The Uttar Pradesh government on Thursday moved the Supreme Court against an Allahabad High Court direction to hold local body elections in the State without reservation for Other Backward Classes (OBC).
The case raises the fundamental question whether quota for political representation in urban self-government bodies can be equated with reservation in higher education and public employment for socially and economically backward classes.
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The State government argues that there is no flaw or illegality in providing reservation to the very same 79 backward class communities listed in the U.P. State Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 in respect of seats and offices of chairpersons of local bodies. The 1994 Reservation Act had however identified these backward classes to provide them quota to access higher education and public employment and not for the purpose of political representation.
But Uttar Pradesh’s appeal against the December 27 order of the High Court would meet a formidable opponent in the form of a 2010 Constitution Bench judgment of the Supreme Court in K. Krishnamurthy versus Union of India, which had clearly held that the “nature and purpose of reservation in relation to local bodies is considerably different from that in relation to higher education and public employment”.
“The reservation benefits contemplated by Articles 15(4) and 16(4) [reservation in higher education, public employment] cannot be mechanically applied in the context of reservation enabled by Articles 243-D and 243-T [reservation of seats in panchayats, municipalities]. Articles 243-D and 243-T form a distinct and independent constitutional basis for reservation in local self-government institutions, the nature and purpose of which is different from the reservation policies designed to improve access to higher education and public employment, as contemplated under Articles 15(4) and 16(4) respectively,” the Constitution Bench had held in 2010.
The court had explained that though social and economic sense could act as a barrier to effective political participation and representation, such backwardness cannot be the sole criterion for identifying the backward classes inadequately represented politically.
The Constitution Bench had concluded that there was an “inherent difference” between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level.
“While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local self-government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to,” it had held.
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In fact, unlike reservation in higher education and public employment, the ‘creamy layer’ in backward classes is not excluded from quota in political representation. “There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the “creamy layer” may be feasible as well as desirable in the context of reservation for education and employment, the same principle cannot be extended to the context of local self-government,” the court had said.
A further obstacle for the State would be a 2021 three-judge Bench judgment of the Supreme Court in Vikas Kishanrao Gawali vs. State of Maharashtra, which had devised the triple-test criterion to collect contemporaneous rigorous empirical investigation into the patterns of backwardness that act as barriers to political participation. The three pre-conditions include setting up a dedicated commission to conduct the empirical enquiry, specifying the proportion of reservation local body-wise and limiting the aggregate to 50% of total seats reserved in favour of the Scheduled Castes/Scheduled Tribes/Backward Classes taken together.
The court has also made it clear earlier this year in Suresh Mahajan versus State of Madhya Pradesh that no reservation for backward classes can be provided until the triple-test conditions are completed, and seats, except those reserved for the Scheduled Castes and the Scheduled Tribes, must be notified for general/open category. This is exactly what the Allahabad High Court has directed on December 27 in its order while noting that Uttar Pradesh “is treating the nature of backwardness requisite for providing reservation in admission to educational institutions and public employment as the requisite backwardness for providing reservation to seats and offices of the chairpersons in the municipal bodies”.