Maharashtra Local Body Elections |'Reservation Can't Exceed 50 Percent, Our Order Misconstrued By Officers': Supreme Court

In the Maharashtra local body elections matter, the Supreme Court today orally expressed that total reservation was not permitted by it to exceed 50 percent and that the state authorities seemingly misconstrued its order.

A bench of Justices Surya Kant and Joymalya Bagchi heard the matter.

Underlining that the Court did not pass an order permitting reservation to exceed 50%, Justice Kant said during the hearing,

"We are very clear about this part. When we said elections are to be conducted as per existing law, the law was very clear. The judgement of this Court that was holding the field clearly said that reservation cannot exceed 50%. One of the reasons given by this court was that this exercise of identifying was not undertaken. For that, Banthia Commission was constituted. Commission's report itself is under challenge. So therefore that issue whether Banthia Commission report can be accepted or not, and if it is accepted based on that whether reservation can exceed 50% or not, are issues which will be examined by this Court at the time of final hearing. There is an earlier unamended law of the state saying that reservation can only be confined to 50%."

Justice Bagchi, on his part, opined, "we indicated that pre-Banthia situation may prevail. but does it mean 27% across the board? if it is so, our direction actually militates against earlier orders passed in the same matter because there, a bench presided by Justice Khanwilkar stayed 27% notification. When we said law, we meant these 27% wherever it is fitting into the 50% threshold...if it crosses the 50% threshold to the extent it reaches 50%...otherwise, what would happen is, this order will go against the grain of the other order."

Pointing to the May 6 order of the Court, Justice Kant further noted that elections were directed to be held as per situation prevailing before Banthia Commission report. The judge added that there was a 3-judge bench order of the Court pertaining to Maharashtra and unless that is considered, the 2-judge bench will perhaps not be in a position to issue a contrary direction.

For context, on May 6, the Court had directed that the elections to the local bodies be held as per the OBC reservation which existed prior to the submission of the Banthia Commission report in July 2022. "The reservation shall be provided to the OBC communities as per the law as it existed in the State of Maharashtra before the 2022 report of the JK Banthia Commission," the Court had observed.

Today, Solicitor General Tushar Mehta highlighted that the elections are underway and the nomination-filing is set to commence tomorrow. It was further his contention that the issue whether reservation can exceed the aggregate of 50% was recorded by the Court in its May 6 order as an issue arising for consideration, and yet, elections directed to be conducted.

When the SG sought time to file a reply, Justice Kant said meanwhile reservation may not be allowed to exceed 50%. "Please don't implement it beyond 50%. Because then not only matter will become infructuous, if the elections are allowed to be conducted beyond 50%...", the judge remarked.

"I don't know what would be the repercussions", replied the SG, while insisting on being given time and suggesting that the developments till the next date be subject to the final outcome on the next date.

Ultimately, as Justice Kant dictated issuance of notice on an application, Justice Bagchi told the SG, "please indicate to us to what extend and in how many municipalities the 50% threshold is crossed". Senior Advocate Vikas Singh responded to this by saying "40%". He also referred to the Vikas Kishanrao Gawali case, where the Supreme Court struck down the 27% OBC reservation given under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 on the ground that it resulted in the breach of 50% cap.

Justice Kant also remarked that the applicants were right in saying that the orders of the Court were being misconstrued. "We never allowed more than 50%!" exclaimed the judge.

When a counsel emphasized that the election process has already commenced, Justice Kant cautioned, "If process is the plea, then we are staying today. Then we will not allow the election to take place. We have permitted that elections be conducted. We will still ensure that they are conducted. But not contrary to the judgment of the Constitution bench. Don't push me and my brother to pass orders which run contrary to the Constitution Bench!"

At one point, Senior Advocate Narendra Hooda pointed out that reservation is going upto 70% in some cases. "That can't be permitted", said Justice Kant categorically. Justice Bagchi also supplemented, "Not in respect of OBCs. Constitution Bench is very clear. [Reservation] cannot cross 50% with respect to OBCs".

The bench also repeatedly impressed upon the SG to defer nominations till the next date. When he assailed the timing of the plea before the court, Justice Kant said, "they (applicants) came the moment they misconstrued our orders or tried to take undue advantage of our order. There is contempt also. We are not serious today on contempt but our very simply order has been made complicated by the officers."

At last when the judge again suggested that nominations be deferred till day after, the SG said, "No, no. What I am suggesting is whatever happens will be subject to what your lordships decide day after".

Case Title: RAHUL RAMESH WAGH Versus THE STATE OF MAHARASHTRA AND ORS., SLP(C) No. 19756/2021 (and connected cases)