Tuesday, February 7, 2023

OBC quota in Local Body Polls: Supreme Court rejects Maharashtra’s interim report

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The Supreme Court on Thursday rejected the interim report submitted by the State commission nominated by the state of Maharashtra, which recommended 27 percent reservation in favour of OBCs in local bodies elections in the State of Maharashtra.

The Counsel appearing for the commission submitted that there is sufficient data to implement 27 percent in the reservation.

Justice A.M. Khanwilkar said, commission should have pressed upon getting an authentic data, how does the commission know that its current data and it is authentic.

The bench recorded in its order,

“In terms of order dated January 19, 22 the State commission nominated by the State of Maharashtra has submitted interim report which purportedly dated… submitted to state of Maharashtra on February 5, 2022. That report has been assailed in the WP as being perfunctory and non- compliant with the directions issued by this court including the governing decision in the case of Krishnamoorthy… constitution bench and Vikas Kishanrao Gawali vs State Of Maharashtra and Ors judgement. The report itself mentions that the same is being prepared in absence of empirical study and research by the commission. Having failed to do so….of the principals in the abovementioned decisions. As a result it is not possible to permit any authority much less than the state election commission to act upon the recommendations made. For the time being, we do not intend to dilate on the correctness of each of the observations made in the interim report of the commission. However we direct not to act on the report. Open to the commission to continue its exercise of conducting necessary study and collating contemporaneous empirical data, local body wise and submit its interim report as and when it becomes ready after proper consideration. The rationale must stand the test of constitutional scrutiny.”

The Court further noted, the Directions in relation to the local self governments where elections are overdue, it is stated that in respect of 300 gram panchayats, 500 MCs, and 200 Municipal councils, elections are overdue. We direct the state election commissions to comply with the directions given by this court in order dated 15th December 2021 and restated on 19th January 2022 with regard to elections of OBCs in local self gov, and be notified as General seats. The counsel for state election commission submits that they have commenced the process and will notify the election program in respect of such local bodies with utmost dispatch.”

During the hearing today Senior Advocate Vikas Singh appearing for the petitioner submitted that, It is quite conceivable that in some localised setting, backwardness in the social and economic sense can also act as barrier to effective political participation and representation. There is an inherent difference between the nature of benefit that accrues from access to education and employment on one hand and political representation on the other. The former increases socio-economic upliftment, participation in the local self-government is intended as a more immediate measure of empowerment of the community. No guidance provided to identify backwardness, no principle specified with regard to quantum of reservation. Gist of objection is that since most of the OBC groups are already well represented in the Political Space there is no principled basis for conferring reservation benefits. It does not meet the test of reasonable classification. One of the concerns is that political parties will use this for vote bank politics. Excessive an disproportionate reservation provided by the State. The first test in triple tests are (1) establish a Commission to conduct rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State. It is also incumbent upon the executive that the reservation policies must be reviewed from time to time so as guard against over breadth. Chinnapa Reddy Commission Report stated In the absence of updated empirical data it is upon the courts to decide whether the reservation is in proportion or not…Empirical data will have to be looked at, panchayat wise and municipality wise. Why are they shying from that data? If you show the data of a particular district and it shows that the representation of OBCs in that particular district is less than the other, then you are justified….

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Vikas Kishanrao Gawali vs State Of Maharashtra and Ors LL 2021 SC 13 regarding reservation in local bodies. The second and third test are- (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. There should be an enabling provision where they have to decide on every election for every local body, whether there should be reservation or not. Ideally the past performance in every state has been that these OBCs are far more represented than their percentage and that is why they are shying from that data. Reservation cannot be done without contemporaneous data and has to be done local body wise. You may have certain local consideration to provide reservation in a particular area. There cannot be reservation for the entire state. The data has to be of the people elected in past elections without reservation. Then only you can compare. That data they have but not placing before the commission. The commission only relies upon the SARAL data and…

Justice Khanwilkar- The contemporaneous has to be local body wise.

Vikas Singh – This is for educational institution and not of election representation.

Khanwilkar- The data is not forthcoming.

Vikas Singh- They admit that the data is in absence of empirical construct..

Justice Khanwilkar- The three-Judge Bench to which I was a party, reiterated the judgement of the Constitutional bench that political participation data has to be collected. Reservation should be local bodywise and not a general one for the entire state. The commission must work independently not under the chairmanship of anyone.

Senior Advocate Shekhar Naphade for respondent State of Maharashtra because of shortage of time, the commission could not go local body wise as data is enormous. The pol backwardness is also represented in the data submitted by govt to the commission. For exp- education. These are some of parameters on which the commission can judge the political backwardness. But the exact figure has to be taken from the commission. Submitted that there is independent reliable data.

Justice Khanwilkar- We left it to the Commission to verify this data and provide two weeks’ time for the same.

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Senior Advocate Shekhar Naphade- In order to come to conclusion about political backwardness, the reference to other parameters can also help.

The examination of data is an ongoing process and the Commission feels that there can be a justification of 27 percent and this is based not merely on state government data. The sources are, the 2019 data, the SARAL data which is updated every year and National Family health survey.

Justice Khanwilkar- Where is the authenticity of data, on which the Commission wants to rely. The Commission must have requested for official documents, authenticated by some authorised officer.

Senior Advocate Shekhar Naphade- Authenticity is not in dispute.

Justice Khanwilkar- Just because the data is given in someone’s presence, it is authentic? This is how official work is done.

Justice Dinesh Maheswari – What is the analysis/ consideration? Where is the logic? A single line to show that this data/report is to be accepted.

Justice AM Khanwilkar- The rationale is not spelt out at all.

Justice CT Ravikumar- The interim report is in contravention to this court’s direction. you were supposed to do empirical study but you say that in the absence of it..

Senior Advocate Vikas Singh- no data regarding political particiation of OBCs in local bodies is given.

Justice Khanwilkar- this data is essential to determine political participation.

Senior Advocate Vikas Singh- My prayer is that the interim report does not satisfy the triple test.

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The Supreme Court has struck down the recent 27% reservation in favour of OBCs in local bodies made by the State Governments of Maharashtra and Madhya Pradesh on 15.12.2021 in Special Leave Petition to Appeal (C) No. 19756 of 2021 – Rahul Ramesh Wagh v/s The State of Maharashtra.

The Ministry of Social Justice and Empowerment, in its press release issued on 20th December 2”21, stated,

“Central Government is concerned of the matter and is examining the issue in its entirety taking into account the opinion of all stakeholders viz. M/o Panchayati Raj, M/o Parliamentary Affairs, D/o Legal Affairs and the Ministry of Home Affairs. In this connection, States are being advised to follow the reservation policy as per provisions of the constitution in the election to the local bodies after observing all the criteria set forth by the Supreme Court. Government is also considering moving a Review Petition before the Hon’ble Supreme Court to allow political reservation of OBCs in the local Bodies/Municipal Corporations for the time being till the States comply with the triple test criteria set forth by the Supreme Court.

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