SC notifies 27% OBC seats in Maharashtra local body polls as general ones

The Supreme Court on Wednesday directed the State Election Commission of Maharashtra to notify 27 per cent seats in the local body, which were reserved for the Other Backward Classes, as general category so that the poll process can be taken forward.

The apex court had on December 6 stayed till further orders the local body election in Maharashtra on seats reserved for the OBCs and had made it clear that the poll process for the other seats would continue.

A bench of Justices A M Khanwilkar and C T Ravikumar, which was hearing an application filed by Maharashtra government seeking modification of last week’s order, directed the SEC to issue fresh notification for the 27 per cent seats within a week.

”In other words, the SEC must immediately issue fresh notification for the 27 per cent seats, reserved for OBC, as general category and initiate the election process for these seats along with the election process, already on its way for the remaining 73 per cent of seats, in the concerned local body,” the bench said.

The bench said it is not possible to countenance the arguments that without complying with the triple test, which is required to be followed before provisioning such reservation for OBC category, the state authority or SEC can be permitted to notify the seats for OBC in any local bodies.

The apex court had passed the order last week while hearing two pleas, including the one assailing the provisions inserted/amended through an ordinance permitting reservation for the category of backward class of citizens up to 27 percent uniformly throughout Maharashtra in the concerned local bodies.

In its order passed on Wednesday, the bench said there is no reason to modify the December 6 order in that regard.

It, however, said the hiatus cannot be continued for an indefinite period.

”As has been ordered in the case of, we would follow the same route by directing the state authority and the SEC to treat the notification issued for reservation for OBC as non-est in every local body, in which election are already notified, and to re-notify those seats for general category so that election to those seats can also be taken forward as per law along with the election of remaining 73 per cent seats, on which the process is already on its way,” the bench said.

It said the SEC must declare the result of both the elections on the same day local body wise.

The top court said this direction would apply even to the by-elections of the concerned local bodies.

It said the SEC's counsel wanted clarification as to whether these directions would apply in this election or should govern future poll also.         

”We fail to understand this confusion in the mind of the State Election Commission. The three-judge judgment makes it amply clear that it should be the regime applied to all future elections and that needs no further clarification,” it said.

It said any petition pending before the high court on the subject matter shall stands transferred to the apex court and the interim orders passed in those proceedings, if any, shall stand modified in terms of today's order.

The court, while disposing of Maharashtra's application, said this arrangement is subject to outcome of the proceedings before it.

It posted the matter for hearing on January 17.

During the hearing, senior advocate Mukul Rohatgi, appearing for Maharashtra, said the election on 73 per cent seats will still render inoperable some of those local bodies where the OBC must come by way of rotation.  

He said Maharashtra has a huge number of OBCs and if the court is of the view that stay on election on 27 per cent seats should remain because of lack of data, the bench may consider staying the entire election process.

”Don't have partial election. You have granted a partial stay. I am saying let there be a complete stay, let there be no election for six months. We will fast track the commission which we have appointed,” he said.

The bench observed that there are two option -- either to direct the SEC to notify the 27 per cent seats which was reserved for the OBC as general category seat or not to hold election on these seats for six months, as suggested by the state, and in the meantime the exercise of the commission and decision on that basis would come.

”It is 27 per cent of constituencies across the state. It will be unrepresented. That is not acceptable,” the bench observed.

Rohatgi requested the bench to stay the entire election till March and list the matter in April.

While hearing the matter on December 6, the apex court had observed that a similar issue had come up earlier before it and a three-judge bench had delivered a judgment in which the court had noted the triple test to be followed before provisioning such reservation for the OBC category.

It had noted that this was a reiteration of the exposition of the Constitution bench on the issue of quantum of the reservation to be provided for OBCs.

In March this year, the apex court had said that reservation in favour of OBCs in local bodies in Maharashtra cannot exceed an aggregate of 50 percent of the total seats reserved for Scheduled Castes, the Scheduled Tribes and OBCs taken together.

It had referred to the triple condition noted in the Constitution bench verdict of 2010, including 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.