Supreme Court Requests Patna HC To Hear Petition Seeking OBC Reservation In Bihar Municipal Body Polls By Sep 23

"Since High Court is seized of the matter...it is our considered view that the HC takes the petition on an early date…We permit the petitioners to mention the…petition before the Bench presided over by the Ld. Chief Justice of the Patna High Court. Ld."

A Bench comprising Justices D.Y. Chandrachud and Hima Kohli also requested the Chief Justice to take up the petition at the earliest; precisely, in the course of the present week.

"Ld. Chief Justice is requested to take up the petition on an earlier date given the urgency and having due regard to the fact that a counter is being filed and no rejoinder is necessitated. CJ may…take up the petition during the course of the present week ending on (this Friday)."

The High Court by the impugned order dated 02.09.2022 had directed the State and other respondents to file their response in a week's time and the petitioner to file rejoinder within one week thereafter. Accordingly, the petition is put up for hearing on 29th Sept, 2022. However, in the meanwhile, the State of Bihar has notified on 09.09.2022 that the municipal election will be held on 10.10.2022. Senior Advocate, Mr. Ranjit Kumar, appearing for the State of Bihar informed the Supreme Court Bench that he would file the counter affidavit before the High Court during the course of the day and Senior Advocate, Ms. Meenakshi Arora appearing on behalf of the petitioner stated that given the urgency in the matter she would not file a rejoinder and proceed with arguments. In the light of the same, the Apex Court asked the High Court to hear the matter by Friday (23rd Sept).

On 01.04.2022, a letter was sent by the Urban Development and Housing Department, Government of Bihar 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 programme for the municipal bodies in the State. In view of the same, the SEC was asked to initiate the election process. The petitioner had challenged the communication dated 01.04.2022, before the Patna High Court seeking directions to the State Government and other concerned authorities to implement the directions issued by the Apex Court in Vikas Kishanrao Gawali v. State of Maharashtra & Ors., (2021) 6 SCC 73 wherein the Apex Court had noted that triple test is to be followed before provisioning reservation for OBC category.

The said triple test involves -

(1) setting 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) 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 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.

The petition argues that in terms of the larger issue, the directions regarding the OBC reservation in local body elections are to be complied with by all States and UTs. The petition has also sought directions to the State Government to implement the orders passed in similar petitions for local body polls in Maharashtra and Madhya Pradesh.

Ms. Arora argued that if OBC reservation is to be incorporated in the upcoming election it has to be as per the report of the Dedicated Commission. Otherwise, the municipal elections would be held on the basis of existing reservation. She averred that as stated in the Constitution Bench judgment in K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr. there ought to be contemporaneous empirical data. For determining the patterns of backwardness that act as barriers to political participation there should be a Dedicated Commission.

Ms. Arora pointed out that the State of Bihar has not appointed a Dedicated Commission and the data that is being used for reservation is collected by the State Election Commission itself.

"There is no Dedicated Commission. The State Election Commission is collecting whatever data they can for reservation."

She also emphasised that the Constitution Bench had clarified that identification of "backward classes" under Article 243-D(6) and Article 243-T(6) of the Constitution of India, 1950 is distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4). However, as per her submissions, the State Government is applying reservation in service for reserving seats in the local bodies elections.

"This reservation (in local bodies) is very different from A. 15 and A. 16 reservations. But, they are following reservations in service. I'll show that…They are applying for the reservation in service. That cannot be done."

[Case Title: Sunil Kumar v. State of Bihar And Ors. SLP(C) No. 16081/2022]

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