"State Doesn't Fulfill Triple Test Formality": Allahabad HC Directs SEC To Notify ULB Polls Without OBC Quota, Include Women Quota

In a significant decision, the Allahabad High Court has directed the State Election Commission to immediately notify the Urban Local Body Polls without OBC reservation. The court ordered thus as it held that the state government doesn't fulfill the Triple Test Formality as laid down by the Apex Court.The bench of Justice Devendra Kumar Upadhyaya and Justice Saurabh Lavania also ordered that Polls notification shall include the reservation for women in terms of the constitutional provisions."While notifying the elections the seats and offices of Chairpersons, except those to be reserved for Scheduled Castes and Scheduled Tribes, shall be notified as for general/open category. The notification to be issued for elections shall include the reservation for women in terms of the constitutional provisions," the Court direcetd.Significantly, the state has also been directed to consider the claim of transgenders for their inclusion among the Backward Class of citizens once a dedicated Commission is constituted for undertaking the exercise of conducting the empirical study as to the nature and implications of Backwardness for the purposes of providing reservation to the Backward Class of citizens in the context of elections to the urban local bodies.With this, the bench quashed the draft notification issued by the Uttar Pradesh government on December 5 expressing its intent to conduct Urban Local Body Elections after reserving 4 mayor seats in the state for Other Backward Classes (OBCs) despite not fulfilling the 'triple test' formalities as prescribed in the case of Vikas Kishanrao Gawali v. State of Maharashtra & Ors. LL 2021 SC 13 by the Top Court, to determine the political backwardness of OBCs.The verdict's implication 👇- The UP Government's (@UPGovt ) proposal to provide for OBC quota in #UPNagarNikayChunav has been quashed.Reason?Because it doesn't fulfill the 'Triple Test' Formality (as laid down in Apex Court's Vikas Kishanrao Gawali case) https://t.co/fazJXkNt2x— Live Law (@LiveLawIndia) December 27, 2022It may be noted that the court's decision comes in a bunch of pleas challenging the Government's draft notification to provide for OBC quota in the elections without filling the triple test formality.For context, in the Vikas Kishanrao Gawali case, the Apex Court had noted that a triple test is to be followed before provisioning reservation for the OBC category. The said triple test involves(1) setting 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) specifying 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) not exceeding an aggregate of 50 percent of the total seats reserved in favour of SCs/STs/OBCs taken together.The Allahabad High Court noted that the UP Government didn't constitute any dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies and without such data being available, providing quota for OBC was not valid."8.43 It is not a case where the State has set up the dedicated Commission for conducting the empirical study into the nature and implications of backwardness for the purposes of providing Page No.82 reservation to Backward Class of citizens in the local selfgovernment institutions and thereafter made necessary changes in the statutory prescriptions. Thus, the State has completely failed to comply with the dictum and directions of Hon'ble Supreme Court in the judgments contained in K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra)," the Court remarked (emphasis supplied)The Court also stressed that the State cannot be permitted to flout the dictum of the Supreme Court mandating the governments to take a relook at its policies including the Legislative policies with regard to reservation in local self-government bodies."Accordingly, State of Uttar Pradesh was under an obligation to re-frame its policy including by way of having a fresh look at its Legislative prescriptions in tune with the law declared by the Constitution Bench of Hon'ble Supreme Court in the case of K. Krishna Murthi (supra) and also in the case of Vikas Kishanrao Gawai (supra). The State has, however, failed to re-frame its policies according to the mandate of Hon'ble Supreme Court even after a lapse of a period of 12 years hence the plea that the petitioners are not entitled to the relief as claimed in these writ petitions as there is no challenge to the State enactments, is not tenable," the Court ruled.Consequently, in its order, the Court issued the following directions (A) Notification dated 05.12.2022, issued by the Government of Uttar Pradesh, in the Department of Urban Development, under section 9-A (5)(3) is hereby quashed.(B) The Government Order dated 12.12.2022, issued by ...

"State Doesn't Fulfill Triple Test Formality": Allahabad HC Directs SEC To Notify ULB Polls Without OBC Quota, Include Women Quota

Sparsh Upadhyay

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