Can reservation for OBCs exceed upper ceiling of 50% in local elections for entirely scheduled areas? Supreme Court explains triple test pre-requisite

Supreme Court: The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked,

“State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

In the instant petition the validity of the notifications dated 27-07-2018 and 14-02-2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara had been questioned and it was prayed that the same be quashed and set aside. Relying on the dictum of the Constitution Bench in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, the petitioners had urged that it was not open to the respondents to reserve more than 50 per cent (aggregate) seats in the local bodies concerned.

Section 12 of the Act, 1961 had enabled the respondents to reserve 27 % of seats in the concerned Zilla Parishads and Panchayat Samitis. Section 12 of the 1961 Act is reproduced hereunder:

“(c) The seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 % of the total number of seats to be filled in by election in a Zilla Parishad and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad :

Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the persons belonging to the Backward Class of Citizens shall be 27 % of the seats remaining (if any), after reservation of the seats for the  Scheduled Tribes and the Scheduled Castes”

Position as laid down in K. Krishna Murthy v. Union of India

In the case of K. Krishna Murthy, the constitutional Bench had opined that Articles 243D(6) and 243T(6) of the Constitution were merely enabling provisions and it would be improper to strike them down as violative of the equality clause. That these provisions did not provide guidance on how to identify the backward classes and neither do they specify any principle for the quantum of such reservations. Instead, discretion had been conferred on the State legislatures to design and confer reservation benefits in favour of backward classes. The Bench stated,

“The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against over breadth.”

Further, the Bench observed that It would be safe to say that not all of the groups which had been given reservation benefits in the domain of education and employment need reservations in the sphere of local self government because

“The barriers to political participation are not of the same character as barriers that limit access to education and employment.”

Observation and Analysis

Regarding state legislations providing for reservation of seats in respect of OBCs, the Bench stated that state must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50% of the seats in the local bodies concerned. The foremost requirement was stated to be to collate adequate materials or documents that could help in identification of backward classes for the purpose of reservation by conducting a rigorous empirical inquiry into the nature and implications of backwardness in local bodies concerned through an independent dedicated Commission established for that purpose. The Bench explained,

“In case, constitutional reservation provided for SCs and STs were to consume the entire 50 per cent of seats in the concerned local bodies and in some cases in scheduled area even beyond 50 per cent, in respect of such local bodies, the question of providing further reservation to OBCs would not arise at all.”

Noticing that no material was on record as to on what basis the quantum of reservation for OBCs was fixed at 27%, when it was inserted by way of amendment in 1994 and that there was nothing on record that such a dedicated Commission had been set up, the notifications issued by the State Election Commission to reserve seats for OBCs in respect of which notifications had been challenged, the Court, by an interim direction, had allowed the elections to proceed subject to the outcome of the present writ petitions.

Triple Test for Reservation

Relying on the judgment in K. Krishna Murthy, the Bench reiterated the triple test required to be complied by the State before reserving seats in the local bodies for OBCs:

(1) To set up a dedicated Commission to conduct contemporaneous 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 over breadth;

(3) In any case such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.

“Shall be” to be interpreted as “May be”

Regarding the question of constitutionality of Section 12(2)(c) of the Act, 1961 as inserted in 1994, the Bench opined that the plain language of the provision indeed gave an impression that uniform and rigid quantum of 27% of the total seats across the State need to be set apart by way of reservation in favour of OBCs. Therefore, to maintain to strike a balance, the Court interpreted the words in a harmonious manner and directed that,

“The expression “shall be” preceding 27% occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together…”

Conclusion and Directions

In the light of above considerations, the Bench held that the impugned notifications suffer from the vice of foundational jurisdictional error, therefore, the same were void and without authority of law. Similarly, the elections conducted on the basis of such notifications concerning reserved OBC seats alone were held to be vitiated and non est in the eyes of law from its inception. Also, Noticing that the provisions similar to Section 12(2)(c) of the Act, 1961 find place in other State enactments concerning the establishment of local, the Bench clarified that,

“The view taken in this judgment would apply with full force to the interpretation and application of the provisions of other state Act(s) as well and the State Authorities must immediately move into action to take corrective and follow up measures to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy’s case for providing reservation in favour of OBCs.”

Lastly, the case was disposed of with the following directions:

1. State Election Commission must take follow up steps and notify elections for seats vacated in terms of this decision for the remainder tenure of Gram Panchayats and Samitis concerned;
2. Challenge to the validity of Section 12(2)(c) of the Act, 1961 was negatived and the same was directed to be read down to mean that it may be invoked only upon complying with the triple conditions;
3. All acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who had vacated seats in terms of this decision should not be affected in any manner and the judgment would take affect prospectively.

[Vikas Kishanrao Gawali v. State of Maharashtra,  2021 SCC OnLine SC 170, decided on 04-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: A.M. Khanwilkar

Know Thy Judge| Justice AM Khanwilkar