was not raised and there is no discussion in the judgment of the High Court. But then as we will presently see the provisions of Nyaya Panchayat in U. P. Act are entirely different than those of Gram Katchery in the Bihar Panchayat Raj Act.

(39) We may refer to the relevant provisions of the Nyaya Panchayat as envisaged under the U. P. Act under this Act, the State Government or the prescribed authority is to divide a district in to circles, each circle comprising as many areas subject to the jurisdiction of the Gram Panchayat as may be expedient, and establish a Nyaya Panchayat for each such circle. The minimum and maximum strength of every Nayaya Panchayat respectively shall be 10 and 25. From the Gram Panchayat the prescribed authority is to appoint Panchas of the Nyaya Panchayat whereupon those members cease to be the members of the Gram Panchayat. If the sufficient number of Panchas are not available from any Gram Panchayat, remaining vacancies are to be filled in by nomination from amongst other members of the Gram Sabha. No person may be appointed as a Pancha of Nyaya Panchayat unless he has the qualification that may be prescribed. When suitable persons with prescribed qualification are not available, the qualification could be relaxed by the prescribed authority. There are then provisions for the election of Sarpanch, resignation of Panchas, Bench of Nyaya Panchayat, filling of casual vacancies and territorial jurisdiction of Nyaya Panchayat, both for the purposes of Criminal Procedure Code, 1973 and Civil Procedure Code, 1908 and the extent of jurisdiction for trial of criminal and civil cases etc. There are also provisions for the applicability of the law of limitation, res judicata, dismissal of the cases in the absence of the party etc. What is more important for our purpose is the extent of punishment that could be awarded by the Nyaya Panchayat under the U. P. Act. The Nyaya Panchayat cannot inflict a substantive sentence of imprisonment and it can only impose a fine not exceeding Rs. 250 and then again there is no imprisonment in default of payment of fine. Nyaya Panchayat under the U. P. Act can try offences under Sections 379, 403 and 411, I.P.C. when the value of stolen or misappropriated property does not exceed Rs. 50 / -. There is a provision also for taking security bond for keeping peace. The bond can be of Rs. 100 / - with or without surety and for a period not exceeding 15 days. In default, however, of furnishing the bond, penalty of Rs. 5/- per day can be imposed for a period fixed in the order. As far as the extent of civil jurisdiction is concerned, the Nyaya Panchayat can take cognizance of certain civil cases of which the value does not exceed Rs. 100/-. It will be thus seen that a Nyaya Panchayat under the U. P. Act can try petty offences and suits and has no power to award punishment of imprisonment, Qualifications of the Panchas of the Nyaya Panchayat are also to be prescribed.

(40) There is thus a great deal of difference between the provisions relating to Nyaya Panchayat in U. P. Act and Gram Katchery under the provisions of the Bihar Panchayat Raj Act. No qualification is prescribed under the Bihar Act for a Pancha to be a member of the Gram Katchahry. No doubt, civil and criminal jurisdiction is conferred on the Gram Katchahry, but the Gram Katchahry can sentence an accused to (i) simple imprisonment for a term not exceeding three months; (ii) fine not exceeding Rs.1000 /-, and in default of payment of fine, simple imprisonment not exceeding 15 days. There is no provision like that in the U. P. Act that in case the Gram Katchahry finds that sentence imposable by it would be inadequate, the matter could be referred to the Judicial Magistrate. In civil cases a Gram Katchahry can try cases of the value up to Rs. 10,000/ -. Law relating to limitation as provided in the Act, res judicata etc. are applicable. The orders passed by the Gram Katchahry are appealable. They are to be in writing and are to be signed by the Panchas. To illustrate, we may refer to Section 106 which confers power on the Sarpanch in the case of imminent breach of peace or disturbance of the public tranquillity. For this he may by written order for the immediate prevention or the speedy remedy direct any person to abstain from certain acts or to take action with respect to certain property in his possession or under his management and this the Sarpanch is to do after stating material facts of the case. The question is as to how the functions of the Gram Katchahry under the Bihar Act are to be carried out, if it so happens that all or majority or some of the Panchas are illiterate. We are told by Mr. Thakur that there would be a Secretary to perform these functions. We are afraid there is no such provisions. There are no rules and we are in dark as to how a Gram Katchahry with such extensive powers will function. I am not touching the question of reservation of seats in a Gram Katchahry. Mr. Thakur said that after all the persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes are not illiterate and there is no reason to assume that only illiterate persons would be elected as Panchas of the Gram Katchahry. I think this is only a shot in the dark by Mr. Thakur. We are told that the total literacy in the State of Bihar is 38.48% of which the rural areas have a share of about 33% and the urban areas 67%. Literacy among the females, Scheduled Castes, Scheduled Tribes and Backward Classes is much lower. If we apply the law of probability it is apparent that most of the Panchas who would be elected to Gram Katchahry would be illiterate unable to read or write. Can the functions of a Court to try criminal offences and civil cases be entrusted to such persons They may have rugged common sense but that would not satisfy the requirement of law when the orders are to be in writing and are to be signed and are appealable.

