NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Case Comment on: UNION OF INDIA

VS.
RAKESH KUMAR AND OTHERS
IN THE SUPREME COURT OF INDIA( CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NOS. 484-491 OF 2006

SUBJECT- Tribal And customary Law

Submitted by: -

PRASHANT VERMA Submitted to:-

2016 B.A.LLB. 98 PROF. BIR PAL SINGH

1
 Acknowledgement

“I am deeply indebted to various persons who have helped us in this project,

knowingly or unknowingly. First of all, we would like to express our profound
gratitude towards PROF. BIR PAL SINGH , Faculty of Law, National law Inst.
University, Bhopal and under whose tutelage we are learning TRIBAL AND
CUSTOMARY LAW, to give us this opportunity to work on this project and get
exposed to a new set of challenges and achievements.
I would like to thank our colleagues, my classmates for the invaluable discussion
and debate from which I garnered many relevant points”
 Name of the Case – UNION OF INDIA VS. RAKESH KUMAR AND OTHERS.

Citation – CIVIL APPELATE JURISDICTION ( CIVIL APPEAL NO. 484-491 of 2006)

Date of judgment – 12.07.2012

Bench – P. sathashivam , J.M Panchal

Author- K. Balakrishnan

APPELLANT- UNION OF INDIA

RESPONDENT- RAKESH KUMAR AND OTHERS.

BRIEF AND SUMMARY OF CASE

“For a substantial amount throughout country Rule, special laws were created applicable to sure
“”The`backward areas' in the republic of India that were preponderantly occupied by tribal individuals.
These backward regions coated a vicinity of quite one,20,000 sq. miles. However, the characteristics of
those areas and their populations varied wide. By Act XIV of 1874, Santhal Parganas and Chutia Nagpur
Division (now called Chhotanagpur Division) were created and in these `Scheduled districts', tribal
group communities were accorded a precise degree of autonomy to control their affairs on the idea of
their own conventions and traditions. Several of these communities selected their leaders through an off-
the-cuff accord among different customary ways for choice. Once the Constitution was enacted, these
areas were selected as `Scheduled Areas'. Article 244 of the Constitution expressly states that the
provisions of the Fifth Schedule shall apply in respect of the administration and management of the
scheduled Areas in any State apart from the States of Assam, Meghalaya, Tripura and Mizoram. The
provisions of the Sixth Schedule guide the administration of tribal group areas in those states. Paragraph
(4) of the Fifth Schedule states that there shall be in every State having a "Schedule Area", a `Tribes
consultative Council' consisting of less than twenty members of whom, as nearly as is also, three-
fourths shall be the representatives of the Scheduled Tribes within the legislative Assembly of the State.
It had been the duty of the `Tribes consultative Council' to advise on matters bearing on the welfare and
advancement of the scheduled Tribes within the State. Paragraph (5) of the Fifth Schedule states that the
Governor of the State might by public notification direct that any explicit Act of Parliament or the
assembly of the State shall not apply to a scheduled space or would apply subject to such exceptions and
modifications as he might specify. The Governor of the State might also create laws for the peace and
sensible government of any space in an exceeding state that is for the nonce a scheduled space. The
Governor of the State has additionally been given the ability to repeal or amend any existing Act of
Parliament or of the assembly of the State that is for the nonce applicable to the realm in question.
Hence, it's evident that the framers' intent behind as well as the Fifth Schedule was that of a separate
body theme for scheduled Areas so as to deal with the special desire of social group communities.
Throughout the debates on the ground of the Constituent Assembly, some members had criticized such
differential treatment for scheduled Tribes. In response to such criticisms, Shri K.M. Munshi had
aforesaid that `Adivasis' or tribes were several in variety happiness to totally different "ethnic, non-
secular and social groups" and he explained the article of the Drafting Committee's proposals in the
following words:1”
"We wish that the scheduled Tribes within the whole country ought to be shielded from the
harmful impact of races possessing a better and additional aggressive culture and may be
inspired to develop their own autonomous life; at the identical time, we would like them to
require a bigger half within the lifetime of the country adopted. They must not be isolated
communities or very little republics to be perpetuated forever..... object is to take care of them
as very little unconnected communities which could change into totally different teams from the
remainder of the country..... which these tribes ought to be absorbed within the national life of
the country."

MATERIAL FACTS OF CASE:2

1. “High court held in one of its judgement that the second proviso to Section 4(g) of the
Panchayat (Extension to Schedule Areas) Act [PESA], 1996 reserving all the seats of
chairpersons of Panchayats in favour of Scheduled Tribes was Unconstitutional; this
was made reserved”.
2. “The above mentioned, finding of the High court was challenged before the Supreme
Court by Union of India.”
3. “The High court did not specify the reason for striking down all these provisions by
holding them to be unconstitutional.”
4. “The only reason given by High Court was that cent per cent reservation of the offices
of chairpersons is excessive, unreasonable and against the principle of equality.”

