Reservation to Other Backward Classes (OBCs) in local body elections sans empirical base can no more be sustainable in law and the apex court’s latest order in Rahul Ramesh Wagh v. State of Maharashtra &Ors. makes it mandatory that the principles laid down by the Supreme Court for providing reservation to OBCs in local bodies shall be scrupulously followed across the country. The latest order arises out of the challenge made to the ordinance promulgated on the teeth of the Supreme Court judgments by the Governor of Maharashtra to conduct the local body elections by providing 27% reservation to OBCs.
- The apex court’s latest order in Rahul Ramesh Wagh v. State of Maharashtra &Ors. makes it mandatory that the principles laid down by the Supreme Court for providing reservation to OBCs in local bodies shall be followed across the country.
- A five-judge Constitution Bench in the K. Krishnamurthy (Dr.) v. Union of India (2010) judgment said that barriers to political participation are not the same as barriers to education and employment. Though reservation to local bodies is permissible, the top court declared that the same is subject to three conditions: 1) to set up a dedicated Commission to conduct empirical inquiry into the nature of the backwardness in local bodies, 2) to specify the proportion of reservation required to be provisioned local body-wise 3) such reservation shall not exceed aggregate of 50% of the total seats reserved for SCs/STs/OBCs taken together.
- Maharashtra had constituted a Commission to ascertain the backwardness of OBCs in June 2021. But without waiting for an empirical report, an ordinance was promulgated to amend the Maharashtra Zilla Parishads Act, Panchayat Samitis Act and the Maharashtra Village Panchayat Act so as to conduct local body elections with OBC reservation. This was struck down by the Supreme court.
The Constitution Bench decision
The present political quandary harks back to the five-judge Constitution Bench decision in K. Krishnamurthy (Dr.) v. Union of India (2010) wherein the Supreme Court had interpretedArticle 243D(6) and Article 243T(6), which permit reservation by enactment of law for backward classes in panchayat and municipal bodies respectively,to hold that barriers to political participation are not the same as that of the barriers that limit access to education and employment. However, for creating a level playing field, reservation may be desirable as mandated by the aforementioned Articles which provide a separate constitutional basis for reservation, as distinct from what are conceived under Article 15 (4) and Article 16 (4) which form the basis for reservation in education and employment. Though reservation to local bodies is permissible, the top court declared that the same is subject to empirical finding of backwardness in relation to local bodies as fulfilled through the three tests as follows:
“1) 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; 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; 3) 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 Indian political class usually displays apathy to the law declared by the courts as contrary to the enacted law. 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 the 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 Scheduled Castes and Tribes (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 usual route of ordinance to overcome an adverse judicial decision.
The wingless ordinance
Maharashtra had constituted a Commission to ascertain the backwardness of OBCs in June 2021. But without waiting for an empirical report, as mandated by the court, an ordinance was promulgated to amend the Maharashtra Zilla Parishads and Panchayat Samitis Act and the Maharashtra Village Panchayat Act 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 transgressed. The ordinance failed to take off, as it was challenged before the Bombay High Court; but the election process was not stalled, citing which the petitioner reached the Supreme Court by filing appeal by special leave and the election process qua the reserved seats was stayed. 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
Surprisingly, on December 23, the Madhya Pradesh Legislative Assembly passed a resolution to keep the local body elections without OBC reservation at abeyance. 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.
Interestingly, the last order of the apex court records that “In case, the State or Union Territory is not in a position to fulfil the triple test requirement and the election to any of its local body cannot be postponed beyond the statutory period, the (State) Election Commission (concerned) ought to notify proportionate seats as open category seats, and proceed with the elections of the local bodies.”
Had the governments stuck to the law as mandated by Article 141 of the Constitution, this quandary wouldn’t have arisen. Rule of law is not just a set of letters, but it has to be followed in spirit.
Abhilash M. R. is an advocate practising in the Supreme Court of India
