Recently, the Supreme Court (SC) while hearing a plea by the Maharashtra government decided to recall its December 2021 order, which stayed 27% reservation for Other Backward Classes (OBCs) in local body elections.
About OBC reservation in local bodies
- The Maharashtra government set up a 27 percent quota in local bodies for OBCs in 1994.
- The 27 percent reservation was applicable to all urban (Municipal Corporations, Councils and Nagar Panchayat) and rural bodies (Zilla Parishad, Panchayat Samiti and Gram Panchayat) across the state.
- In Maharashtra, the OBCs include the Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category.
- This quota for OBCs increased their representation in rural and urban local bodies.
What is the history of the demand for an OBC census in Maharashtra?
- As per the Mandal Commission report, the last caste-wise census was conducted in 1931 and it was later discontinued.
- Based on the data from the 1931 census, the Mandal commission worked out the OBC population to be 52 per cent and recommended a 27 per cent reservation for OBCs in view of the SC judgment limiting reservation up to 50 per cent.
- There was already a 22.5 per cent reservation for SC and ST categories.
- The Mandal Commission report recommended 27 per cent reservation in government jobs and promotions along with others.
- The report gave momentum to OBC leaders and the community’s demand for a caste-wise census of OBC.
The Constitution Bench decision
Krishnamurthy (Dr.) v. Union of India (2010)
- Supreme court declared that though reservation to local bodies is permissible, the same is subject to empirical finding of backwardness in relation to local bodies as fulfilled through the three tests as follows:
- To set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;
- To specify the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission.
- and in any case such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.” The 50% ceiling specifically relied on the ratio of the historic Indra Sawhney judgment (1992).
Vikas Krishnarao Gawali v. State of Maharashtra &Ors. (2021)
- The 2010 judgment was not acted upon and the constitutionality of the enacted reservation was challenged. This resulted in the 2021 judgment of a three-judge Bench of the Supreme Court.
- In this above case, the Supreme Court read down the provision of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, which mandated for 27% reservation to OBCs in local bodies.
- The court observed that the reservation for OBCs was just a statutory dispensation to be provided by the State legislations and is different from the constitutional” provisions which mandate reservation to the SC/ST.
- While insisting on the triple test, the court observed that the reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.
- The Supreme Court quashed notifications issued by the Maharashtra Election Commission, which provided more than 50% reservation to OBCs and SC/STs in some local bodies.
- However, the political decision was to take the route of ordinance to overcome an adverse judicial decision.
The wingless ordinance
- Maharashtra had constituted a Commission to ascertain the backwardness of OBCs
- But without waiting for an empirical report, as mandated by the court, an ordinance was promulgated to amend the Maharashtra local body legislations so as to conduct local body elections while ensuring OBC reservation.
- Though the ordinance was portrayed to be in compliance with the order of the apex court without breaching the 50% ceiling as mandated by the triple test, other parameters had been violated.
- The ordinance failed to take off, as it was challenged before the Bombay High Court; but the election process was not stalled,
- The OBC reservation and notification for the local body election in Madhya Pradesh also were deemed to fall foul of the Supreme Court order, as was found by the apex court, on challenge.
- The Supreme Court directed the re-notification of the reserved seats as belonging to general category in both the States on the basis of which the election process may proceed.
- Legislative resolve and the judicial response
- Madhya Pradesh Legislative Assembly passed a resolution to keep the local body elections without OBC reservation at suspension.
- Taking a political cue from Madhya Pradesh, the Maharashtra Legislative Assembly also passed a resolution to stall the local body elections in the wake of the judicial interference.
|Source: The Hindu
Interestingly, the last order of the apex court records that “In case the State is not in a position to fulfil the triple test requirement, then the election to local body cannot be postponed beyond the statutory period. In such situation, the State Election Commission concerned ought to notify proportionate seats as open category seats, and proceed with the elections of the local bodies.”