1
https://indiankanoon.org/doc/1356187/
2
2https://www.maupatra.com/unionofindia vs rakeshkumar and othrs.
ISSUES

“The main issue raised in the case was: The tribes consultative councils, that were deep
seated for the Scheduled areas since the Panchayati Rule System had not been extended to
them.”

Contentions by Parties:
Appellant’s Arguments:
1. “There was on contention on behalf of the appellants before the High Court that the
members of backward class were not entitled to get reservation in the scheduled areas.”
2. “The argument advanced on behalf of appellant’s only contend to depict that the attitude
of the members of the advanced sections of the society towards castes and tribes
continues to be more of competition than compassion.”

Respondent’s Arguments:
1. “Significant criticism of aggregate reservation amounting to 80% of the seats in
panchayats located in Scheduled Areas is that it amounts to an unreasonable limitations
on the rights of political participation of persons belonging to general category.”
2. “Such excess policy of reservation is bound to create bad blood between the two classes
and would be a serious deterrent to bring such oppressed classes into the mainstream of
domestic life.”
3. “The policy leads to reverse discrimination who are not eligible for such reservation
benefits.”
4. “No scope of rotation of seats.”
5. “Lastly constitutional intention is not for 100% reservation but, only of proportionate
reservation.”
PROVISION INVOLVED :
 1. The Panchayat (Extension to Schedule Areas) Act, 1996 – Section 4(g)3
Notwithstanding anything contained under Part IX of the Constitution, the Legislature of a State
shall not make any law under that Part which is inconsistent with any of the following features,
namely:--
“(a) a State legislation on the Panchayats that may be made shall be in consonance with the customary
law, social and religious practices and traditional management practices of community resources;
(b) a village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of
hamlets comprising a community and managing its affairs in accordance with traditions and customs;
(c) every village shall have a Gram Sabha consisting of persons whose names are included in the
electoral rolls for the Panchayat at the village level;
(d) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the
people, their cultural identity, community resources and the customary mode of dispute resolution;
(e) every Gram Sabha shall--
(i) approve the plans, programmes and projects for social and economic development before such plans,
programmes and projects are taken up for implementation by the Panchayat at the village level;
(ii) be responsible for the identification or selection of persons as beneficiaries under the poverty
alleviation and other programmes;
(f) every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification
of utilisation of funds by that Panchayat for the plans, programmes and projects referred to in
clause(e);
(g) the reservation of seats in the Scheduled Areas at every Panchayat shall be in proportion to the
population of the communities in that Panchayat for whom reservation is sought to be given under Part
IX of the Constitution:
Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total
number of seats:
Provided further that all seats of Chairpersons of Panchayats at all levels shall be reserved for the
Scheduled Tribes;
(h) the State Government may nominate persons belonging to such Scheduled Tribes as have no
representation in the Panchayat at the intermediate level or the Panchayat at the district level:
Provided that such nomination shall not exceed one-tenth of the total members to be elected in that
Panchayat;
(i) the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the
acquisition of land in the Scheduled Areas for development projects and before re-settling or
rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and
implementation of the projects in the Scheduled Areas shall be coordinated at the State level;
(j) planning and management of minor water bodies in the Scheduled Areas shall be entrusted to

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Panchayats at the appropriate level;
(k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made
mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled
Areas;
(l) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be
made mandatory for grant of concession for the exploitation of minor minerals by auction;
(m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may be
necessary to enable them to function as institutions of self-government, a State Legislature shall ensure
that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with--
(i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any
intoxicant;
(ii) the ownership of minor forest produce;
(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to
restore any unlawfully alienated land of a Scheduled Tribe;
(iv) the power to manage village markets by whatever name called;
(v) the power to exercise control over money lending to the Scheduled Tribes;
(vi) the power to exercise control over institutions and functionaries in all social sectors;
(vii) the power to control over local plans and resources for such plans including tribal subplans;
(n) the State legislations that may endow Panchayats with powers and authority as may be necessary to
enable them to function as institutions of self-government shall contain safeguards to ensure that
Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower
level or of the Gram Sabha;
(o) the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution
while designing the administrative arrangements in the Panchayats at district levels in the Scheduled
Areas.”

2. “Panchayati Raj Act, 2001 – Section 21(B), Section 40(B), Section 55(B)4”
“-Panchayat rules for the administration of Schedule tribes and there areas and rules for
there Panchayat and specific laws.”

3. “Act XIV of 1874 Article 244 Paragraph (4) of the Fifth Schedule The provisions of
the Sixth Schedule Paragraph (5) of the Fifth Schedule paragraph 6(i) of the Fifth
Schedule The Scheduled Area (Part A States) Order, 1950.5”
“-Provision as to control and administration of Schedule area and schedule tribes.”

4
www.ssconline.com/panchayatirajact2001
5
www.wikipedia.com/schedule5ofindianconstitution
DOCTRINE , PRINCIPLE, CONCEPTS,THEORY INVOLVED

DOCTRINE: “””The provision of the law which was under scrutiny by the Hon’ble Apex
Court of India was the proof as to constitutional validity to protecting interest of citizen with
respect to reservation policy.”

