The Supreme Court on Thursday read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which means reservation in favour of OBCs in the concerned local bodies to be notified to the extent that it does not exceed aggregate 50 percent of the total seats reserved in favour of SCs/STs/OBCs taken together.
The bench comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi was hearing a petition seeking a declaration that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is ultra vires to the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution of India.
In addition, the petitioners also challenged the validity of the notifications dated July 27, 2018 and February 14, 2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 percent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and
Bhandara and prayed that the same be quashed and set aside.
The petitioners relying on the Constitution Bench case of the Supreme Court in K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr argued that it is no more open to the respondents to reserve more than 50 percent (aggregate) seats in the concerned local bodies by providing reservation for Scheduled Castes3/Scheduled Tribes4/Other Backward Classes.
Whereas, the respondent State urged that the stated decision recognises that it is permissible to reserve seats for OBCs to the extent permissible in the 1961 Act. Further, in an exceptional situation, the reservation for SCs/STs/OBCs in the concerned local bodies (Zilla Parishads and Panchayat Samitis) could exceed even 50 per cent of the total seats.
The bench, however, observed that “the provision in the form of Section 12(2)(c) can be saved by reading it down, to mean that reservation in favour of OBCs in the concerned local bodies may be
notified to the extent, that it does not exceed 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.
In other words, the expression “shall be” preceding 27 per
cent occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court.
On such interpretation, Section 12(2)(c) can be saved and at the same time, the law declared by the Constitution Bench of this Court can be effectuated in its letter and spirit.”
The Court further observed that the argument of the respondent state that the reservations in favour of OBCs must be linked to population, is very wide and tenuous. That plea if countenanced will be in the teeth of the dictum of the Constitution Bench of this Court wherein it has been noted and rejected.
The court further pointed out that it is indisputable that the triple test/conditions required to be complied by the State before reserving seats in the local bodies for OBCs have not been done so
far. The three conditions required are to
(1) to set up a dedicated Commission to conduct a 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; and
(3) in any case, such reservation shall not exceed the aggregate of 50 per cent of the total seats reserved in favour of
SCs/STs/OBCs taken together.
“In a given local body, the space for providing such reservation in favour of OBCs may be available at the time of issuing election programme (notifications). However, that could be notified only upon fulfilling the aforementioned preconditions. Admittedly, the first step of establishing a dedicated Commission to undertake rigorous empirical inquiry itself remains a mirage. To put it differently, it will not be open to respondents to justify the reservation for OBCs without fulfilling the triple test, referred to above”
-observed the bench.
The bench partly allowing the petition to read down the said provision and quashed the impugned notifications.