Maharashtra: No data work, says SC, stays civic polls to 27% OBC seats

Hearing writ petitions challenging the Maharashtra ordinance providing “up to 27 per cent” quota for the OBCs in local bodies and the State Election Commission’s notification of rules for the polls in accordance with the same, a bench headed by Justice A M Khanwilkar noted that though a Commission had been set up on June 29, 2021, the task of collating empirical data of backwardness “has not been completed so far”.

“As a result, the State Election Commission shall desist from proceeding with the Election Programme already notified in respect of reserved seats for ‘OBC category only’, in the concerned local bodies. The Election Programme in respect of all the local bodies across the State in respect of reserved seats for category Other Backward Class, shall remain stayed until further orders,” the bench, also comprising Justice C T Ravikumar, said.

It said that “rest of the Election Programme(s) can proceed for other reserved seats (viz., other than OBC), including general seats”.

The court also directed that “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”.

Refusing to accept the state’s arguments, Justice Khanwilkar said “there were steps that were to be followed… your political compulsions cannot be the basis to undo the judgment… If you had constituted the Commission, you should have waited for the data to be submitted”.

The bench pointed out that its decision in the Vikas Kishanrao Gawali v State Of Maharashtra had noted the triple test to be followed before provisioning such reservation for OBC category. The triple test as per this are (1) to set up a Commission to conduct rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and (3) in any case such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of Scs/Sts/OBCs taken together.

“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,” the bench said.

Appearing for the state, Senior Advocate Shekhar Naphade said the provision inserted via the ordinance was in conformity with the decision of the court and that it was for providing reservation to the category of backward class citizens up to 27% only.

But the bench said “we are not impressed by this argument… 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”.