PRINCIPLE LAID: “”That the special right of the schedule area and schedule tribes dose not
invalidate the principle of equality according to Art. 14 of Indian constitution as schedule 5 of
constitution protects the right of the schedule area and schedule tribes , and the cutomary law
are the rights of the schedule tribes and no law can reffrian them to use there specific land and
customary law as they are protected by schedule 5 of the Indian constitution and they have the
specific area which is protected by constitution itself and Panchayat (Extention to Schedule
area) Law 1996.”

THEORY INVOLVED: ““”An appreciable factor of the decision is that the Hon’ble Apex
Court after referring The judgment distinguished between three models of affirmative action:”

a. Proportionate representation

b. Adequate representation

c. Compensatory representation

“according to the law not more than 50% reservation can be provided to any Schedule tribe or
schedule caste but the customary law of the tribes can govern them and no law can suppress
there customary rights and law , the case of SA is such an exceptional circumstance on account
of the special constitutional arrangements for administration of tribal areas, high population but
under-representation of tribal peoples in administrative and government bodies.”

CASES COURT RELIED ON :

“”In the course of adjudication, the Court referred to various earlier decisions including, inter
alia, Patna High Court in the case of Janardhan Paswan v. State of Bihar, AIR 1988
Pat 756”

“This case was distinguished by the High Court keeping in mind that it was decided before
the commencement of the Seventy-Third Amendment and that Article 243-D in Part IX of
the Constitution had contemplated the said reservation policy. However, the High Court
held that the second proviso to Section 4(g) of the PESA Act, 1996 reserving all the seats of
Chairpersons of Panchayats in favour of Scheduled Tribes was unconstitutional.”

And this was challenged in Apex court

“The High Court did not state any specific reason for striking down the second proviso to
Section 4(g) of the PESA Act, 1996 as well as Sections 21 (B), 40 (B) and 55 (B) of the
JPRA Act, 2001 by holding these provisions to be unconstitutional. The only reason given
by the High Court was that cent per cent reservation of the offices of Chairpersons is
excessive, unreasonable and against the principles of equality.
The APEX court reversed the judgement of highcourt station the reason of BHURIYA
COMMITTEE for the schedule tribes and reservation of panchayat seats for schedule area
to schedule tribes person and the union of india has also accepted the report of the
committee .”

Indra Sawhney v. Union of India (1992) Supp 3 SCC 2177

“which had prescribed an upper ceiling of 50% for reservation of posts in public employment.
Reference was also made to a decision of the Patna High Court in the case of Krishna Kumar
Mishra v. State of Bihar, AIR 1996 Pat. 112, wherein a similar view had been adopted.”

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 CONCRETE JUDGEMENT(JUDGEMENT IN PERSONAM)8

“The Apex Court’s bench comprising of P. Sathasivam and J.M. Panchal upheld the
constitutional validity of all the mentioned sections in the case under the following
grounds:”
1. “Schedule V creates the ‘Tribes Advisory Council’, to advice on welfare and
advancements of Scheduled tribes and areas.”
2. “The policy to reserve the seat of Chairperson for Schedule Tribe emerges from Bhuria
Committee report on extending part IX to Scheduled Areas.”
3. “The scheme and objective of Schedule V being the protection of autonomy, rights,
culture and resources in Scheduled Areas is different from the provisions under
Articles 15(4) and 16(4).”
4. “Reserving seat of Chairperson for Schedule Tribes does not violate Article 14 of
Indian Constitution.”
5. “The judgement distinguished between 3 models of affirmative action:”
6. “Proportionate Representation”
7. “Adequate Representation”
8. “Compensatory Representation”
9. “The Supreme Court judgement, which laid down the upper limit of 50% in
reservation, also laid down that it may exceeded in exceptional circumstances.”

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https://cjp.org.in/wp-content/uploads/2019/07/Synopses-of-Judgments-on-Scheduled-Areas.pdf
RATIO DECENDI OF JUDGEMENT

“The Court expanded expression by reaffirming the principle that the provision of the law
which was under scrutiny by the Hon’ble Apex Court of India was the proof as to constitutional
validity to protecting interest of citizen with respect to reservation policy. The ratio of the case
is that the schedule area is protected by schedule 5 of the constitution and the customary law of
the tribes will prevail in the ruling and governing there area there interest and rights are
protected and the reservation in panchayat for local tribal areas will not be unconstitutional as
per the law as it is not exceeding 50% of reservation . and it’s the interest of all citizen as well
as the Tribal people.”

COUNCLUSION:
 “”In view of the aforesaid analysis, the court has upheld the constitutional validity of
the above mention laws”

 ““”This landmark ruling goes a long way to affirm that the protection of schedule tribes
and there area and the panchayat law are in favour of everyone and the rules of
reservation in panchayat are valid.”

 “It can be concluded that Supreme Court through its judgement in this case laid down a
“very sound and a much needed judgement since Tribal Areas are being exploited and
the judgement thus gave a breath of relief.”