S.S.SANDHAWALIA, C.J. - (1.) Issues of seminal significance reaching out to the fundamental case of the republic and the democratic process itself have come to the fore in this set of 12 connected writ petitions referred for an authoritative decision to the Full Bench. These deserve a somewhat precise formulation which might well be done at the very outset in the terms following :- (1) Does the equality clause of Article 14 of the Constitution equally mandates an equality of franchise for the citizen in the context of elections generally and in particular with regard to the elections at the grass root level of village Panchayats ? (2) Does the prohibition of discrimination on grounds of race or caste enshrined in Article 15(1) permeates the electoral rights of franchise as well ? (3) Is the larger constitutional scheme indicative of a clear prohibition against all discrimination either for or against any citizen in the field of franchise and electoral rights ? (4) Would clause (1) of Article 15 warrant or protect State Legislation discriminating in favour of scheduled castes and scheduled tribes in the field of franchise rights to Village Panchayats ? (5) Assuming entirely for the sake of argument that Article 15(4) is applicable, then would the reservation of the solitary post of a Mukhiya (in the self-contained unit of a Panchayat) exclusively for scheduled castes and scheduled tribes be excessive, unreasonable and violative of rule of equality ? (6) Whether Ss.2 and 3 of the amending Ordinance No. 3 of 1987 to the Bihar Panchayat Raj Act suffer from the vice of unconstitutionality ?
(2.) The representative matrix of basal facts may be noticed from Civil Writ Jurisdiction Case No. 1617 of 1987 (Kali Charan Singh v. State of Bihar). Of the six petitioners, Kali Charan Singh Yadav, petitioner 1, is the Pramukh of the Panchyat Samiti of Bodh Gaya whilst petitioners 2 to 6 are all Mukhiyas of five different Panchayats in the district of Gaya. The petitioners are primarily aggrieved by the promulgation of the Bihar Panchayat Raj Ordinance, 1987 (Bihar Ordinance No. 3 of 1987) and in particular Ss.2 and 3 thereof. It is averred that hardly a few days before the issuance of the impugned Ordinance, both the Houses of the State legislature were in Session but the State Government did not put the matter of reserving the seats of Mukhiyas in favour of scheduled castes and scheduled tribes before either the Legislative Assembly or the Legislative Council, even though they were contemplating since long to make an amendment in the Act and as early as in the month of September, 1986 had asked all the District Magistrates to prepare a report of the Harijan population in their districts for making provision of representation of scheduled casts and scheduled tribes in the Panchaity Raj system. However, almost immediately after the adjournment or prorogation of the two Houses, the State Government through the indirect method of issuing the impugned Ordinance has sought to reserve the seats of the Mukhiya of a number of Panchayats to serve political ends of the Ruling Party through undemocratic, hasty and mala fide legislation. The impugned Ss.2 and 3 of the Ordinance purport to reserve number of the seats of Mukhiyas in the village Panchayats for scheduled castes and scheduled tribes on the alleged basis of the percentage of the scheduled castes and scheduled tribes in the total population of the districts according to the last census and authorised the Collector to issue an order to the same effect. In the purported exercise of the said power, the Collector-cum-District Magistrate of Gaya issued the impugned order dated 12th April, 1987 (Annexure-1) whereby as many as 83 eats of Mukhiyas in all have been reserved for scheduled castes including the Panchayats of the petitioners arbitrarily and without giving them any opportunity of being heard.
(3.) By way of analogy it is pointed out that even under Arts.330 and 332 read with Arts.81 and 171 of the Constitution, there is a complete and adequate provision for hearing by virtue of Ss.6,7, and 8, Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and other Acts. These provisions mandate the Election Commission to publish the proposal of declaring certain seats in the House of the People and the State Legislative Assembly as reserved for scheduled castes and scheduled tribes. The proposals are required to be published in the official gazette and the Election Commission is required to specify the date on or after which said proposals will be further considered by it. The said Commission is also enjoined to consider all objection of citizens which have been received by it before the dates so specified and thereafter make the necessary amendments in the order. In essence, there are thus provisions to provide sufficient and adequate opportunities to the people concerned before making reservations of seats for scheduled castes and scheduled tribes even as regards the composition of House of People as well as in the State Legislative Assemblies. In short, in contrast thereto, the Ordinance makes no provision for the publication of any draft proposals for reservations or filing of any claim or objections against the same or providing any opportunity of hearing to the persons affected by such reservations. It is alleged that there is no guideline or criterion to determine the seat of a Mukhiya of a Panchayat reserved for scheduled castes or scheduled tribes and it is otherwise violative of the principle of natural justice.;