Patna High Court Holds OBC/EBC Quota In Bihar Municipal Body Polls Illegal, Directs SEC To Renotify OBC/EBC Seats As General Category

In a significant decision, the Patna High Court on Tuesday held that the reservation of seats for Other Backward Classes (OBC) and Extremely Backward Classes in urban local body elections were illegal. The Court categorically held that providing for the quotas in question had "failed two out of three tests" set by the Supreme Court in the case of Vikas Kishanrao Gawali v. State of Maharashtra & Ors. LL 2021 SC 13 to determine the groups' political backwardness. Further, the bench of Chief Justice Sanjay Karol and Justice Sanjay Kumar directed the State Election Commission (SEC) to re-notify seats reserved for the Other Backward Classes (OCB) in the local polls as general category seats. Pursuant to the Court's order, the SEC has issued a notification postponing the first and second phases of the local polls scheduled for October 10 and 20, respectively. Significantly, in its order, the High Court has also criticized the State Election Commission (SEC) by directing it to review its functioning as an autonomous and independent body, not bound by the dictates of the Government of Bihar. Our readers may note that this order comes days after the Supreme Court requested the Chief Justice of the High Court to take up the plea pertaining to the OBC reservation in the upcoming municipal body polls in Bihar. Essentially, the Supreme Court had specifically requested the Patna HC to see to it as to whether the three-fold test, as laid down in Vikas Kishanrao Gawali case, stood followed and complied with in the conduct of election to the numerous "Municipalities" in the State of Bihar or not? Read more about the Court's observations here: Supreme Court Requests Patna HC To Hear Petition Seeking OBC Reservation In Bihar Municipal Body Polls By Sep 23 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 case in brief On April 1, 2022, the Government of Bihar sent a letter to the State Election Commission (SEC) apprising it that as per the advice of the Law Department there is no hurdle in commencing with the election program for the municipal bodies in the State. In view of the same, the SEC was asked to initiate the election process. Though the SEC reminded the Government of the need to make suitable mechanisms, administrative as well as legislative, for complying with the directions of the Apex Court, the Government did not act upon the suggested measures. Against this backdrop, the petitioners challenged the communication of April before the Patna High Court seeking directions to the State Government and other concerned authorities to implement the triple test directions issued by the Apex Court in the Vikas Kishanrao Gawali case. "Two out of three tests not complied with" Hearing the pleas before it, the High Court noted that Government did not entrust any work to a dedicated Commission, undertaking the task of conducting an empirical inquiry into the nature and implication of political backwardness of the EBC or OBC category for the purpose of the reservation to the election of municipalities and thus, the Court held that the Government failed to comply with the first prong of the three-fold test. Regarding the second test, the Court noted that without collecting empirical data or conducting a study, also about the political backwardness, the Government directed the SEC to carry out the exercise of reserving seats purely based on population, and that too, perhaps for the EBC category which, the Court held, cannot be the solitary basis for providing reservations. With this, the Court held that the Government had failed to establish compliance of the Second Test Principle of "specification of the proportion of reservation required in light of the recommendations of the Commission". Regarding the third test, the Court did not find any material on record indicating that the impugned action of providing reservation through various notifications/circulars/orders to be in excess of the combined upper limit of 50 percent for all categories/classes/persons. "Election Commission not subservient to the Government" The High Court observed that in the instant case though the State Election Commission did, through various communications, inform the Government to comply with the Apex Court's...

Patna High Court Holds OBC/EBC Quota In Bihar Municipal Body Polls Illegal, Directs SEC To Renotify OBC/EBC Seats As General Category

Sparsh Upadhyay

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