(41) The provisions of Chapter VI relating to Gram Katchahry do not at all provide for any infrastructure. Further, these provisions (Sections 91 and 94) show that it is the executive which would control the affairs of the Gram Katchahry, thus striking at the root of the directive principle relating to separation of judiciary from the executive. The Supreme Court in All India Judges Association v. Union of India, (1993) 4 SCC 288 : (AIR 1993 SC 2493 ), has to say on the qualification of a Judge at the lowest rank to try cases both civil and criminal. Three years practice as a lawyer has been prescribed as essential qualification for recruitment of Judicial Officers at the lower rung. This is what the Supreme Court has said :-"It has, however, become imperative, in this connection to take notice of the fact that the qualifications prescribed and the procedure adopted for recruitment of the Judges at the lowest rung are not uniform in all the States. In view of the uniformity in the hierarchy and designations as well as the service conditions that we have suggested, it is necessary that all the States should prescribe uniform qualifications and adopt uniform procedure in recruiting the judicial officers at the lowest rung in the hierarchy. In most of the States, the minimum qualifications for being eligible to the post of the Civil Judge-cum-Magistrate, First Class / Magistrate, First Class / Munsif Magistrate is minimum three years practice as a lawyer in addition to the degree in law. In some States, however, the requirement of practice is altogether dispensed with and judicial officers are recruited with only a degree in law to their credit. The recruitment of law graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the Judges has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for the firsthand experience of the working of the Court-system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to, remain incomplete. The experience as a lawyer is, therefore, essential to enable the Judge to discharge his duties and functions efficiently and with confidence and circumspection. Many States have hence prescribed a minimum of three years practice as a lawyer as an essential qualification for appointment as a judicial officer at the lowest rung. It is, hence, necessary that all the States prescribe the said minimum practice as a lawyer as a necessary qualification for recruitment to the lowest rung in the judiciary. In this connection, it may be pointed out that under Article 233 (2) of the Constitution, no person is eligible to be appointed a District Judge unless he has been an advocate or a pleader for not less than seven years while Articles 217 (2)(b) and 124 (3)(b) require at least ten years practice as an Advocate of a High Court for the appointment of a person to the posts of the Judge of the High Court and the Judge of the Supreme Court, respectively. We, therefore, direct that all States shall take immediate steps to prescribe three years practice as a lawyer as one of the essential qualifications for recruitment as a judicial officer at the lowest rung."

(42) There is no administrative machinery whatsoever for the trial of offences as mentioned in Section 103 of the Act or of the suits the nature of which has been described under Section 107 of the Act. Chapter VI does not contain any provision as to how a man committing an offence and sentenced to undergo imprisonment could be taken into judicial custody and as to who would sign the warrant addressed to the Superintendent of Jail to imprison him. There is also no provision for financing a Gram Katchahry, i.e. to meet its administrative expenses. Perhaps, the Panches will also not be entitled to any remuneration.

(43) Section 109 provides for first appeal from a Bench decision of the Gram Katchahry to the Full Bench of the Gram Katchahry. Against the decision of the Full Bench, second appeal is also provided to a sub-Judge or a Sessions Judge. Then there is a provision for transfer of cases or suits either by a Magistrate or a Munsif (Section l10). Provision also exists for withdrawal of cases from Gram Katchahry (Section 111). Of course, a legal practitioner is barred from appearing before the Gram Katchahry but cannot be barred from appearing in second appeal, transfer or withdrawal of cases. It is difficult to appreciate what is sought to be achieved by these provisions which will only make the trial of suits and cases cumbersome and a never ending process. Under Section 119 a District Judge or any other Judicial Officer has power at all reasonable times to inspect the proceedings and records of the Gram Katchery or Benches thereof. But then to what effect, the Act is silent. There are provisions in Chapter VII for filing of election petitions to challenge the election of any Pancha of Gram Katchahry. What is the effect of any such petition Could a Pancha during the pendency of such petition perform his function, the Act is again silent. Under Section 126 a Gram Panchayat can be dissolved or reconstituted. What would be the effect of such an action on a Gram Katchahry established for the purpose of discharging judicial functions imposed upon a Gram Panchayat, the Act is yet again silent. As noted above, the Act (Section l13) bars the appearance of legal practitioner before the Gram Katchahry even in a criminal case where sentence of imprisonment can be up to six months except of course when a person is arrested. This is against the constitutional guarantee provided to an accused person. Rather, the Constitution provides for grant of legal aid to an accused person unable to defend himself.

(44) Self-government, local self-government and local government mean one and same thing when it comes to establishment of a local body like Panchayat. In the cities it is the Municipal Committee or the Municipal Corporation, but we have not been able to see any provision of law establishing local bodies entrusting judicial powers to them to try offences under the Indian Penal Code or the offences under other laws. It is one thing to make contravention of the provisions of the Act establishing them or the rules framed thereunder punishable and quite another thing to empower these local bodies to try those offences.

(45) Part IX-A of the Constitution providing for reservation etc. in the municipalities was inserted by the Constitution (Seventy-fourth) Amendment Act, 1992. As to what powers, authorities, responsibility could be endowed on the municipalities have been described in Twelth Schedule of the Constitution (Article 243-G). Such powers do not include trial of offences under I.P.C. or other laws by different body like Gram Katchahry.

(46) It may also be seen that entries 1, 2 and 13 in List III - Concurrent List in the Seventh Schedule of the Constitution relate respectively to criminal law (including offences under I.P.C.), criminal procedure and civil procedure for which provisions exist in Central laws. Could the State Legislature make different laws on the same very subject as provided in Chapter VI of the Act establishing Gram Katchahry and conferring powers on it for trial of offences and suits having different procedure is a question which also needed consideration. Further entry 5 of List II of the Seventh Schedule of the Constitution empowers the State Legislature to legislate for local Government, that is to say, the constitution and powers of municipal corporations etc. and other local authorities for the purpose of local self-government or village administration. Another question that may arise if this power would include constitution and organisation of courts which is entry 11-A of List III Concurrent List. Since nothing was argued on this subject I need not say anything on it.

(47) The provisions for establishment of Gram Katchahry and the procedure of the trial of suits and cases are neither fair nor reasonable nor just. Chapter VI has, therefore, to be struck down.

(48) I have nothing further to add and I agree with the judgment pronounced by my learned brother.Order accordingly.