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

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 directions laid down in various cases including the triple test laid down in the Vikas Kishanrao Gawali case, however, despite Government's inaction, the SEC initiated the election process by providing reservation to the OBC category.

Stressing that the Election Commission is not subservient to the Government, the Court noted that the SEC, in the instant case, did not revise its opinion, did not seek any legal opinion before acting on the government's dictate and even did not seek recourse to any legal remedy.

Court's Order/Concluding observations

The Court held that the State of Bihar did not undertake any exercise by which the criteria adopted for providing reservations under socio-economic/ educational/ services have been adopted for the purposes of ensuring electoral representation of Other Backward Classes, including Extremely Backward Classes.

As such, the Court held thus:

• The action of the Government as also the Election Commission in reserving the seats for the OBC/EBC category for election to all the municipal bodies in the State of Bihar, governed under the Bihar Municipal Act, 2007 (Act No. 11 of 2007), sans compliance of the dictum laid down by the Supreme Court in Sunil Kumar v. The State of Bihar & Ors; K. Krishna Murthy & Ors. v. Union of India & Ors; Vikas Kishanrao Gawali LL 2021 SC 13; Suresh Mahajan v. State of M.P. 2022 LiveLaw (SC) 463; Rahul Ramesh Wagh v. The State of Maharashtra; Manmohan Nagar v. The State of Madhya Pradesh, to be illegal.
• The Secretary, State Election Commission, to carry out the elections only by immediately re-notifying the seats reserved for the OBC Category treating them as general category seats.
• The State of Bihar may consider enacting a comprehensive legislation pertaining to reservations in elections to local bodies, urban or rural, to bring the State seamlessly in line with the directions issued by the Apex Court in the above-mentioned cases.