Supreme Court Stays 27% OBC Reservation In Maharashtra Local Body Elections

The Supreme Court on Monday stayed the 27% reservation for the Other Backward Classes in the local body elections until further orders.

A bench comprising Justices AM Khanwilkar and CT Ravikumar passed the order in writ petitions filed challenging the Maharashtra Ordinance which introduced 27% OBC quota in the local body elections and the consequent notifications issued by the State Election Commission to give effect to the same.

The bench observed that the 27% OBC Quota could not have been implemented without setting up a commission and without collecting data regarding inadequacy of representation local government wise.

"Without setting up of commission to collect data local government wise, it is not open to the State Election Commission to provide for reservation of OBC category. That is the 1st step which ought to have been done", the bench observed in the order.

The bench ordered that the State Election Commission cannot be permitted to proceed with the election program already notified in respect of OBC reservation category.  The rest of the election program can proceed for other reserved seats including general category, the bench clarified.

The bench also ordered that the SEC shall not notify the reserved seats in the OBC category for mid term or other general elections as the case be till further orders.

Tomorrow is the last date for filing nominations for the local body. Senior Advocate Vikas Singh appeared for the petitioner and Senior Advocate Shekhar Naphade appeared for the State Government.

The Court noted in the order that the State Government brought the Ordinance without following the triple tests laid down in Vikas Kishanrao Gawali v State Of Maharashtra and Ors LL 2021 SC 13 regarding reservation in local bodies. The 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;  (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.

It may be recalled that in the Vikas Kishanrao Gawali case, the Supreme Court in March this year had 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.

"Reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together", the bench had noted in that case. Incidentally, that judgment was also delivered by Justice Khanwilkar.

Later, in September this year, the State Government brought the Ordinance to amend the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and Maharashtra Village Panchayat Act for Zilla Parishads, Panchayat Samiti and Gram Panchayats.

"Considering the SC decision, it is clear that the reservation for OBC communities in local bodies no longer exists. To provide representation to the OBC community, it has decided to reserve 27% seats for the (OBC) community without exceeding the 50% total reservation quota in the local bodies' as an alternative solution, hence, proposed the amendments in Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and Maharashtra Village Panchayat Act. Since the state legislature is not in session and the governor is convinced with the urgency of the matter, this ordinance is promulgated", the State Government said while notifying the Ordinance.

This Ordinance and the election notifications were challenged in the writ petitions filed by Kisanrao Kundalikrao Gawali (Ex MLA and past president of Akola Zilla Parishad)  and Rahul Chetan Ramesh Wagh.

Considering these petitions, the bench led by Justice Khanwilkar observed that the Ordinance was brought to overcome the decisions of the Supreme Court. The bench did not accept the argument that the 27% OBC reservation is in accordance with the judgments of the Supreme Court.

"There were steps that were to be followed -constituting Commission, collection of  data  for municipal wise to provide reservation. Your political compulsions cannot be the basis to undo the judgement.  You suffer the consequences. if you had constituted the Commission, you should have waited for the data to be submitted. We are staying the elections of the reserved category. We don't want to complicate the same", Justice Khanwilkar orally told the State's counsel.

"As a matter of fact, the State Government has constituted a Commission vide Notification dated 29.06.2021... without waiting for its report and opinion, the State Government hastened the process by issuing Ordinance which clearly impinges upon the legal position expounded by the Constitution Bench of this Court and restated in subsequent 3 Judges decision in Vikas Kishanrao Gawali (supra).

As a result, the State Election Commission shall desist from proceeding with the Election Programme already notified in respect of reserved seats for "OBC category only", in the concerned local bodies.

The Election Programme in respect of all the local bodies across the State in respect of reserved seats for category Other Backward Class, shall remain stayed until further orders.

Rest of the Election Programme(s) can proceed for other reserved seats (viz., other than OBC), including general seats. The State Election Commission shall desist from notifying reserved seats for OBC category even in case of future elections to any local bodies — either mid-term or general elections, as the case may be, until further orders of this Court"

Arguments in the petitions

Details Of Writ Petition By Kisanrao Kundalikrao Gawali (Ex MLA and past president of Akola Zilla Parishad)

The petitioner argued that the State Government proceeded with the 27% data without procuring the data regarding backwardness. The petitioners pointed out that the State of Maharashtra has in fact filed another writ petition seeking raw data of OBCs from the Centre as per the 2011 Census.