Bihar Municipal Polls 2022| What Yardsticks Were Adopted By Dedicated Commission For Fulfilling 'Triple Test'?: High Court Asks State Govt

Hearing a writ plea challenging the Bihar Municipal Polls 2022 and the report of the dedicated Commission constituted by the state government to study the representation of Other Backward Classes (OBCs) in urban local bodies, the Patna High Court last week sought Bihar Government's affidavit on several issues.

The Bench of Justice Satyavrat Verma asked the state to specify on what basis the Dedicated Commission carried out a survey to ensure adequate reservation for OBCs in the State Urban Body Polls by fulfilling the “triple test” formality as mandated by the Supreme Court.

The Bench also directed the state government to file its response on the following points:

• What yardsticks were adopted by the Commission for carrying the triple test?
• Whether the Dedicated Commission took any cue from its earlier report which it had prepared with respect to Extremely Backward Classes for the purpose of Public Employment and in Education or not.
• Terms Of Reference notified to the Commission for carrying out the exercise of the triple test as mandated by the Hon’ble Supreme Court.
• Whether the Dedicated Commission while preparing its report took into consideration the order passed by the Hon’ble Supreme Court including the case of Suresh Mahajan Vs. The State of Madhya Pradesh and Another or not.

For the uninitiated, the triple test formality for Local Body elections was made mandatory by the Apex Court in the case of Vikas Kishanrao Gawali case, wherein the Top Court had noted that a triple test is to be followed before provisioning reservation for the OBC category. The said triple test involves

The background of the case

It may be noted that in October last year, the Commission for the Extremely Backward Classes was notified as the dedicated commission to carry out a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies within the state.

The commission was notified days after the Patna High Court held that the reservation of seats for Other Backward Classes (OBC) and Extremely Backward Classes in urban local body elections were illegal since these were not based on the report of a Dedicated Commission.

The Court had also 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.

Significantly, in its order, the High Court had 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.

However, since the Government, after HC's order, notified a commission for the purpose of completing the triple test, therefore, the SEC waited for the commission's report and after the same was filed in November 2022, the SEC immediately announced the Poll Schedule and thereafter, on December 18 and 20 the voting took place.

The plea before the Court

The Court is essentially dealing with a plea moved by Harinarayan Sharma questioning the Dedicated Commission constituted by the Government for the purposes of holding a Municipal Election in the year 2022, based on the orders passed by the Supreme Court and the Court.

The Petitioner's counsel SBK Mangalam argued that the Court has to look into the question as to whether the Municipal Elections were held after confirming the triple test and whether the Extremely Backward Commission could have been constituted as a Dedicated Commission for the purposes of carrying out the triple test.

It was also contended that it has to be seen as to whether the Dedicated Commission carried the triple test as mandated by the Hon’ble Supreme Court and if it did not do so, then the entire Municipal Election held in the year 2022 will be impacted.

The writ plea also prays for a direction to the respondent authorities to place on record the Extremely Backward Class Commission report submitted to the State Government regarding the triple test for the purposes of extending the benefits of reservation to the members of the extremely backward class in the Municipal Elections, 2022 in the State of Bihar.

The plea also contends that the so-called Dedicated Commission submitted the report, without conducting any survey in the municipality concerned on the spot and submitted an imaginary report based on table work.

The plea also prays to quash the notification dated November 30, 2022, issued by the State Election Commission whereby the State Election Commission rescheduled the date of Municipal Elections in the State of Bihar on the basis of the recommendation of the Extremely Backward Class Commission-cum-Dedicated Commission.

The plea submits that the report prepared by the Commission is not in the public domain and also, it was not possible for the Commission to identify backwardness so hurriedly rather than within four weeks of its formation.

Considering the submissions made by the counsel for the petitioner, the counsel for the State Sayed Hussain Mazid was given time to file a counter affidavit on the aforementioned issues. The matter will now be heard on May 15.

Case title - Harinarayan Sharma vs. The State of Bihar & Ors. [Civil Writ Jurisdiction Case No.17053 of 2022]

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