The Supreme Court on Monday stayed the local body election in seats reserved for Other Backward Class (OBC) in Maharashtra.
“The election programme (notifications) 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. Rest of the election programme(s) can proceed for other reserved seats (viz., other than OBC), including general seats,” a Bench led by Justice A.M. Khanwilkar directed in the order.
The order came in a petition challenging a Maharashtra ordinance which introduced 27% reservation for OBC category in local elections. The State Election Commission had subsequently issued notifications to give effect to the ordinance.
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However, the Supreme Court ordered the State Election Commission to “desist from proceeding with the election programme already notified in respect of reserved seats for ‘OBC category only’ in the local bodies concerned”.
It said even in other future elections to Maharashtra’s local bodies, be it mid-term or general elections, the State Election Commission has to “desist from notifying reserved seats for OBC category” until further orders of the Supreme Court.
The seemingly indefinite stay was ordered after the court came to know that the 27% reservation was introduced through the ordinance without any empirical data to substantiate the claim for or extent of reservation.
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The court said a “triple test” has to be followed before deciding on the extent of quota to a category. Firstly, a dedicated Commission needs to be set up to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness as regards local bodies within the State; secondly, there is a need 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 thirdly, reservation should not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.
Though Maharashtra had set up a Commission in June 2021 to collect empirical data, the court noticed that the State did not wait for the panel to come up with a report. Instead, the State went ahead and promulgated an ordinance to side-step the triple test. The State Election Commission had followed suit by issuing election notifications implementing the ordinance.
The court noted in its order that setting up the Commission and collating contemporaneous empirical data to ascertain the extent of reservation required to be provided local body-wise were both mandatory.
“The State government constituted a Commission. However, without waiting for its report and opinion, it hastened the process by issuing an ordinance which clearly impinges upon the legal position expounded by the Supreme Court,” the order noted.