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Wednesday, Nov 05, 2003

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Pappapatti: constitutional issues

By Mani Shankar Aiyar

The need now is to base reservation for the Scheduled Castes and the Scheduled Tribes of seats and posts in Panchayati Raj institutions on the pattern indicated in the Constitution.

NO WORDS are too strong to condemn the outrage in Pappapatti. It is for the Tamil Nadu Government to proceed against the offending parties under the Central Act relating to the prevention of atrocities against the Scheduled Castes. At the same time, it is important that the system of reservation for Dalits in elected local bodies envisaged in Parts IX and IXA of the Constitution (the 73rd and 74th amendments) not be discredited. For Pappapatti is largely the consequence of the absence of any real powers to village panchayats. So little constructive work gets done and there is, therefore, fertile ground left for caste conflict to overtake the real purposes of Panchayati Raj; but it is also partly the consequence of the failure of the Tamil Nadu legislation on Panchayati Raj to accurately reflect the very precise provisions of the Constitution in respect of reservation for the Scheduled Castes and the Scheduled Tribes.

The root of the problem lies in applying to local body elections the same procedure as is adopted for SC-ST reservation in elections to the State Assemblies and the Lok Sabha. In regard to State Assemblies and Parliament, the proportion of the Scheduled Castes and the Scheduled Tribes in the population of the State as a whole is taken as the basis for reserving the same proportion of seats in the legislature, be it in the States or at the Centre. The same procedure has been adopted for SC-ST reservation in elections to the three-tier rural panchayats (village, union, district) and the three levels of the nagarpalikas (town panchayats, municipalities, corporations).

The constitutional stipulation is different. Article 243 D (1) says explicitly, in regard to the panchayats at all three levels, that "seats shall be reserved for SC-ST 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 as the population of the Scheduled Castes in that panchayat area or of the Scheduled Tribes in that panchayat area." (emphasis added) To abstract from the legalese, this means that if there is no ST population — as in my parliamentary constituency — there would be no reservation for the STs, either initially or by rotation, in any panchayat at any level anywhere in the constituency. But if, as is in fact the case, there is a large SC population, then, depending upon how predominant it is in a particular panchayat area, the number of reserved SC seats would be proportionately higher than in an area with a smaller proportion of SCs on its voters' list. Therefore, in terms of the constitutional provisions, we would not get a large number of reserved seats in a panchayat area where the proportion of Dalits is small, whereas, in the arbitrary system of reservation provided for in the State legislation, such anomalies will occur.

Moreover, with regard to rotating such reserved seats, Article 243 D (1), cited above, goes on to say that "such seats may be allotted by rotation to different constituencies in a panchayat." Thus, reserved seats are not to be rotated between panchayats but within the same panchayat. In this manner, the number of reserved seats in any given panchayat (village, union or district) will remain the same and in proportion to the SC-ST population in that panchayat area, thus precluding the possibility of SC-ST seats being reserved where there is no or relatively little SC/ST population or disproportionately effecting reservation and thus stoking social tensions.

In Rajiv Gandhi's schema (the 64th and 65th amendments) there was no provision for reservation of posts in local bodies; in accordance with the Supreme Court's directives at the time, reservation was confined to seats and did not extend to posts (such as chairperson). However, in the 73rd and 74th amendments enacted by Parliament, reservation and rotations were introduced for posts. The methodology and procedure was left to the wisdom of the State Legislatures, subject to the proviso that the number of reserved posts of chairperson "shall bear, as nearly as possible, the same proportion to the total number of such panchayats at each level" as the SC-ST population "in the State bears to the total population of the State." [Article 243D (4)] Clearly, it would make sense to effect reservation for posts in areas of SC-ST concentration, as is the practice for SC-ST reservation in the Lok Sabha and the Assembly constituencies, as also spread rotations over several elections to give SC-ST chairpersons the opportunity of learning on the job and consolidating their prospects of re-election even after the post is rotated out.

Tragically, reservation and rotation of posts in Panchayati Raj has become something of a political football. Further complications have been caused by arbitrary or, at any rate, lottery-like decisions on which posts to reserve for SC-ST women (and women's reservation in general). The need now is to base SC-ST reservation for seats and posts on the pattern indicated in the Constitution and then determine in an objective, fair, transparent and generally acceptable manner the method of reserving and rotating seats and posts. This might best be done by a statutory body, not the State Government.

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