'Don't Renotify Election Procees For 367 Local Bodies To Implement OBC Quota' : Supreme Court Warns Maharashtra State Election Commission Of Contempt

The Supreme Court, on Thursday, came down heavily on the Maharashtra State Election Commission, as it was apprised that the State Election Commission has proposed to announce 'fresh election programme' for the 367 local bodies for which the election process had already been notified.

A Bench comprising Justices A.M. Khanwilkar, A.S. Oka and J.B. Pardiwala made it abundantly clear that the State Election Commission (SEC) 'cannot and shall not' re-notify the election programme so as to provide reservation in respect of these 367 local bodies. It indicated if the same is not complied with the Court would be compelled to take action against the SEC and other concerned persons.

"The SEC cannot and shall not re-notify the election programme so as to provide reservation in respect of 367 local bodies referred to in the affidavit before this Court on 8.6.2022. In case of any breach of this direction, the SEC and all concerned may be personally responsible including for action of having committed contempt of the directions issued by this Court."

The Bench also observed that its order dated 20.07.2022 is being misread by the respondents. It was clarified that the SEC is to complete the election process with respect to the 367 local bodies, without OBC reservation in terms of the report of the Dedicated Commission. However, considering constituency-based exigencies SEC can re-align the dates of the notified elections.

"We have no hesitation in observing that the understanding of the respondent wrt our order dated 20.07.2022 to say the least is misreading of the direction contained therein. The SEC in terms of that order is obliged to complete the election process which has already been notified wrt 367 local bodies on the date of that order…The only liberty given to the SEC is to re-align the dates of the election programmes already notified subject to certain exigencies in the respective constituencies."

The State of Maharashtra had approached the Bench seeking correction in the order dated 20.07.2017. In the said order the Bench had allowed OBC reservation, as recommended the Backward Classes Commission,  in the local bodies(where election process was yet to be notified) within a period of two weeks. However, the Court clarified that OBC reservation cannot be implemented in the 367 local bodies where election process has already been notified.

Senior Advocate, Mr. Shekhar Naphade appearing for the State of Maharashtra informed the Bench that the statement of SEC recorded in the order dated 20.07.2022 might not be accurate. The relevant statement is extracted below -

"Learned counsel appearing for the Election Commission has pointed out that as of today, election programme in respect of 367 local bodies has already commenced and the same will be continued and taken to its logical end, in due course."

Naphade submitted that the said statement was recorded on the basis of the affidavit submitted by SEC on 8. 7.2022. But, on 14.07.2022, due to heavy rainfall in the State, for 92 Municipal Councils and 4 Nagar Palika, the election was deferred.

"The 8th July position was correct, but on the 14th because of an extraordinary rain situation, 92 Municipal Council and 4 Nagar Palika, they postponed the election."

Justice Khanwilkar was of the view that the election for the 367 local body had commenced and deferment should not disturb the election process. He reckoned that the SEC can only re-align dates; but not re-notify election programmes.

"The date has just been deferred, the rest of it will be there. The election programme commences from the date of the first notification. For monsoon and flooding dates can be realigned. For those local bodies we will not interdict we had made it clear."

Mr. Naphade insisted, "They changed the entire programme."

Justice Khanwilkar restated -

"They cannot change the program; they can only change dates. We have very clearly said that no fresh notification can be issued. If you (SEC) are doing that we will have to say you are doing it mischievously. We were very clear that if the election programme has commenced we are not interdicting, you are free to change dates of nomination, voting and counting."

The Counsel for the SEC submitted that it had sought clarification only with respect to the monsoon situation in the State.

Justice Khanwilkar stated that if it is so the Court would reject SEC's request.

He added that as the election process was notified for the 367 local bodies much prior to the order of the Court dated 20.07.2022, whereby OBC reservation was permitted in terms of the report of the dedicated Commission, the election programme with respect to these local bodies would go on without reservation.

"You (SEC) cannot change the entire programme.There cannot be reservation for these local bodies. We have said that repeatedly."

Mr. Naphade submitted,

"SEC says that a fresh programme will be announced. So on this basis I am here."

Justice Khanwilkar was livid that even after clarifying the position in this regard on multiple occasions, the Court's order is being misinterpreted by the respondents to suit their own convenience.

"That is an absolutely incorrect stand. SEC had no business to take that position. Then we are issuing contempt notices to the SEC. This matter is going on for the last one year now. This is not acceptable. You are trying to misread our order at your own convenience."

Justice Oka added that the SEC now wants to add reservation as per the Commission's report for these 367 local bodies, which is not permissible.

"Now they want to add reservation of the Committee; that cannot be done."

[Case Title: Rahul Ramesh Wagh v State of Maharashtra]

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