The Maharashtra government’s 27% reservation for Other Backward Classes (OBC) in local body elections was on Monday stayed by the Supreme Court. An SC bench comprising Justices AM Khanwilkar and CT Ravikumar passed the order on writ petitions challenging the Maharashtra Ordinance, which brought in the 27% quota.
The apex court said the election cannot proceed on the 27 per cent reserved seats for OBC candidates in the local body elections, LiveLaw reported. The bench, however, ordered that the rest of the election can proceed for other reserved seats, including the general category.
The court said the OBC quota couldn’t be implemented without forming a commission. “Without setting up a commission to collect data local government wise, it is not open to the State Election Commission to provide for reservation of OBC category. That is the first step which ought to have been done,” the bench said in its order.
The apex court observed that a similar issue had come up earlier before it and a three-judge bench had delivered judgement in which the court had noted the triple test to be followed before provisioning such reservation for the OBC category. It noted that this was a reiteration of the exposition of the constitution bench on the issue of quantum of the reservation to be provided for OBCs.
“To overcome the decision of this Court, the impugned Ordinance has been issued by the State Government and in compliance thereof, the State Election Commission has already notified the election programme for the concerned local bodies which includes a reservation for OBC on lines specified in the provisions mentioned in the impugned Ordinance, the bench said. The counsel appearing for Maharashtra told the bench that the provision in the Ordinance is in conformity with the decision of the apex court and it is only providing for reservation to the category of backward class citizen up to 27 per cent.
Observing that it is not impressed by this argument, the bench said that without setting up the commission and collating contemporaneous empirical data to ascertain the extent of reservation required to be provided local body-wise, it is not open for the State Election Commission to provide reservation for OBC category despite the statutory provision in that regard. That is only an enabling provision, but to be given effect to only on complying the triple test. The first step of collating empirical data has not been completed so far, it said.
The bench noted that the state government has constituted a commission in June this year. However, without waiting for its report and opinion, the state government hastened the process by issuing Ordinance which clearly impinges upon the legal position expounded by the constitution bench of this court and restated in the subsequent three-judges decision in., it said. Rest of the election programme(s) can proceed for other reserved seats (viz., other than OBC), including general seats. The State Election Commission shall desist from notifying reserved seats for OBC category even in case of future elections to any local bodies either mid-term or general elections, as the case may be, until further orders of this court, the bench said.
It posted the matter for hearing on December 13 along with a separate plea filed by Maharashtra which has sought direction to the Centre and other authorities to disclose to the state the SECC (Socio-Economic and Caste Census) 2011 raw caste data of OBCs which has not been made available to them despite repeated demands. During the hearing, the counsel appearing for State Election Commission said local body election has been notified and the nomination process would be closed on Tuesday.
We will stay only the 27 per cent election, rest of the election will continue, the bench observed. The state’s counsel said then the OBC will remain unrepresented.
That is your problem. You have created this. You have to suffer. The judgement was very clear, the bench said. The state’s counsel said the amendment is only clarificatory that it will be up to 27 per cent.
He said the state has demanded data from the Centre and they have not got it yet. Your political compulsions cannot be the basis to undo the judgement, the bench said.
In March this year, the apex court had said that reservation in favour of OBCs in concerned local bodies in Maharashtra cannot exceed aggregate 50 per cent of the total seats reserved for Scheduled Castes, the Scheduled Tribes and OBCs taken together. The apex court, while reading down section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act 1961 which provided 27 per cent reservation for persons belonging to the backward class, had also quashed the notifications issued by the state election commission in 2018 and 2020 to the extent of providing reservation of seats in concerned local bodies for OBCs.
It had referred to the triple condition noted in the Constitution bench verdict of 2010, including setting up a dedicated commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies within the state.
(With PTI inputs)